Important New Decisions - April 25, 2011

Plaintiff's Self-serving Declaration Is All That Required for the Dissolution on Irretrievably Broken Ground

In AC v DR, --- N.Y.S.2d ----, 2011 WL 1137739 (N.Y.Sup.) on a prior motion to the court, in which the husband sought full consolidation of Action 1 and Action 2, the wife sought joinder of the actions for trial, without consolidation, so that she could pursue the benefits of the newly enacted matrimonial legislation available to all actions commenced after October 12, 2010. By decision and order dated January 18, 2011, the court directed that Action 1 and Action 2 be joined for trial and discovery. In Action 2, the wife moved to partake in the benefits of the new matrimonial legislation and sought pendente lite maintenance and counsel fees as well as partial summary judgment on grounds (DRL 170[7] ) under the new law. The Court observed that the newly enacted matrimonial legislation, effective October 12, 2010, provides a new no-fault ground for divorce, DRL 170(7), as follows: (7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath ... Citing a Massachusetts case the Supreme Court concluded that the decision that a marriage is irretrievably broken need not be based on any objectifiable fact. It is sufficient that one or both of the parties subjectively decide that their marriage is over and there is no hope for reconciliation (Citing Caffyn v. Caffyn 441 Mass. 487, 806 N.E.2d 415 [2004] ). It concluded that a plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken. It asserted that the conclusion, that it is sufficient that a party subjectively decide that their marriage is over, finds support in the reasoning of other courts. (citing In re Marriage of Walton, 28 Cal.App.3d 108, 117 [1972]; Joy v. Joy, 178 Conn. 254, 255 [1979]; Mattson v. Mattson, 375 A.2d 473, 475 [Me. 1977]; Matter of the Marriage of Dunn, 13 Or.App. 497, 501-502, n. 1 [1973] Caffyn v. Caffyn, supra, n. 17 ). In the court's view, the Legislature did not intend nor is there a defense to DRL 170(7). Nevertheless, while the court would ordinarily grant partial summary judgment to movant, where there are no defenses and no triable issues of fact, the court pointed out that the new legislation directs that "no judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts; fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce". (DRL 170 [7] ). It noted that it had been the practice of the Part, when deemed appropriate, to hold bifurcated trials with respect to grounds for the purpose of disposing of fault issues so, if a divorce was granted, the court could concentrate its resources on equitable distribution. If a divorce was not granted, issues of support and custody, as well as related issues, always remained before the court. This was in aid of judicial economy. Yet, even in those cases where a divorce was granted, the court always held entry of judgment in abeyance pending determination of all other issues, as now set forth in detail in the new legislation. Since the new legislation directs that a judgment of divorce may not be "granted " when the cause of action is predicated on the no-fault ground until all the financial issues are complete, the court concluded that a motion for partial summary judgment cannot be granted nor can a bifurcated trial be held with respect to DRL 170(7). To continue this practice would allow fault trials on one party's claim to advance in time against the other party's no-fault claim. Moreover, since there is no defense to the no-fault ground, no judicial economy would be served by having a bifurcated trial on fault grounds, the only purpose of which was to determine whether a divorce would be granted in the first instance, and a divorce would be granted in this case provided the matter proceeds to its expected conclusion. Therefore, the wife's motion for partial summary judgment was denied, and that portion of the court's previous order, dated January 18, 2011, that directed a bifurcated trial on fault grounds was sua sponte recalled and vacated.

Anglo-American Custom to Give Child the Father's Name Is Not an Objection to Hyphenated Name

In Matter of Eberhardt, --- N.Y.S.2d ----, 2011 WL 1206136 (N.Y.A.D. 2 Dept.), 2011 the mother petitioned the Supreme Court for permission to change the child's surname by hyphenating the father's surname with the mother's surname. The impetus for the change was the mother's use of both parties' surnames on the child's application for a passport. The father, before signing the application, redacted the mother's surname. The mother reinserted her surname and filed the application, leading the father, once he saw the child's passport, to contact federal officials and ask that the passport reflect her legal name. The Appellate Division observed that to the extent the father's objection was based on traditional values, meaning that it is Anglo-American custom to give a child the father's name, the objection was not reasonable, because neither parent has a superior right to determine the surname of the child (citing Swank v. Petkovsek, 216 A.D.2d 920; Matter of Bell v. Bell, 116 A.D.2d 97, 99; Matter of Cohan v. Cunningham, 104 A.D.2d 716; Rio v. Rio, 132 Misc.2d at 319).

Family Court May Prohibit Mother from Telling Child That Any Man Other than the Father Is Child's Biological Father

In Matter of Buxenbaum v Fulmer, --- N.Y.S.2d ----, 2011 WL 1206140 (N.Y.A.D. 2 Dept.) the Appellate Division held that the Family Court's determination that there had been a change in circumstances since the issuance of the prior order of custody and visitation dated January 28, 2008, and that it was in the child's best interests to award sole custody to the father, was supported by a sound and substantial basis in the record. It held that Family Court properly took judicial notice of the order of filiation entered on consent. The Family Court's determination that the mother could not testify, in rebuttal to the admission of the order of filiation, that she had lacked the capacity to consent to the order of filiation, was not an improvident exercise of discretion (see Matter of Lane v. Lane, 68 AD3d 995, 997). The Family Court providently exercised its discretion in prohibiting the mother from telling the child that any man other than the father is the child's biological father (citing Matter of Powell v. Blumenthal, 35 AD3d 615, 617).

Error For Supreme Court to Disregard Parties Stipulation

In Aloi v Simoni, 918 N.Y.S.2d 506 (2 Dept 2011) the Appellate Division observed that where the determination as to equitable distribution has been made after a nonjury trial, the trial court's assessment of the credibility of witnesses is afforded great weight on appeal. It held that Supreme Court erred in disregarding the parties' stipulation that the appreciation in the value of the plaintiff's retirement account during the course of the marriage was the sum of $25,189. The plaintiff was entitled to 50% of the sum of the appreciation of the parties' respective retirement accounts (50% of $450,115 + $25,189 = $237,652). In calculating the amount to be paid to the plaintiff, the defendant was entitled to a credit of the appreciation remaining in the plaintiff's account ($25,189). Accordingly, the amended judgment had to be modified to direct the defendant to pay the plaintiff the sum of $212,463. The Supreme Court also erred in failing to award interest on the plaintiff's distributive award from the date of the decision until the entry of the judgment, and from the entry of the judgment to the date of payment. In exercising its discretionary power to award an attorney's fee, the court may consider, among other things, "whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation" Here, there was a significant economic disparity between the defendant and the plaintiff, and the complexity of the defendant's business endeavors, as well as the defendant's uncooperativeness with discovery and with sorting out his financial affairs, greatly contributed to the high cost of the litigation. Under these circumstances, it was appropriate to award the plaintiff one half of her total counsel fees, which, after crediting the defendant for his payment of interim counsel fees, amounted to $81,103.

Needs of a Child must Take Precedence over the Terms of the Agreement Where Needs Not Met

In Duggan v Duggan, --- N.Y.S.2d ----, 2011 WL 1331920 (N.Y.A.D. 2 Dept.), the father, and the mother entered into stipulation of settlement on February 26, 2009, to end their marriage. They had four children. The stipulation noted that the father's annual gross income was $475,000, whereas the mother had no income. It further noted that, according to the child support percentage calculation provided in the Child Support Standards Act the father's monthly child support obligation would be $11,929.54. The parties, however, agreed to deviate from this calculation, and set the father's monthly child support obligation at $8,000. The mother filed a petition seeking child support arrears. At the ensuing hearing, the husband stated that his yearly income had dropped from $475,000 to $466,757, and he argued that, pursuant to the language in the stipulation, this decrease in income entitled him to an 80 percent decrease in his child support payments, to $1,600 per month. In a fact-finding order dated April 21, 2010, the Family Court denied the father's motion to dismiss the petition, holding that his interpretation of the stipulation was "not plausible." The same court issued an order on the same day, in which it directed the father to pay the mother child support arrears in the sum of $19,200. The father filed objections, and the Family Court denied the objections in an order dated June 14, 2010. The Family Court held that the language of the stipulation, as interpreted by the father, would violate the CSSA, and was against the best interests of the children. The Appellate Divison held that Family Court was without jurisdiction to modify the terms of a separation agreement absent a showing of an unanticipated and unreasonable change in circumstances, which the father had not alleged here (citing Kleila v. Kleila, 50 N.Y.2d 277). But the Family Court does have the authority to interpret and enforce the provisions of a separation agreement.. It pointed out that "When interpreting a contract, such as a separation agreement, the court should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized" (Matter of Schiano v. Hirsch, 22 AD3d at 502). But "the needs of a child must take precedence over the terms of the agreement when it appears that the best interests of the child are not being met" (Matter of Gravlin, 98 N.Y.2d 1, 5). Thus, the Family Court had the authority to find that a provision in a stipulation of settlement violates the CSSA. The stipulation here provided that, according to the child support percentage calculation provided in the CSSA, the father's monthly child support obligation would be $11,929.54 per month. But the parties agreed to deviate from this calculation, on the grounds that it was in the best interests of the children and that the children's needs would be met, and set the father's monthly child support obligation at the sum of $8,000 per month. The father now sought to use the provision at issue to lower his child support obligation--for four children--to $1,600 per month, or 13% of the presumptive support level based on the CSSA. He sought to do this because his income dropped by 1.7%--from $475,000 per year to $466,757 per year. The Appellate Division concluded that Family Court properly found that this was against the best interests of the children.

Not Reversible Error to Deny Party’s Right to Make Opening Statement

In Matter of Sagese v Steinmetz, --- N.Y.S.2d ----, 2011 WL 1306419 (N.Y.A.D. 3 Dept.) Petitioner (father) and respondent (mother) were the parents of a daughter (born in 2004). The mother also had another child. In 2006, the parties consented to an order which granted them joint legal and physical custody of the child. In April 2009, based on allegations that there was a drug overdose in the residence where the mother resided, the father commenced a modification proceeding seeking sole custody of the child. In response, the mother filed a family offense petition and criminal complaint against the father alleging that the father struck her on the mouth during an argument. The father was subsequently arrested for assault, at which time he was found to be in possession of marihuana. The assault charge was later adjourned in contemplation of dismissal and the father paid a fine for the marihuana violation. In August 2009, Family Court issued a temporary order of custody providing that the parties share joint legal custody of the children, that the children reside with the paternal grandfather and, based on the father's marihuana conviction, that he submit to a chemical dependency evaluation. The resulting evaluation, based in part on a positive drug screen, diagnosed the father with cannabis abuse and recommended treatment. After a fact-finding hearing, Family Court awarded the parties joint legal custody of the children. Family Court further ordered that the father successfully complete chemical dependency treatment. The Appellate Divison rejected the father’ argument that Family Court committed reversible error by denying the father the right to present an opening statement. While a party to a civil proceeding has the right to make an opening statement (see CPLR 4016 [a]; De Vito v. Katsch, 157 A.D.2d 413, 415 [1990] ), it found that Family Court's error did not require reversal since the court was fully familiar with the facts of the case, the parties and their respective arguments through the numerous court appearances during the year prior to trial (citing Lohmiller v. Lohmiller, 140 A.D.2d 497, 497 [1988] ). The court held that Family Court did not err in ordering the father to attend substance abuse treatment. So long as a party's right to access to his or her child is not conditioned on participation in, or completion of, counseling, Family Court may, as part of its visitation or custody order, direct a party to obtain substance abuse treatment or counseling if such treatment or counseling will serve the children's best interests. In this regard, evidence of a party's continuous use of an illegal drug is certainly relevant to a determination of whether substance abuse treatment for the parent is in the children's best interests. Here, the father had already been convicted of the violation of unlawful possession of marihuana and, at the fact-finding hearing, he admitted to smoking marihuana "no more than once or twice per week" and during the pendency of his custody proceeding. While Family Court found the father to be a good parent, it did not find his testimony--that he did not purchase the drug, keep it in his home or use it in the presence of the children--to be credible. Family Court was also unpersuaded that the father's routine use of marihuana--which the record reflected could affect a person's judgment, memory and problem-solving ability--posed no risk to the children. Finally, to the extent that the father argued that treatment would create a financial burden, the record reflected that costs are based on ability to pay and the father was eligible to apply for Medicaid benefits, which would completely cover the costs of treatment.

Not Error to Suspend Child Support Payment Where Child Not of Employable Age

In Dobies v Brefka, --- N.Y.S.2d ----, 2011 WL 1307284 (N.Y.A.D. 3 Dept.) Petitioner (father) and respondent (mother) were the unmarried parents of two children, Jaclyn (born in 1993) and Nikolas (born in 1995). In October 2008, the father commenced violation proceedings. Family Court, inter alia, granted the father sole physical and legal custody of Nikolas, terminated the father's child support obligations for Jaclyn, and suspended the father's child support obligations for Nikolas..The father claimed that a sufficient change in circumstance had occurred since entry of these prior orders based on, among other things, the mother's deliberate attempts to influence and disrupt the father's parenting time with the children. At the hearing of this matter, the father testified that he had not had any visitation with Jaclyn since March 2007 and has had no weekend parenting time with Nikolas between August 2008 and March 2009. The father recounted multiple examples of alienating behavior engaged in by the mother, including in the spring of 2007 when the mother refused to let Nikolas participate in visitation with the father because of inclement weather--despite the fact that both parties had already driven to the custody exchange point. The father also testified that, in 2007, the mother told Jaclyn that she did not have to participate in the spring break visit with the father. The father further testified that on two occasions--in April 2007 and at the commencement of Father's Day weekend in June 2007--when Jaclyn refused to participate in visitation with the father, the mother indicated that there was nothing she could do about it and that Jaclyn had a mind of her own. The father also testified that during an attempted exchange occurring in the summer of 2007 at a restaurant parking lot--an exchange that never occurred--the mother refused to transfer Nikolas' suitcase to the father's car and then laughed at the father and took a photograph of him with her cell phone while she walked inside the restaurant with the children. Family Court found the mother's explanations for her conduct insufficient and her "credibility to be seriously impaired and her testimony contradictory throughout the trial, particularly when she denied actively discouraging the children from having a relationship with their father." Thus, there was sufficient evidence in the record supporting the court's conclusion that the mother interfered in the father's relationship with the children, such that the father established the requisite change in circumstances. While a determination of the children's best interests must be based on a totality of the circumstances "[e]vidence that the custodial parent intentionally interfered with the noncustodial parent's relationship with the [children] is so inconsistent with the best interests of the [children] as to, per se, raise a strong probability that [the offending party] is unfit to act as custodial parent". The Appellate Divison held that Family Court did not err in terminating the father's child support obligation for Jaclyn and suspending the father's child support obligation for Nikolas. Child support payments may be suspended " '[w]here it can be established by the noncustodial parent that the custodial parent has unjustifiably frustrated the noncustodial parent's right of reasonable access' " (Usack v. Usack, 17 AD3d 736, 737-738 [2005] ). In addition, child support payments may be deemed forfeited when "a child of employable age ... actively abandons the noncustodial parent by refusing all contact and visitation, without cause, ... a concept sometimes referred to as the doctrine of self-emancipation" (Labanowski v. Labanowski, 49 AD3d 1051, 1053 [2008] ). However, abandonment by a child who is not "of employable age" cannot be deemed to constitute constructive emancipation (Foster v. Daigle, 25 AD3d at 1004) Family Court's determination that the mother deliberately frustrated the father's relationship with Nikolas had a sound and substantial basis in the record. While it agreed with the mother that Jaclyn, who was only 16 years of age at the time of the court's order, was unable to abandon the father so as to forfeit his support obligation and, thus, Family Court erred in terminating the father's child support obligation as to her the facts clearly supported a finding that the father's support obligation should also be suspended with respect to Jaclyn based on the mother's conduct in deliberately frustrating his relationship with Jaclyn . Accordingly, the father's support obligations with respect to Jaclyn were suspended pending further court order upon a showing that the mother has made good faith efforts to actively encourage and restore the father's relationship with the children.

Husbands Claim of Extreme Hardship Rejected Where No Appreciable Change in Lifestyle.

In Taylor v Taylor, --- N.Y.S.2d ----, 2011 WL 1440992 (N.Y.A.D. 2 Dept.) the parties 2005 stipulation of settlement, which was incorporated but not merged into their divorce judgment, provided that the plaintiff would have custody of the children, and that the defendant would pay maintenance and child support in an agreed-upon amount. The stipulation also provided that the defendant waived his right to seek any downward modification of his maintenance obligation until August 1, 2012, "excluding an unforeseen, unanticipated catastrophic event, that so negatively impacts the Husband's health or earning capacity as to result in 'extreme hardship' to him as that term is set forth in [Domestic Relations Law] 236(B)(9)(b)." After the defendant lost his job at Bear Stearns in 2008 and was hired by Natixis, a French bank, the defendant moved for a downward modification of his maintenance and child support obligations. After a hearing, Supreme Court denied defendant's motion for a downward modification of his maintenance obligation. The Appellate Division observed that the evidence at the hearing showed that, although the economic downturn resulted in the defendant losing his job at Bear Stearns and earning a substantially smaller bonus in 2009 than he had received in previous years at Bear Stearns, the defendant's base salary and compensation plan at Natixis were similar to his base salary and compensation plan at Bear Stearns. Moreover, the evidence at the hearing showed that the economic downturn did not result in any appreciable change in the defendant's lifestyle. Accordingly, the defendant failed to demonstrate that continued enforcement of his obligation to pay maintenance under the parties' stipulation of settlement would create an "extreme hardship" .

Important New Decisions - April 18, 2011

Party Must Prevail on All Issues to Be Awarded Counsel Fee Pursuant to Agreement Provision

In Matter of Bederman v Bederman, --- N.Y.S.2d ----, 2011 WL 749719 (N.Y.A.D. 2 Dept.) the parties' stipulation of settlement which was incorporated but not merged into their judgment of divorce entered September 24, 2004, provided that in the event the parties agreed, or a court determined, that the parties' child should attend private preschool, elementary, or secondary school, the parties would proportionately share any educational expenses. The mother commenced a proceeding seeking reimbursement from the father for private school tuition and to direct the father to pay his proportionate share of religious education expenses. The Appellate Division fount that the record supported the Support Magistrate's findings that the father was not required to pay certain private school tuition payments for previous years which were gifts from the maternal grandmother, and that the father was not required to pay for religious education expenses under the terms of the parties' stipulation of settlement. The Support Magistrate also properly denied the mother's request to direct the father to pay his monthly child support through the Nassau County Support Collection Unit pursuant to Family Court Act 440(2). The stipulation of settlement provided for an alternate arrangement for the payment of child support in the form of direct payment to the mother unless the father defaulted in his child support payments and the record established that the father was not in arrears on his child support obligations. It also held that the mother was not entitled to an award of an attorney's fee, as she did not prevail on all issues (citing D'Amico v. D'Amico, 251 A.D.2d 616).

Court Cannot Issue a QDRO More Expansive or Encompassing Rights Not Provided in Underlying Stipulation

In Coulon v Coulon, --- N.Y.S.2d ----, 2011 WL 924351 (N.Y.A.D. 2 Dept.) the defendant appealed from so much of a Qualified Domestic Relations Order of the Supreme Court as designated the plaintiff as a surviving spouse under the pre-retirement and post-retirement survivor annuity provisions of his pension plan, and directed that she receive a share of such benefits in the event of his death. On the Court's own motion, the appellant's notice of appeal was treated as an application for leave to appeal, and leave to appeal was granted (see CPLR 5701[c] ). The Qualified Domestic Relations Order was reversed on the law and the matter was remitted to the Supreme Court for the entry of an amended Qualified Domestic Relations Order in accordance. The Appellate Division observed that a Qualified Domestic Relations Order entered pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment. Thus, a court cannot issue a QDRO more expansive or encompassing rights not provided in the underlying stipulation. Here, the parties' 1992 stipulation of settlement, which was incorporated but not merged in their judgment of divorce, provided for the plaintiff to receive a share of the defendant's pension in accordance with Majauskas v. Majauskas (61 N.Y.2d 481). However, "pension benefits and death benefits are two distinct matters" ( Kazel v. Kazel, 3 NY3d 331, 334), and a stipulation which is silent as to death benefits cannot be read to include an intent to include such benefits (McCoy v. Feinman, 99 N.Y.2d at 303). Since the parties' stipulation contained no provision entitling the plaintiff to be designated as a surviving spouse under the pre-retirement and post-retirement survivor annuity provisions of the defendant's pension plan and to receive a share of such benefits in the event of his death, it was error for the Supreme Court to include such a provision in the QDRO.

Decision Denying Mothers Request to Relocate with Children Reversed Where Family Court Did Not Give Appropriate Weight to Domestic Violence.

In Matter of Clarke v Boertlein, --- N.Y.S.2d ----, 2011 WL 924280 (N.Y.A.D. 2 Dept.), Family Court awarded the mother custody of the parties' three children, but denied her motion for permission to relocate with the parties' three children to Pennsylvania. The Appellate Divison reversed the order and granted her permission to relocate. The parties were the parents of three children, ages 10, 6, and 4. In August 2008 the mother removed the children from their home in Yaphank, New York, and moved to Bellefonte, Pennsylvania, where one of her sisters resided, allegedly to escape the father's domestic violence. The mother obtained an order of protection and temporary custody from a court in Pennsylvania. In November 2008 the mother reconciled with the father and returned with the children to New York, only to leave with the children again to Pennsylvania in April 2009. The father then commenced this proceeding in the Supreme Court (IDV Part), seeking custody of the children. The mother moved for an award of custody and permission to relocate with the children to Pennsylvania. After a hearing, the Supreme Court awarded the mother custody, but denied her request for permission to relocate with the children to Pennsylvania. The Appellate Divison pointed out that the disposition of a petition for permission to relocate with minor children rests upon a determination of the best interests of the children. Moreover, "[d]espite the multitude of factors that may properly be considered in the context of a relocation petition, the impact of the move on the relationship between the child[ren] and the noncustodial parent will remain a central concern" (Matter of Tropea v. Tropea, 87 N.Y.2d at 739). Upon its review of the record, it found that Supreme Court's determination to deny the mother permission to relocate with the children to Pennsylvania lacked a sound and substantial basis in the record. The record demonstrated that the mother had at all times served as the primary caregiver to the children and had displayed a continued commitment to their needs, whereas the father showed little involvement with the children when the parties lived together. The Supreme Court failed to give enough weight to the mother's allegations of domestic violence, often in the presence of the children, which permeated the parties' relationship and caused the mother to remove herself and the children from the parties' home. While the father denied that there was any domestic violence in the home, the Supreme Court noted that the father exhibited his temper during the course of the hearing when he left the witness stand while yelling at the mother's attorney. The father also admitted that he engaged in harassing and intimidating behavior after the mother left, such as calling the mother's cell phone numerous times each day, questioning the oldest child as to the mother's whereabouts, and placing a tracking device on the mother's car. Contrary to the Supreme Court's finding, the mother's move to Pennsylvania did not appear to have been motivated by bad faith but, rather, was an opportunity to escape domestic violence in the home, to reside in close proximity to supportive family members, and to secure affordable housing. The mother testified as to her unsuccessful attempts to obtain affordable housing on Long Island, and compared those attempts to her ability to secure a suitable rental home in Pennsylvania near where her sister resides with her family and the maternal grandmother. Testimony also revealed that the children were adapting well to their new surroundings, and were living with their half-brother in close proximity to their aunt and maternal grandmother, and that the two oldest children were attending school and receiving educational services. In contrast, the record suggested that the father opposed the relocation in order to harass the mother and in order to keep the mother in close proximity to facilitate his efforts to reconcile with her.

Divorce Based upon Cruelty Affirmed Where Husband Threatened to Kill Wife

In Siu Nam Wong Pun v Che Kwok Pun, --- N.Y.S.2d ----, 2011 WL 1046040 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order which granted plaintiff a divorce on the grounds of cruelty. Plaintiff testified that during the marriage, defendant regularly lost his temper and yelled at her, verbally abused and demeaned her, and made disparaging remarks in response to her cancer diagnosis. She further testified that several years before she commenced this action, defendant choked her. In addition, she testified that he frequently yelled at her insisting that the family had to listen to him because he was the master of the household. Plaintiff recounted defendant's threat to kill her if she sought a divorce, and explained that she ultimately moved out because she feared defendant and was concerned for her safety. This testimony, portions of which were corroborated by the testimony of the parties' adult son, was sufficient to support the finding of cruel and inhuman treatment. Although plaintiff periodically returned to the marital residence after she moved out, she credibly explained that she did so to cook and clean the residence for her sons, who resided there. The lower court was not persuaded by defendant's claim that this behavior undermined plaintiff's contention that it was unsafe and improper for her to cohabit with defendant, and the Appellate Division agreed with that determination. Moreover, plaintiff testified that when she did return on occasion, defendant scolded and berated her.

Appellate Division Affirms Order Denying Counsel Fee to Attorney Who Agreed to Accept Litigation Assignment with No Guarantee of Compensation

In Moccia v Moccia, --- N.Y.S.2d ----, 2011 WL 1088033 (N.Y.A.D. 2 Dept.) the defendant wife in this divorce action was unable to afford counsel. The Supreme Court assigned the nonparty-appellant, Eric Ole Thorson (appellant), to represent the wife without compensation from her, "without prejudice to [a] motion by counsel for compensation pursuant to CPLR 1102(d), DRL Section 237, Judiciary Law Section 35 or as otherwise provided by law." The parties engaged in discovery, prepared for trial, and successfully negotiated a settlement agreement. The Supreme Court denied the appellant's motion for an award of an attorney's fee to be paid by the plaintiff husband. The Appellate Division affirmed. It pointed out that a court may award an attorney's fee in a divorce action to a spouse to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties (Domestic Relations Law s 237[a]). While the husband's income from the Yonkers Parking Authority was greater than the wife's income, his earnings were nevertheless modest and they were expended, in large part, on the wife and their children, as he paid, among other things, the mortgage and home equity loan, plus utilities on the marital home. In this regard, the Supreme Court properly considered the terms of the parties' settlement agreement and statements of net worth, which reflected the husband's income and expenses, limited assets, outstanding mortgage, the absence of savings, and debt to his own counsel, in determining that the parties' financial circumstances were "not that disparate so as to warrant an award of counsel fees." The Appellate Division commended any attorney who, as here, agrees to accept a litigation assignment with no guarantee of compensation, but held that the denial of an award of an attorney's fee in this case was not an improvident exercise of the Supreme Court's discretion. Judges Austin and Belen dissented.

Supreme Court Lacked Jurisdiction to Impose Obligations in the Amended Judgment upon the Nonparty-appellant Insurance Company

In Flangos v Flangos, --- N.Y.S.2d ----, 2011 WL 1088123 (N.Y.A.D. 2 Dept.) the Appellate Division held that Supreme Court lacked jurisdiction to impose obligations in the amended judgment upon the nonparty-appellant insurance company. A court has no power to grant relief against an entity not named as a party and not properly summoned before the court (Riverside Capital Advisors, Inc. v. First Secured Capital Corp., 28 AD3d 457, 460). Accordingly, the Supreme Court should have granted that branch of the nonparty-appellant's motion which was to vacate so much of the amended judgment as directed it to make certain payments. Similarly, the Supreme Court erred to the extent that it, sua sponte, in effect, amended a provision in the amended judgment directing the nonparty-appellant to give notice of stated proposed changes in the payments. Contrary to the plaintiff's contention, the amended judgment itself was not a proper income execution order under CPLR 5241, nor is it a proper income deduction order under CPLR 5242.

Supreme Court Erred in Directing Husband to Transfer to Wife Title to Property Owned by a Corporation over Which the Supreme Court Lacked Jurisdiction.

In Manning v Manning, --- N.Y.S.2d ----, 2011 WL 1088041 (N.Y.A.D. 2 Dept.) the Appellate Divison observed that in order to sustain a finding of civil contempt under Judiciary Law 753 based on a violation of a court order, it is necessary to establish by clear and convincing evidence that a lawful court order clearly expressing an unequivocal mandate was in effect, that the person alleged to have violated the order had actual knowledge of its terms, and that the violation has defeated, impaired, impeded, or prejudiced the rights of a party . Here, the evidence was sufficient to establish that the defendant knowingly disobeyed the Supreme Court's order directing him to pay an expert to ascertain the value of his business and also failed to comply with the pendente lite support order. Consequently, the Supreme Court properly adjudicated the defendant in contempt of court. It noted that a court is not required to rely upon a party's account of his or her finances in determining that party's income. It agreed with the defendant that the Supreme Court erred in directing him to transfer title to certain commercial real property to the plaintiff. The commercial property at issue was owned by a corporation over which the Supreme Court lacked jurisdiction.