Appellate Division,
Second Department
Party claiming an investment account was
actively managed has the burden of proof with respect to the claim. Expenses of leisure, extracurricular and
enrichment activities are encompassed within the basic child support award. A
court can order a parent to pay these expenses over and above basic child
support, but it is a deviation from the basic statutory formula and requires an
analysis under the factors set forth in Domestic Relations Law § 240(1–b)(f).
In
Sinnott v Sinnott, --- N.Y.S.3d ----, 2021 WL 1901679, 2021 N.Y. Slip Op. 03073
(2d Dept,2021) the parties were married in 1989, and were the parents of one
child born in 2003, as well as two emancipated children. The plaintiff
commenced this action on February 16, 2016, by filing a summons and complaint.
Pursuant to a so-ordered custody and parenting stipulation, the plaintiff had
sole legal and residential custody of the child. The defendant appealed from so
much of the judgment as denied him a separate property credit of $937,000, (2)
directed him to pay child support and add-on expenses until the child reached
the age of 22 years and six months under stated circumstances, (3) directed him
to pay 80% of the child’s private high school tuition, fees, books, supplies,
materials, class trips, enrichment activities, and all school-related expenses,
and (4) directed that certain investment accounts be equally divided between
the parties without specifying a date of valuation for those accounts or limiting
distribution only to marital property. The plaintiff cross-appealed from so
much of the judgment as (1) directed the defendant to pay child support of only
$4,281.44 per month and only 80% of add-on expenses for the child, (2) declined
to make the award of maintenance and child support retroactive to the date of
commencement of the action, (3) declined to direct the defendant to pay the
cost of health insurance for the plaintiff, and (4) declined to direct the
defendant to obtain or maintain life insurance in an amount sufficient to
secure his support obligations.
The
defendant contended on appeal that the Supreme Court erred by failing to direct
that the plaintiff’s investment accounts should be valued as of the date of
commencement of the action, and that only marital property in those accounts
should be subject to equitable distribution. The valuation date of a marital
asset may be set “anytime from the date of commencement of the action to the
date of trial. The court failed to set forth the valuation date for the
investment accounts . The party claiming that an account was actively managed,
or contained separate property not subject to equitable distribution, has the
burden of proof with respect to those claims. The defendant failed to provide
evidence as to whether the accounts in question were actively managed or
passive. The Supreme Court therefore did not improvidently exercise its
discretion in treating those accounts, in effect, as passive accounts, by its
direction that the accounts be liquidated within 30 days from the entry of the
decision after trial and that the resulting proceeds be divided 50–50. However,
since assets must be valued at a date not earlier than an action’s commencement
nor later than the trial it modified modify the judgment to the extent of
directing that the accounts be valued as of August 28, 2018, the first date of
trial.
The Appellate Division held that the
Supreme Court made numerous errors when calculating the defendant’s basic child
support obligation under the Child Support Standards Act (CSSA). Supreme Court
incorrectly calculated his gross income for 2017. The defendant’s gross (total)
income as should have been ... reported in the most recent federal income tax
return was $1,037,044, and, the defendant’s gross income for CSSA purposes was
$1,061,044.25. The defendant’s income for CSSA purposes was $975,399.57. The
plaintiff’s income for CSSA purposes was $78,000 per year. The defendant’s
share of the basic annual support obligation was 92.6% of $25,160 or the annual
sum of $23,298.16. It modified the judgment of divorce to direct the defendant
to pay the plaintiff $4,591.42 per month in basic child support.
Regarding
the add-on for uncovered, unreimbursed medical and related expenses,
responsibility for future reasonable unreimbursed health care expenses shall be
prorated in the same proportion or percentage as each parent’s income bears to
the combined parental income. It modified the judgment of divorce to provide
that the defendant’s pro rata share of the child’s uncovered, unreimbursed
medical and related expenses was 92.6%, the same proportion as his income was
to the combined parental income
The
Appellate Division noted that education expenses are not directly connected to
the basic child support calculation” and are not necessarily prorated in the
same proportion or percentage as each parent’s income bears to the combined
parental income. Supreme Court did not improvidently exercise its discretion by
directing the defendant to pay 80% of the child’s tuition at Marymount High
School of New York, or a similar private high school, nor by requiring the
defendant to pay 80% of the child’s fees, books, supplies, and materials.
The
Appellate Division held that Supreme Court improvidently exercised its
discretion by directing the defendant to pay 80% of the child’s class trips,
enrichment activities, and all other school related expenses. Basic child
support, when calculated properly, is presumed to meet all the child’s basic
needs. Thus, the expenses of leisure, extracurricular and enrichment
activities, such as after-school clubs, sporting activities, etc., are usually
not awarded separately, but are encompassed within the basic child support
award. A court can order a parent to pay these expenses over and above basic
child support. However, if it does so, it is a deviation from the basic
statutory formula and requires an analysis under the factors set forth in
Domestic Relations Law § 240(1–b)(f). Although all the factors do not have to
present, the court needs to articulate its reasons for making such a deviation
from basic child support and relate those reasons to the statutory paragraph
(f) factors. Here, the Supreme Court did not provide a benchmark for what class
trips, enrichment activities, and all other school related expenses could
include and there was no cap on the total cost. In any event, under the
circumstances of this case, it found that the award of basic child support was
sufficient to meet these needs.
The
Appellate Division held that Supreme
Court improperly defendant to pay basic child-support and add-on expenses for
the child after she reaches the age of 21. A parent has no legal obligation to
provide for or contribute to the support of a child over the age of 21.
The
Appellate Division held that Supreme Court should not have directed the
defendant to pay maintenance and child support commencing on the first day of
the first month following its decision after trial. A party’s maintenance and
child support obligations commence, and are retroactive to, the date the
applications for maintenance and child support were first made, which, in this
case, was February 16, 2016. However, the party is also entitled to a credit
for any amount of temporary maintenance and child support already paid. Here,
the defendant may be entitled to credit for voluntary child support payments
which were made prior to a pendente lite order dated August 16, 2017, and for
voluntary maintenance payments made during the pendency of the action. In
addition, he was entitled to a credit for any amount of temporary maintenance
and child support which was paid pursuant to the pendente lite order. It
remitted the matter to the Supreme Court, for a determination as to the amount
of retroactive child support, including add-ons, and maintenance arrears from
February 16, 2016, giving the defendant appropriate credits
The
Appellate Division held that under the circumstances of this case, the Supreme
Court should have directed the defendant to pay the plaintiff’s health
insurance costs during the period the defendant is obligated to pay
maintenance, and should have directed the defendant to obtain or maintain a
policy of life insurance for the benefit of the plaintiff and the child in an
amount sufficient to secure his maintenance, child support, and health
insurance obligations.
Under UIFSA Florida retained exclusive
jurisdiction over his child support obligation to the daughter, where mother
died, and father remained in Florida although daughter moved to New York and
under Florida law, his obligation to support the daughter ceased when she
turned 18
In
Matter of Nassau County Department of Social Services v Ablog, 2021 WL 1899886
(2d Dept.,2021) pursuant to a 2009 Florida judgment of divorce, the father was
obligated to pay child support for the daughter “until the child attains the
age of eighteen years or graduates from high school, as long as the child is
progressing in school and will graduate before attaining the age of nineteen
years.” The daughter resided with her mother following the judgment of divorce
until February 2018, when the mother died and the father became the custodial
parent. The daughter turned 18 years of age in September 2018. She moved to New
York in 2019. The father continued to reside in Florida. The daughter applied
for and began receiving public assistance in Nassau County. In July 2019, the
Nassau County Department of Social Services filed a petition for support on
behalf of the daughter. The father moved to dismiss the petition for lack of
subject matter jurisdiction pursuant to the Uniform Interstate Family Support
Act (UIFSA), arguing that Florida retained exclusive jurisdiction over his
child support obligation to the daughter, and that under Florida law, his
obligation to support the daughter ceased when she turned 18. The Support
Magistrate denied the motion, finding that the subject application was not
seeking to modify the father’s existing child support obligation in Florida,
but, instead, was a de novo application for support. The Appellate Division
reversed. It held that under the [Full Faith and Credit for Child Support
Orders Act] and UIFSA, the state issuing a child support order retains
continuing, exclusive jurisdiction over its child support orders so long as an
individual contestant continues to reside in the issuing state” (Matter of
Spencer v. Spencer, 10 N.Y.3d 60, 66, 853 N.Y.S.2d 274; see 28 USC § 1738B[d];
cf. Family Ct Act § 580–205). Accordingly, a state may modify the issuing
state’s order of child support only when the issuing state has lost continuing,
exclusive jurisdiction. The federal statute defines a “modification” to mean “a
change in a child support order that affects the amount, scope, or duration of
the order and modifies, replaces, supersedes, or otherwise is made subsequent
to the child support order” (28 USC § 1738B[b][8]). Under the plain language of
the federal statute, the New York order of support was a “modification” of the
Florida judgment. Since the father still resided in Florida, that state had
continuing, exclusive jurisdiction of the child support order, despite the
termination of his obligations under that order, and New York did not have subject matter jurisdiction to
modify that order.
There is a rebuttable presumption that
interim counsel fees shall be awarded to less monied spouse, and courts should
normally grant a request made by the nonmonied spouse, in the absence of good
cause to deny the request
In
Tomassetti v Tomassetti, --- N.Y.S.3d ----, 2021 WL 1897796 (Mem), 2021 N.Y. Slip
Op. 03075 (2d Dept.,2021) the plaintiff commenced an action for a divorce
against the defendant in 2017. In April 2018, the Supreme Court awarded the
plaintiff interim counsel fees of $200,000. In August 2018, the plaintiff filed
a motion seeking additional interim counsel fees of $376,524. The court granted
the plaintiff’s motion to the extent of directing the defendant to pay$165,000
to the plaintiff’s counsel. The Appellate Division observed that there is a
rebuttable presumption that interim counsel fees shall be awarded to the less
monied spouse, and courts should normally exercise their discretion to grant
such a request made by the nonmonied spouse, in the absence of good cause to
deny the request. It found that the significant disparity between the financial
circumstances of the defendant, a real estate investor and developer with
considerable disposable income and a net worth approaching $200 million, and
those of the plaintiff could not seriously be disputed. It held that, the
Supreme Court improvidently exercised its discretion in limiting, without good
cause, the plaintiff’s award of additional interim counsel fees to $165,000,
which was far less than the amount of legal fees the plaintiff had already
incurred. It found that an award of additional interim counsel fees of $370,000
was appropriate.
Supreme Court
Contract for Preservations and Disposition
of Embryos not violative of Domestic Relations Law §236(B)(3)
In
K.G., v. J.G.,--- N.Y.S.3d ----, 2021 WL 2021873, 2021 N.Y. Slip Op. 21140 (Sup
Ct, 2021) an action for a divorce, the
plaintiff moved for declaratory judgment
regarding her rights under a contract with her husband and Reproductive Medical
Associates of New York (“RMA”) containing an agreement entitled “Consent for
Cryopreservation of Embryo(s) by Couples with Joint Custody.” Plaintiff argued
that pursuant to this specific contract, she had the right to dispositional
control of the embryos created by RMA with the parties’ genetic material. Defendant cross moved for summary judgment, arguing
that the contract was unenforceable. The Consent agreement provided for of the
embryos, and the procedures for using the embryos or for transferring the
embryos should the parties wish another facility to preserve them. The
contract was made with RMA’s pre-printed
forms and was signed by the plaintiff and the defendant, but was not notarized
or subscribed and acknowledged in the form required for a deed to be recorded. Supreme
Court held that Domestic Relations Law §236(B)(3) which requires agreements
between married couples to be subscribed and acknowledged in the form required
for a deed to be recorded, was not applicable to this contract which included
services from and benefits to a third party. The Court of Appeals in Kass v.
Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174 (1998) unequivocally
stated that “agreements between progenitors, or gamete donors, regarding
disposition of their pre-zygotes should generally be presumed valid and binding
and enforced in any dispute between them.” Furthermore, IVF contracts such as
this one are not violative of public policy and are specifically encouraged by
the Kass decision. Plaintiff’s motion to declare that the post-marital
dispositional election in the Consent agreement executed on May 18, 2016 was
enforceable was granted; the defendant’s
cross motion was denied.
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