April 16, 2019
Appellate Division, Second Department
Appellate Division holds that Indian Child
Welfare Act applies to Neglect Proceeding and Shinnecock Tribe had right to
intervene
In Matter of Durpee M, v Samantha Q.,
2019 WL 1461831 (2d Dept., 2019) the mother and her husband (father) were the
parents of the child, who was born in January 2017. The father was a member of
the Unkechaug Indian Nation (Unkechaug) and the Shinnecock Tribe. In February
2017, the Suffolk County Department of Social Services (DSS) filed a petition
against the mother alleging that she derivatively neglected the child. When the
parties appeared before the Family Court on the petition, the mother=s attorney
requested that the proceeding be transferred to the Unkechaug tribal council,
and a representative of the Unkechaug, who was present pursuant to the Indian
Child Welfare Act of 1978 (25 USC ' 1901 et
seq.; hereinafter the ICWA) (see 25 USC ' 1912[a];
cf. Matter of New York City Dept. of Social Sevs. v. Oscar C., 192 A.D.2d 280,
285, 600 N.Y.S.2d 957 [noting the tribe=s right to
intervene in a child neglect proceeding]), made the same request. The only
opposition to the application was interposed by the attorney for the child.
Family Court granted the Unkechaug=s
application and, inter alia, transferred jurisdiction over the proceeding to
the Unkechaug. The Appellate Division affirmed It observed that the ICWA=s stated
purpose is Ato protect the best interests of Indian
children and to promote the stability and security of Indian tribes and
families by the establishment of minimum Federal standards for the removal of
Indian children from their families. After the passage of the ICWA in 1978, New
York amended section 39 of the Social Services Law and promulgated state
regulations (see 18 NYCRR 431.18) to comply with federal standards. Although
the ICWA applies only to federally recognized tribes (see 25 USC ' 1903[8] ),
and the Unkechaug did not appear to be so recognized, Social Services Law ' 39 and 18
NYCRR 431.18 (the New York ICWA) expand the federal definition to include
recognition of A[a]ny Indian tribe designated as such by
the state of New York@ (Social Services Law ' 39), and to
include federally recognized tribes and tribes recognized by the State of New
York or by any other state (see 18 NYCRR 431.18). The Unkechaug is so
recognized by the State of New York (see Indian Law ' 151), and
accordingly, the ICWA is applicable to the Unkechaug.
In order to determine where jurisdiction
is properly placed, the ICWA sets out a dual jurisdictional scheme that turns
on where the American Indian child resides or is domiciled (see 25 USC ' 1911).
Pursuant to the ICWA, A[a]n Indian tribe shall have
jurisdiction exclusive as to any State over any child custody proceeding
involving an Indian child who resides or is domiciled within the reservation of
such tribe, except where such jurisdiction is otherwise vested in the State by
existing Federal law@ (25 USC ' 1911[a] ).
Where, as here, the child is not domiciled on a tribal reservation, the ICWA Acreates
concurrent but presumptively tribal jurisdiction@
(Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. at 36, 109 S.Ct.
1597; see 25 USC ' 1911[b]). Accordingly, in the case of
children not domiciled on the reservation, on application of either the parent
or the tribe, Astate‑court proceedings for foster care
placement or termination of parental rights are transferred to the tribal court,
except in cases of >good cause,= objection
by either parent, or declination of jurisdiction@
(Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. at 36, 109 S.Ct.
1597; see Pitre v. Shenandoah, 2015 WL 667540, *4, 2015 U.S. Dist. LEXIS 18604,
*12 [N.D. N.Y., No. 5:14BCVB293], affd
633 Fed. Appx. 44 [2d Cir.]).
The Appellate Division observed that
ICWA provides that Athe Indian custodian of the child and
the Indian child=s tribe shall have a right to intervene
at any point@ in a proceeding to which the ICWA
applies (25 USC ' 1911[c]). Congress authorized the
Department of the Interior, Bureau of Interior Indian Affairs (DOI), to
promulgate rules and regulations Aas may be
necessary to carry out the provisions of [ICWA]@ (25 USC ' 1952). The
current regulations define the term Achild‑custody
proceeding@ as Aany action,
other than an emergency proceeding, that may culminate in@ foster‑care
placement, termination of parental rights, preadoptive placement, and adoptive
placement (25 CFR 23.2[11][1]). AAn action that may culminate in one of
these four outcomes is considered a separate child‑custody proceeding from an
action that may culminate in a different one of these four outcomes@ (25 CFR
23.2[11][2]). The DOI explained that ICWA requirements would apply to an action
that may result in one of the placement outcomes, even if it ultimately does
not. For example, ICWA would apply to an action where a court was considering a
foster‑care placement of a child, but ultimately decided to return the child to
his parents. Thus, even though the action did not result in a foster‑care
placement, it may have culminated in such a placement and, therefore, should be
considered a >child‑custody proceeding= under the
statute@ (81 Fed Reg 38778B01 at 38799).
On December 12, 2016, the DOI published Guidelines for Implementing the Indian
Child Welfare Act. The 2016 Guidelines provide, among other things, that Aif a
proceeding seeks to terminate the parental rights of one parent, that
proceeding falls within ICWA=s definition of >child‑custody
proceeding= even if the child will remain in the
custody of the other parent or a step‑parent@ (2016
Guidelines [B][2] ). The 2016 Guidelines provide that A[i]f the
child may be involuntarily removed from the parents or Indian custodian or the
child may be involuntarily placed, then ICWA applies to the proceeding. If the
parent or Indian custodian does not agree to the removal or placement, or
agrees only under threat of the child=s removal,
then the proceeding is involuntary@ (id.).
In addition, Social Services Law ' 39(6)
provides that A[i]n any state court child custody
proceeding involving the foster care placement of, or termination of parental
rights to an Indian child not domiciled or residing within the reservation of
the Indian child=s tribe, the court, in the absence of
good cause to the contrary, shall transfer such proceeding to the jurisdiction
of the tribe, absent objection by either parent, upon the petition of either
parent or the Indian custodian or the Indian child=s tribe;
provided, however, that such transfer shall be subject to declination by the
tribal court of such tribe.@ The New York regulations, as amended on
March 15, 2017, mirror the definition of Achild
custody proceedings@ under the ICWA and the federal
regulations. Any action that Amay culminate@ in, inter
alia, a Afoster care placement@ or Atermination
of parental rights@ triggers the ICWA and the presumptive
tribal jurisdiction over the proceedings (18 NYCRR 431.18[a][4]). Here, the DSS
filed a petition alleging neglect pursuant to article 10 of the Family Court
Act. The stated purpose of an article 10 proceeding is Ato help
protect children from injury or mistreatment and to help safeguard their
physical, mental, and emotional well‑being. It is designed to provide a due
process of law for determining when the state, through its family court, may
intervene against the wishes of a parent on behalf of a child so that his needs
are properly met@ (Family Ct. Act ' 1011).
Under the circumstances presented, it discerned no reason to disturb the Family
Court=s transfer
order. The fact that the definition of Achild
custody proceedings@ under 18 NYCRR 431.18(4) was not
amended to include the language Amay culminate in@ until March
2017, approximately one month after the filing of the instant petition, was of
no consequence. The ICWA and the federal regulations explicitly state that Awhere
applicable State or other Federal law provides a higher standard of protection
to the rights of the parent or Indian custodian than the protection accorded
under the Act, ICWA requires the State or Federal court to apply the higher
State or Federal standard@ (25 CFR 23.106; see 25 USC ' 1921). At
the time the petition was filed, the term Achild‑custody
proceeding@ was defined under the federal
regulations as Aany action, other than an emergency
proceeding, that may culminate in@ foster care
placement, termination of parental rights, preadoptive placement, and adoptive
placement (25 CFR 23.2[11]).
Appellate Division, Third Department
Child’s Student loan debt was held to be
husbands Responsibility where incurred in pursuit of his interests.
In
Ragucci v Ragucci, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1389161, 2019 N.Y. Slip Op. 02407
(3d Dept., 2019), following a nonjury trial Supreme Court granted the wife a
judgment of divorce and concluded that the husband was solely responsible for a
student loan C then roughly $ 224,000 C related to
the college education of the middle child. The Appellate Division affirmed. It
noted that it is well settled that trial courts are granted substantial
discretion in determining what distribution of marital property B including
debt B will be
equitable under all the circumstances,@ taking into
account the relevant statutory factors. In this regard, Aoutstanding
financial obligations incurred during the marriage which are not solely the
responsibility of the spouse who incurred them may be offset against the total
marital assets to be divided@. Nonetheless, a financial obligation
should remain a spouse=s separate liability where it is
incurred by that spouse alone and in pursuit of his or her own interests. The
Court found that the the student loan
debt for the child=s education was properly treated as the
husband=s separate liability where, among other
things, only the husband=s personal
information and signature appeared on the loan application, the husband was in
charge of the family=s finances during the marriage, the wife was unaware of the loan and he made monthly payments on the loan starting
in 2009, and later stopped making payments in April 2012 when he mistakenly
believed that the child had thereafter taken responsibility for the loan
repayments.
Court properly declined to exercise
jurisdiction given that, at the time the mother=s
proceeding was commenced, there was then‑pending custody litigation in Tribal
Court.
In Matter of Kawisiiostha N., v. Arthur
O., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1389099, 2019 N.Y. Slip Op. 02393 (3d
Dept.,2019) the parents and the children, each of whom was a member of a Native
American tribe, previously lived in the territory of the Pawnee Nation of
Oklahoma. On December 11, 2015, after the mother moved to New York with the
children, the father commenced custody proceedings in the District Court for
the Pawnee Nation of Oklahoma Civil Division (Tribal Court), and the mother
failed to appear. In February 2017, the Tribal Court granted the father full
custody of the children. Thereafter, upon the father=s petition,
Family Court issued a temporary order enforcing the Tribal Court=s order to
return the children, then located in New York, to the father in the Pawnee
Nation. In July 2017, the mother commenced a proceeding in Family Court,
seeking sole legal and primary physical custody of the children. The mother
noted in her petition that she had filed a motion to dismiss in the Tribal
Court, asserting that that court lacked subject matter jurisdiction. The motion
was pending before the Tribal Court at the time of commencement of this
proceeding. Family Court, sua sponte, dismissed the mother=s
application, on the ground that the Tribal Court had continuing, exclusive
jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement
Act (see Domestic Relations Law ' 75Ban et seq.
[UCCJEA]). The Appellate Division, held that Family Court properly declined to
exercise jurisdiction given that, at the time the mother=s proceeding
was commenced, there was then‑pending custody litigation in Tribal Court. The
UCCJEA requires that tribal court custody determinations made in Asubstantial
conformity@ with its provisions be afforded full
faith and credit (Domestic Relations Law ' 75Bc [3]). A New York court may not exercise
jurisdiction if, at the time the New York proceeding is commenced, a custody
proceeding concerning the same child has been commenced in another state having
jurisdiction under the UCCJEA, unless a court in the other state terminates ...
that proceeding@ (Matter of Hiles v. Hiles, 165 A.D.3d
1394, 1395, 85 N.Y.S.3d 267 [2018]; see Domestic Relations Law ' 76Be [1] ).
Accordingly, Family Court properly declined to exercise jurisdiction.
No one factor is dispositive in best
interest custody analysis. Custody award contingent upon enrollment in certain
school had to be reversed and new hearing conducted on modification petition
In Matter of
Lionel PP v Sherry QQ, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 1389155, 2019 N.Y. Slip Op. 02398 (3d Dept., 2019) following a trial
and a Lincoln hearing, the court, among other things, granted the father=s
modification petition and awarded him physical custody of the child and
permitted relocation to New York City contingent upon his enrollment in Harlem=s Children
Zone, Promise Academy for the 2017B2018 school
year. The Appellate Division held that by imposing such condition, the court
erroneously elevated the child=s matriculation at Promise Academy from
one factor to be considered in the best interest’s analysis to the sole
dispositive factor. Inasmuch as no one factor is dispositive (see Matter of
Perestam v. Perestam, 141 A.D.3d 757, 759, 38 N.Y.S.3d 273 [2016]), the matter
had to be reversed and a new hearing to be conducted on the father=s
modification petition.
Supreme Court
Strict application of the maintenance
guidelines unjust and inappropriate because of Tax Cuts and Jobs Act so as to
warrant a deviation
In Wisseman v Wisseman, N.Y.S.3d ‑‑‑‑,
2019 WL 1497074, 2019 N.Y. Slip Op. 29092 2019 WL 1497074 (Supt Ct., 2019) an
action for a divorce, all issues were resolved with the exception of the sum of
maintenance. The parties agreed that the husband would be obligated to pay
maintenance to the wife for a period of two years but were unable to agree upon
the sum. The parties= attorneys represented that the basis
for the inability to agree was the change in the tax law effective this year
pursuant to which maintenance is no longer tax deductible to the payor spouse,
in this case, the husband, and no longer includable as taxable income to the
payee spouse, in this case, the wife. The husband=s argued
that he should pay less maintenance since he cannot deduct the maintenance
payment from his taxable income. The parties agreed that the husband=s federal
tax rate was 22%. He claimed that an award of maintenance calculated by strict
application of the maintenance statue (Domestic Relations Law ' 236B (6))
would be unjust and inappropriate and that his statutory calculation should be
reduced by 22%. The parties agreed that the wife=s federal
tax rate was 12%. She argued that strict application of the statutory formula
was mandated, and that reduction of her award by 22% would result in even less
of a net payment to her than would have resulted if she had to claim the
maintenance as taxable income. The court held that based upon the relevant
factors, strict application of the maintenance guidelines would be unjust and
inappropriate so as to warrant a deviation. It directed that the husband pay
maintenance to the wife of $ 451.04 per month. The statutory award was reduced
by 12%, the net result of which is application of the guidelines as intended by
the New York State Legislature prior to the federal change in the relevant tax
law, impacted only by a reduction concomitant with the wife=s tax
bracket and what she would have been obligated to include as taxable income.
Family Court
Family Court holds Interstate Compact on the
Placement of Children does not apply to release by the Court of non-remanded
children to out‑of‑state nonrespondent parents who live outside of New York
In Matter of Solai J., v. Kadesha J., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1499348, 2019 N.Y.
Slip Op. 29093 , (Fam Ct., 2019) Family Court held that the Interstate Compact on the Placement of
Children (AICPC@) does not
apply to release by the Court of non-remanded children to out‑of‑state
nonrespondent parents who live outside of New York. Article II of the ICPC defines APlacement@ in
pertinent part as Athe arrangement for the care of a child
in a family free or boarding home or in a child‑caring agency or institution
....@ By its
terms, the ICPC applies only to Aplacement@ of children
in foster care, not a release of a child to his or her nonrespondent parent.
The Court noted that while there are a number of appellate court decisions
which uphold the application of the ICPC to a nonrespondent out‑of‑state parent
or relative (see, e.g., Matter of Shaida W., 85 N.Y.2d 453, 459‑60, 626
N.Y.S.2d 35, 649 N.E.2d 1179 [1995]; Matter of Tumari W. v. Lynell W., 65
A.D.3d 1357, 1359, 885 N.Y.S.2d 753 [2d Dept. 2009]; Matter of Alexus M. v.
Jennelle F., 91 A.D.3d 648, 650, 937 N.Y.S.2d 257 [2d Dept. 2012]; Matter of
Faison v. Capozello, 50 AD3d 797, 856 N.Y.S.2d 179 [2d Dept. 2008]; In re Kenu
Blue R., 292 A.D.2d 614, 740 N.Y.S.2d 98 [2d Dept. 2002]; Matter of Melinda D.,
31 A.D.3d 24, 815 N.Y.S.2d 644 [2d Dept. 2006] ), in each of those cases the
child or children had been remanded to the care and custody of the child
welfare agency before the out‑of‑state nonrespondent parent sought to have the
child released to his or her care. The child welfare agency had assumed the
legal responsibility for the child or children and it was that welfare entity
which was operating as the Asending@ agent. The
ICPC was held to apply because the child was in the care and custody of the
state (see Shaida W., 85 N.Y.2d at 460, 626 N.Y.S.2d 35, 649 N.E.2d 1179: AThe official
custodian of these children was petitioner, Department of Social Services of
New York City. It authorized the children to be Asent,@ as that
statutory word of art is used, to California with their grandmother. New York=s Department
of Social Services alone is the Asending agency@ within the
meaning of the statute. When the children relocated to California, they were in
the Acustody@ of the New
York City Department of Social Services pursuant to a Family Court order ....
The Department of Social Services was the agency that was still responsible for
their care, and it authorized the transfer in cooperation with San Diego
officials. The Department of Social Services, therefore, Asent@ the
children to California with their grandmother, as New York foster children, to
be supervised by the San Diego Department of Social Services child welfare
authorities.... Once the State takes custody of the subject child, the State is
responsible for the child=s care and safety, and it is at that
point that the ICPC is triggered. Thereafter, if ACS, as the agent for New York
(the sending state), seeks to transfer the child to an individual in another
state (the receiving state) the ICPC and its requirements are implicated. If a
child is not remanded to ACS ‑‑ Aplaced@ by ACS in
foster care ‑‑ but, rather, is released by the court to the out‑of‑state
nonrespondent parent, the ICPC does not apply. The Court was not aware of any
case in which the ICPC was held to apply to the release of a child, who had not
been remanded to state custody, to an out‑of‑state, nonrespondent parent.
April 1,
2019
Appellate Division, First Department
Appellate Division rejects argument that
distributive awards as low as 5% are only for spouses who commit heinous
domestic violence
In Larowitz v Lebetkin, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 1338331, 2019 N.Y. Slip Op. 02273 (1st Dept., 2019) the
judgment of divorce, inter alia, valued the marital residence at $ 1.6 million,
awarded defendant husband 5% of the appreciation in value of the marital
residence, and deemed plaintiff wife=s Merrill
Lynch account separate property was affirmed. The Appellate Division rejected
Defendants argument that his contributions to the value of the property at 74
Grand Street should be deemed contributions to the appreciation on the marital
residence because funds realized from the property were used to pay special
assessments charged for capital improvements to the building in which the
marital residence was located and these improvements enhanced the value of the
residence. It held that cases such as Price v. Price, 69 N.Y.2d 8, 511 N.Y.S.2d
219, 503 N.E.2d 684 [1986] make it clear that a spouse should be recognized and
awarded for indirect contributions that were otherwise uncompensated. The
Appellate Division also rejected defendant=s argument
that distributive awards as low as 5% are only for spouses who commit heinous
domestic violence. The equitable distribution law requires
courts to distribute marital property equitably between the parties,
“considering the circumstances of the case and of the respective parties” (DRL
§ 236[B][5][c] ). In determining an equitable
disposition, courts are required to consider 13 defined factors and “any other
factor which the court shall expressly find to be just and proper” ([d][14]).
Moreover, 5% did not represent defendant's entire distributive award; he
received 30% of two other assets and 50% of a third asset.
A motion for summary judgment may be
utilized in Custody proceedings under Family Court Act article 6
In Matter of Elisa N. v. Yoav I., ‑‑‑
N.Y.S.3d ‑‑‑‑, 2019 WL 1178745, 2019 N.Y. Slip Op. 01843 (1st Dept.,
2019) the Appellate Division affirmed an order insofar as it granted petitioner
mother=s summary
judgment motion and petition to modify a prior custody order, and awarded her
sole custody of the children. It held that a motion for
summary judgment may be utilized in proceedings under Family Court Act article
6 (see Matter of Suffolk County Dept. of Social Servs. v. James M., 83
N.Y.2d 178, [1994]). The motion should only be granted when there are no
material facts disputed sufficiently to warrant a trial. The court properly
determined that a full plenary hearing was not required because it possessed
ample information to render an informed decision on the children=s best
interests and because the father offered no proof that he was in compliance
with his treatment of his mental health issue. Both parties and the attorney
for the children were provided an opportunity to present their positions, and
the court made the factual basis for its determination clear on the record.
Child=s
testimony stricken from hearing pursuant to Family Ct Act '
1028 may be considered in connection with a fact‑finding hearing pursuant to
Family Ct Act ' 1046(a)(vi).
In Matter of Jaylyn Z., ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 1178734, 2019 N.Y. Slip Op. 01846 (1st Dept., 2019) the
Appellate Division held that a child=s testimony
stricken from a hearing pursuant to Family Ct Act ' 1028 may be
considered in connection with a fact‑finding hearing regarding abuse
allegations, pursuant to Family Ct Act '
1046(a)(vi). Family Ct Act ' 1046(a)(vi) sets forth, in relevant
part, that Aprevious statements made by the child
relating to any allegations of abuse or neglect shall be admissible in
evidence,@ when corroborated, and A[t]he
testimony of the child shall not be necessary to make a fact‑finding of abuse
or neglect.@ Here, then 14ByearBold Ashley
refused to continue with her testimony at the FCA 1028 hearing regarding her
allegations of sexual abuse after she already had been cross‑examined for three
days by respondent=s counsel. According to a letter from
Ashley=s therapist
submitted to the court, it would be detrimental for the child to return to
testify. It held that the Family Court that it could rely upon Ashley=s incomplete
testimony for the purposes of the subsequent fact‑finding hearing, subject to a
statutory requirement of corroboration. The use of Ashley=s incomplete
testimony was in accordance with the legislative intent of Family Ct Act ' 1046(a)(vi)
to address Athe reluctance or inability of victims
to testify@ (Matter of Nicole V., 71 N.Y.2d 112,
117 [1987]). Respondent=s arguments regarding the timing and
circumstances of Ashley=s incomplete testimony only went to its
weight, not admissibility.
Appellate Division, Second Department
Income properly imputed to father based upon
access to and receipt of financial support from his fiancé
In
Matter Picone v. Golio, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1141792 (Mem), 2019
N.Y. Slip Op. 01774 (2d Dept.,2019) the Appellate Division held that the
Support Magistrate providently exercised her discretion in imputing an
additional $ 47,600 to Golio=s earned income based upon his testimony
regarding his access to and receipt of financial support from his fiancé (see
Family Ct. Act ' 413[1][b][5][iv]).
Where petitioner=s
mother was married to respondent=s brother and respondent was
sister of petitioner=s stepfather. Parties were not
related by consanguinity, and, not related by affinity.
In Rizzo v. Pravato, 2019 WL 1141778 (2d
Dept.,2019) the petitioner commenced a proceeding 8 seeking, inter alia, an
order of protection against the respondent. The petitioner=s mother was
married to the respondent=s brother. The respondent was the sister
of the petitioner=s stepfather. The Family Court dismissed
the petition on the ground of lack of subject matter jurisdiction. The
Appellate Division observed that for purposes of Family Court Act article 8, Amembers of
the same family or household@ is defined as, inter alia, Apersons
related by consanguinity or affinity,@ or Apersons who
are not related by consanguinity or affinity and who are or have been in an
intimate relationship regardless of whether such persons have lived together at
any time@ (Family Ct Act ' 812[1][a],
[e] ). It was undisputed that the parties were not related by consanguinity,
and, it held that contrary to the petitioner=s
contention, the parties were not related by affinity. (see generally Matter of
Anita C. v. Johana S., 48 Misc.3d 619, 622, 13 N.Y.S.3d 795; cf. Matter of
Arnold v. Arnold, 119 A.D.3d 938, 939, 989 N.Y.S.2d 879). It concluded that
Family Court should not have determined, without a hearing, that the parties
were not and had never been in an intimate relationship. Although Family Court
Act ' 812(1)(e)
expressly excludes a Acasual acquaintance@ and Aordinary
fraternization between two individuals in business or social contexts@ from the
definition of Aintimate relationship,@ Athe
legislature left it to the courts to determine on a case‑by‑case basis what
qualifies as an intimate relationship within the meaning of Family Court Act ' 812(1)(e).
Strong public policy restitution or recoupment
of overpayments of child support warrants denial of motion for recoupment of 3
years overpayments
.
In Fortgang v Fortgang. 2019 WL 1272555
(2d Dept., 2019) the parties judgment of divorce which incorporated, but did
not merge, a stipulation of settlement dated February 14, 2011 provided that
the plaintiff would pay child support for the parties= two
children and that the plaintiff=s child support obligation would
decrease when the older child became emancipated and would terminate when the
younger child became emancipated. In December 2013, the older child became
emancipated under the terms of the stipulation, but plaintiff continued to pay
child support in the full amount through an execution on his income. In
November 2015, the younger child became emancipated under the terms of the
stipulation, but the plaintiff continued to pay child support for several
months thereafter through the execution on his income. On December 19, 2016,
the plaintiff cross‑moved, for the first time, to be reimbursed for child
support overpayments. The Supreme Court granted the plaintiff=s cross
motion. The Appellate Division reversed. It held that there is strong public
policy in this state against restitution or recoupment of the overpayment of
child support. Recoupment of child support payments is only appropriate under >limited
circumstances. The plaintiff failed to demonstrate the existence of any
circumstances which counter this state’s strong public policy against
reimbursement of child support overpayments. The plaintiff could have requested
a modification of his child support obligation in accordance with the
stipulation, but failed to do so.
Appellate Division, Fourth Department
Appellate Division Holds that pursuant to
Domestic Relations Law ' 248, cohabitation means Ahabitually
living with another person@
In Kelly v Kelly, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 1218215, 2019 N.Y. Slip Op. 01964 (4th Dept., 2019) pursuant
to the parties= separation and property settlement
agreement, which was incorporated but not merged into the judgment of divorce,
plaintiff=s maintenance obligation terminated if
defendant remarried or if there was Aa judicial
finding of cohabitation pursuant to Domestic Relations Law ' 248.@ Supreme
Court denied the application. The Appellate Division held that pursuant to
Domestic Relations Law ' 248, cohabitation means Ahabitually
living with another person@, but simply residing with another adult
is typically not considered to be Acohabitation,@ as that
term is generally understood (see generally Vega v. Papaleo, 119 A.D.3d 1139,
1139B1140, 990
N.Y.S.2d 664 [3d Dept. 2014]). While no single factor, such as residing at the
same address, functioning as a single economic unit, or involvement in a
romantic or sexual relationship, is determinative, the Court of Appeals found
that a common element= in the various dictionary definitions
of cohabitation is that they refer to people living together >in a
relationship or manner resembling or suggestive of marriage= @ ( Graev v.
Graev, 11 N.Y.3d 262, 272, 869 N.Y.S.2d 866, 898 N.E.2d 909 [2008] ). At the
hearing, defendant and the man with whom she lived testified that they had a
friendship and landlord‑tenant relationship. However, it was undisputed that
defendant reconnected with the man on a dating website and moved directly into
his home from her marital residence, after which they commenced a sexual
relationship. They had taken multiple vacations together, including for his
family reunion, and they sometimes shared a room while on those vacations.
Defendant wore a diamond ring on her left hand that the man purchased. They
also testified regarding their financial interdependence. For example,
defendant paid varying amounts of rent to the man depending on her financial
situation, and the man paid defendant for work she purportedly performed for
him. Notably, defendant did not declare as income the amounts she received from
the man for the work she performed, and the man did not declare those amounts as
an expense. The record did not show that the sexual relationship between
defendant and the man had ended. It concluded that plaintiff established by a
preponderance of the evidence that defendant was engaged in a relationship or
living with the man in a manner resembling or suggestive of marriage, and the
court erred in denying his application.
Summary Judgment Awarding Custody Affirmed
based upon Domestic Relations Law '
240(1Bc) presumption that neither
custody nor visitation with murdering parent is appropriate or in children=s
best interests.
In Matter of Pajek v Feketi, ‑‑‑
N.Y.S.3d ‑‑‑‑, 2019 WL 1303778, 2019 N.Y. Slip Op. 02208 (4th Dept.,
2019) the Appellate Division affirmed an order granting the motion of the
custodians of the children, for dismissal of the father=s petition
seeking visitation with the children. It rejected the father=s contention
that Family Court erred in granting the motion without conducting a hearing.
The court is not required to conduct an evidentiary hearing where it is clear
from the record that the court possesses sufficient information to render an
informed determination that is consistent with the children=s best
interests (Matter of Bogdan v. Bogdan, 291 A.D.2d 909, 909 [4th Dept. 2002]).
At the time the petition was filed, the father was incarcerated based upon his
conviction of murder in the second degree for killing the mother of the subject
children. Family Court Act ' 1085 and Domestic Relations Law ' 240(1Bc) provide
for the rare but unthinkable scenario whereby one parent intentionally murders
another yet seeks custody or visitation of the children left behind to deal
with their double tragedy. Under those statutes, there is a presumption that
neither custody nor visitation with the murdering parent is appropriate or in
the children=s best interests. Although the
presumption is rebuttable, the statutes prevent a court from making an award of
custody or visitation to the murdering parent except under certain narrow
circumstances, in addition to which Athe court
must still make an additional finding that visitation or custody is in the
child[ren=s] best interests. Inasmuch as the
father failed to set forth allegations rebutting the presumption that
visitation was not in the children=s best
interests, the court properly dismissed the petition.
Supreme Court
Awarding Custody to Father, Court Gives
significant weight to Wife=s lack of judgment concerning
social media usage.
In G.S., v. B.S., 2019 WL 1272760
(Sup. Ct., 2019) an action for divorce the husband testified their relationship
changed with the advent of social media. Wife started becoming Afriends@ with men
online, which caused the steady demise of the marriage. Once Wife Agot on
Facebook@ in 2015, she lost all interest in the
home, the children and their marriage. She was Aobsessed@ with
Facebook and constantly focused on her telephone and the internet to the
detriment of her family. She sought and received a lot of attention from men
online. Husband became very concerned when he discovered that the men she Amet@ were using
her claims of marital discord to open Ago fund me@ accounts.
Fueled by anger and jealously, Husband allowed his daughter to surreptitiously
secure her mother=s Facebook password. Husband then
searched Wife=s Facebook account and found pictures
and text messages from men Wife was conversing with online. Husband also found
sexually graphic pictures that were sent to Wife, and her responsive comments.
Husband also discovered that Wife told her online associations that she was
being mentally and physically abused by Husband. This prompted at least one
male Facebook friend to threaten to come to the house and assault Husband in a
misguided attempt to save Wife from her plight. Husband created a fake Facebook
account in the phony name of ATony Gallo@ and
messaged his Wife, incognito. He sent Wife romantic messages which she
responded to not realizing that they originated from Husband. Husband claims he
was concerned for Wife=s safety as she was meeting strangers
online. However, he admitted his actions were also fueled by jealously. After
surreptitiously interacting with Wife online, Husband again begged Wife to stop
using Facebook and to stop confiding in strangers. Wife initially indicated
that she would cease using Facebook, however, she quickly returned to her
account. Wife denies that she was ever romantically involved with any of the
male friends she met online. However, this testimony was not credible. The
Court found that the conflict and strife in this house throughout the marriage,
greatly intensified after Wife began her Aobsession@ with
Facebook. Husband credibly testified that Wife spent hours on her phone or
computer each day engaging with strangers she met on line. She posted messages
about the maltreatment and abuse she claimed she was suffering at the hands of
her husband, none of which was proven at trial. In response to her postings,
men previously unknown to Wife volunteered to come to the marital home and
inflict harm on Husband to Asave her.@ Wife sent
and responded to sexually graphic images and flirtatious comments from Facebook
friends. Her social media activities were discovered by the subject child V.S.
who shared them with Husband. While this Court recognizes that there are many
positive benefits to the use of social media, in this case, Wife=s obsessive
usage caused irreparable harm to her family. Wife=s
preoccupation with Facebook and her new Afriends@ consumed
the majority of her time and attention to the detriment of her children and her
marriage. Moreover, her activities online were unsafe, as she gave personal
information to random men who offered to Aprotect@ her,
including offers to come to the children=s home to
beat up their father. The subject children, and Husband, begged Wife to get off
Facebook and to stop sharing the family=s personal
information online. However, Wife=s obsession
continued without pause. Even after Husband=s life was
threatened by one of Wife=s Facebook Afriends@, Wife did
not stop her excessive and inappropriate social media use. To the contrary, she
continued to make online pleas for help which resulted in random men sending
her financial support and gifts in various forms, including new exercise
equipment. Wife has exhibited little
insight, if any, as to how her obsessive misuse of social media contributed to
the end of her marriage and the breakdown of her relationship with her
children. The Court gave significant weight to Wife=s lack of judgment concerning social media usage, and the lack of
responsibility she assumes for the effect it has had on her family in awarding
husband custody of the children.
March 16,
2019
2019 Child Support
Standards Chart and New Court Forms Released
The 2019 Child Support
Standards Chart was released on March 1, 2019. The 2019 poverty income guidelines
amount for a single person as reported by the United States Department of
Health and Human Services is $12,490 and the 2019 self-support reserve is
$16,862. The combined parental income amount remains
at $148,000. See https://www.childsupport.ny.gov/dcse/child_support_standards.html (last
accessed March 15, 2019); See also Child Support Standards Chart prepared by New
York State Office Of Temporary And Disability Assistance, Division Of Child Support Services, LDSS 4515
(3/19), Released: 03/01/2019 at https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf (last
accessed March 15, 2019)
Appellate Division, First Department
Appellate
Division affirms in-kind distribution without formal valuations. No basis to
reduce wife’s equitable distribution award merely because the parties chose to
hire domestic help.
In Flom v Flom, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019
WL 1064152, 2019 N.Y. Slip Op. 01643 (1st Dept., 2019) Supreme
Court, among other things, distributed 40% of certain marital assets to
defendant wife and 60% to plaintiff husband minus any withdrawals made by
defendant since April 2014, directed 40%
in‑kind distribution of Flomsky LLC to defendant, declined to distribute a collateral
account related to certain investments and apportioned 40% of the assets and
liabilities related to those investments to defendant and 60% to
plaintiff, and awarded defendant $
26,000 in monthly taxable maintenance for six years,
The Appellate Division held that the
court improvidently exercised its discretion in distributing the marital assets
60% to plaintiff and 40% to defendant. Although there is no requirement that
each marital asset be divided evenly, Awhere both
spouses equally contribute to the marriage which is of long duration, a
division should be made which is as equal as possible@ (Smith v.
Smith, 162 A.D.2d 346, [1st Dept. 1990]). The referee divided the marital
property unequally solely because defendant was not employed outside the home
and the parties hired domestic help, and thus, in the referee=s view, she
did not contribute equally to the marriage. It found that the referee=s
determination was not supported by the record. The parties were married for 18
years and had two children. Testimony adduced at trial established that
defendant was actively involved with the children, coaching their athletic
teams, attending parent‑teacher conferences, and, as plaintiff testified, being
Atheir mom.@ The parties
enjoyed a lavish lifestyle, and the evidence indicated that defendant played a
major role in managing the home, including entertaining clients and paying
household expenses from the parties= joint
account. The referee=s finding that there was no evidence
that defendant Aever cooked a meal, dusted a table or
mopped a floor@ did not support the court=s
determination that she was therefore entitled to only 40% of the parties= marital
assets. There was no basis to reduce equitable distribution merely because the
parties chose to hire domestic help. It held that the marital property subject
to distribution should be divided equally.
The Appellate Division held that the
court providently exercised its discretion in apportioning liability to
defendant for failed investments in Florida made during the marriage that
plaintiff personally guaranteed with a collateral account. Plaintiff=s conduct in
guaranteeing the loans did not absolve defendant of joint liability. Since the
investments were made during the marriage for the benefit of the parties, the
parties should share in the losses. It held that pursuant to the 50/50 division
in equitable distribution, defendant should be apportioned 50% of the liability
instead of 40%.
The Appellate Division held that the
court providently exercised its discretion in ordering an in‑kind distribution
of plaintiff=s interest in Flomsky LLC (Flomsky).
Plaintiff=s contention that his interest in
Flomsky could not be distributed because defendant failed to value the asset
was unavailing in light of his proposal prior to trial to distribute Flomsky in
lieu of maintenance. He also failed to explain how Flomsky differed from his
other private investments, which were readily distributed without formal
valuations. It held that pursuant to the 50/50 division in equitable
distribution, defendant=s in‑kind distribution should be 50%.
Appellate Division, Second Department
ERISA=s
anti‑alienation provisions do not prevent a valid waiver of beneficiary
interests. However, the purported waiver of benefits under a pension plan must
be A >explicit,
voluntary and made in good faith. A QDRO only renders enforceable an already‑existing
interest.
In Schatz v Feliciano- Schatz, ‑‑‑
N.Y.S.3d ‑‑‑‑, 2019 WL 1051280, 2019 N.Y. Slip Op. 01631 (2d Dept.,2019)
pursuant to the amendment to the parties settlement agreement, the decedent
validly waived her entitlement to the decedents retirement benefits. The
amendment stated that the decedent and the defendant waived any and all claims
that Ahe or she
may have or may hereafter acquire or possess to share in any pension, profit‑sharing,
IRA, 401(k) plan or any other retirement or deferred compensation plan
established for the other party. After the decedents death plaintiffs Susan,
the surviving wife, and the and administrator of husband=s estate
brought an action against the first wife, inter alia, to recover damages for
breach of contract and unjust enrichment, alleging, inter alia, that the
plaintiffs were entitled to the decedent=s retirement
benefits, as the defendant had waived her rights to the subject benefits
pursuant to the amendment. The plaintiffs moved, inter alia, in effect, for
summary judgment on the complaint, and the defendant cross‑moved for summary
judgment dismissing the complaint. Supreme Court denied the plaintiffs= motion and
granted the defendant=s motion. The Appellate Division
reversed.
The Appellate Division held that
although ERISA prohibits assignment or alienation of benefits while they are
held by the plan administrator, ... once they are paid to the beneficiary, the
funds are no longer entitled to that protection. Just as ERISA=s anti‑alienation
provisions do not preempt a valid QDRO from effecting a beneficiary designation,
those provisions do not prevent a valid waiver of beneficiary interests.
However, the purported waiver of benefits under a pension plan must be A >explicit,
voluntary and made in good faith. It agreed with the plaintiffs= contention
that, the waiver language in the amendment was sufficiently explicit to
effectuate a valid waiver of benefits under the subject plan. The language of
the waiver requiring that payments received in contravention of the waiver be
turned over to a designated beneficiary or the estate of the decedent did not
violate the anti‑alienation provisions of ERISA (see 29 USC ' 1056[d][1];
Kennedy v. Plan Administrator for DuPont Sav. and Investment Plan, 555 U.S.
285, 292, 129 S.Ct. 865, 172 L.Ed.2d 662).
The Appellate Division held that
plaintiffs failed to demonstrate, prima facie, that Susan was entitled to a
nunc pro tunc QDRO, as she failed to demonstrate she had an existing interest
in the subject pension benefits prior to the decedent=s death.
While a QDRO may be obtained after the death of the plan participant (see YaleBNew Haven
Hosp. v. Nicholls, 788 F.3d 79, 85 [2d Cir.] ), a QDRO only renders enforceable
an already‑existing interest (Trustees of Directors Guild of AmericaBProducer
Pension Benefits Plans v. Tise, 234 F.3d 415, 421 [9th Cir.]; see YaleBNew Haven
Hosp. v. Nicholls, 788 F.3d at 86 n. 4 [stating that a nunc pro tunc QDRO
serves Ato effectuate a previously awarded
property right@]).
Family Court lacks authority
to issue a sua sponte order vacating a consent order
In Matter of Schiavone, v. Mannese, ---
N.Y.S.3d ----, 2019 WL 944052 (Mem), 2019 N.Y. Slip Op. 01419 (2nd
Dept., 2019) the mother filed a petition alleging that the father was in
violation of a support order. Upon the father=s admission
to a willful violation of the support order and upon the father=s
representation that he was employed, an order of disposition was entered upon
the parties= consent, finding the father to be in
willful violation of the support order and committing him to a term of
incarceration of five months, but suspending his commitment on the condition
that he complied with the support order. Shortly after the consent order was
entered, the Family Court received a telephone call, ostensibly from the father=s purported
employer, informing the court that the father was not employed. The court, over
the father=s objection, sua sponte issued an order
vacating the consent order. The court then proceeded to a willfulness hearing,
at the conclusion of which it issued a second order of disposition, finding the
father to be in willful violation of the support order and directing that he be
committed to the County Jail for a period of six months unless he paid the
purge amount of $ 19,839.
The Appellate Division held that the
Family Court lacked authority to issue the sua sponte order vacating the
consent order (see CPLR 5019[a]). Moreover, the court issued the sua sponte
order on the basis of unsworn statements made during a telephone call between
the court and the father=s purported employer (see Matter of
Commissioner of Chenango County Dept. of Social Servs. v. Bondanza, 288 A.D.2d
773, 773B774, 733 N.Y.S.2d 299). Accordingly, the
sua sponte order had to be reversed, and the commitment order, which was based
in part on the sua sponte order, had to be reversed as well.
Order which directs compliance with
prescribed medication as a pre‑condition for future parental access or re‑application
for parental access is improper
In Matter of Parris v. Wright, ‑‑‑
N.Y.S.3d ‑‑‑‑, 2019 WL 1051453, 2019 N.Y. Slip Op. 01602 (2d Dept., 2019) the
Appellate Division held that an order which directs counseling and/or
compliance with prescribed medication as a pre‑condition for a father=s future
parental access or re‑application for parental access, is improper, as a court may not order
counseling as a condition of future parental access or re‑application for
parental access.
Appellate Division, Third Department
Attorney=s
failure to consult with and advise child to extent of and in manner consistent
with child=s capabilities constituted
ineffective assistance of counsel.
In Matter of Schenectady County
Department of Social Services, v. Joshua BB., 168 A.D.3d 1244, 92 N.Y.S.3d 430,
2019 N.Y. Slip Op. 00335 (3d Dept., 2019) petitioner commenced a proceeding on
behalf of Denise AA., the grandmother of the subject child (born 2012), seeking
an order of filiation against respondent, the purported father. The child=s mother was
not married at the time the child was born and, a year later, married her
current husband. At the time that the petition was filed, the child was living
with the grandmother, who was receiving public assistance benefits. Family
Court ordered a genetic marker test of the child, the mother and respondent to
confirm respondent=s paternity pursuant to Family Ct Act ' 532.
The Appellate Division found that the
mother told Family Court that the child believed that the mother=s husband
was the father. The attorney for the child (AFC) informed the court that,
through discussions with the grandmother, the AFC learned that the child might
also hold a belief that someone else was his father. The record did not give
any indication that the AFC discussed with the child his belief as to who his
father was. Beyond a few short and scattered statements, there was no
substantive evidence or discussion of who had a parent-child relationship with
the child and whether, due to equitable estoppel, a genetic marker test would
not be in the child=s best interests. Accordingly, the
Appellate Division held that Family Court did not possess adequate information
to determine the child=s best interests and, as such, it erred
in ordering genetic marker testing without first conducting a hearing
The Appellate Division held that the
child did not receive the effective assistance of counsel. The record was
bereft of evidence indicating that the AFC consulted with the child, who was
from 4 to 6 years old throughout the time of this litigation. It held that a
patient, careful and nuanced inquiry is not only possible, but necessary.
Counsel=s failure to consult with and advise the
child to the extent of and in a manner consistent with the child=s
capabilities constituted a failure to meet his or her essential
responsibilities as the AFC. Inasmuch as
consultation with the child and subsequent communication of the child=s position
to Family Court are of the utmost importance it was clear that the child did
not receive meaningful representation.
March 1, 2019
New Child Support Standards Chart Released March 1, 2019
The 2019 Child Support
Standards Chart prepared by New
York State Office of Temporary and Disability Assistance, Division of Child
Support Services, was released on March 1, 2019. The 2019
poverty income guidelines amount for a single person as reported by the United
States Department of Health and Human Services is $12,490 and the 2019
self-support reserve is $16,862. The combined parental income amount remains
at $148,000. See https://www.childsupport.ny.gov/dcse/child_support_standards.html (last accessed March 1, 2019); See also Child Support
Standards Chart prepared by New
York State Office of Temporary And Disability Assistance, Division of Child Support Services, LDSS 4515
(3/19), Released: 03/01/2019 at
https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf (last accessed March 1, 2019).
Appellate Division, First Department
Appellate Division reaffirms rule that
Domestic Relations Law ' 237(b) applies to custody
disputes between unmarried parents
In Matter of Balber v Zealand, ‑‑‑
N.Y.S.3d ‑‑‑‑, 2019 WL 611368, 2019 N.Y. Slip Op. 01144 (1st Dept.,
2019) the Appellate Division affirmed an order which awarded respondent mother
$ 35,000 in interim counsel fees; and an order that awarded her additional
interim counsel fees of $ 85,000 pursuant to Domestic Relations Law ' 237(b). It
held that the statute=s plain language disproved appellant
father=s arguments
about the statute=s inapplicability to custody disputes
between unmarried parents, as it contemplates a fee award to a Aspouse@ or Aparent@ in custody
proceedings either arising under Domestic Relations Law ' 240 or
otherwise. Brentrup v. Culkin, 167 Misc.2d 211, 639 N.Y.S.2d 247 (Sup. Ct.,
N.Y. County 1996), which held that DRL ' 240 does
not apply to children of unmarried parents, only highlights the wider breadth
of ' 237, which
covers not only ' 240 proceedings, but other custody
proceedings as well. Pierot v. Pierot, 49 A.D.2d 838, 373 N.Y.S.2d 592 (1st
Dept. 1975), cited by Brentrup, did not concern custody. Unlike here, it
concerned parties who were once married. Moreover, as it predated the Equitable
Distribution Law, it has been superceded. It noted that it and other courts
have awarded counsel fees to an unmarried parent in a custody dispute on
Domestic Relations Law ' 237(b) grounds. Family Court Act
article 4, as the father contended is limited to support proceedings. However,
the mother did not base her pendente lite application on Family Court Act ' 438.
The Appellate Division held that the $
120,000 total award, far less than the $ 225,000 total fees requested, was well
within the court=s discretion. The father conceded he was
the more affluent party, and the court providently exercised its discretion so
as Ato further
the objectives of litigational parity@ (O=Shea v. O=Shea, 93
N.Y.2d 187, 193, 689 N.Y.S.2d 8, 711 N.E.2d 193 [1999]). It expressly took into
consideration the very issues raised by the father on appeal, in awarding her
only 53% of the fees she sought. The father faulted the mother for not saving
more money to pay her own fees, but even if she Ahad the
funds to pay her attorneys, that is not in itself a bar to an award of counsel
fees@ (AnnaBSophia L. v.
Paul H., 52 A.D.3d 313, 315, 860 N.Y.S.2d 510 [1st Dept. 2008]). It held that
an evidentiary hearing was not required before making these interim awards
(Brookelyn M., 161 A.D.3d at 663, 77 N.Y.S.3d 390).
Appellate Division, Second Department
Appellate Division holds that although
parties previously stipulated New York would retain jurisdiction, a prior
agreement is merely one factor for court to consider in determining whether it
is a convenient forum
In Matter of Veen v Golovanoff, ‑‑‑
N.Y.S.3d ‑‑‑‑, 2019 WL 576085, 2019 N.Y. Slip Op. 01080 (2d Dept., 2019)
pursuant to, inter alia, an order of the Family Court dated November 9, 2010,
the mother had sole physical custody of the children. In August 2011, the
mother moved to California with the children, with the father=s
permission. In September 2013, the mother and the children moved to the State
of Washington. In July 2017, the father filed a petition in Family Court to
enforce his parental access rights pursuant to the November 2010 order. In
November 2017, the mother filed a petition in the Superior Court, State of
Washington to modify the father=s parental access rights. After
conferring with the Washington court, and hearing the arguments of the parties,
the Family Court, pursuant to Domestic Relations Law 5BA, inter
alia, relinquished jurisdiction over the father=s proceeding
to the Washington court, and, in effect, denied the father=s petition
and dismissed the proceeding. The Appellate Division affirmed. It noted that
pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, a court
in this state which has made an initial custody determination has exclusive
continuing jurisdiction over that determination until it finds, as is relevant here,
that it should relinquish jurisdiction because the child does not have a >significant
connection= with New York, and >substantial
evidence is no longer available in this state concerning the child=s care,
protection, training, and personal relationships. (Domestic Relations Law ' 76Ba [1][a]).
Domestic Relations Law ' 76Bf (1)
provides that a New York Court that has jurisdiction to make a child custody
determination may decline to exercise its jurisdiction if it determines that it
is an inconvenient forum under the circumstances and that a court of another
state is a more appropriate forum. Domestic Relations Law ' 76Bf(2) sets
out factors by which the court shall determine whether it is an inconvenient
forum, including, among others, as is relevant here, the length of time that
the subject children resided outside of New York, the distance that the parties
must travel, the relative financial circumstances of the parents, the nature
and location of the evidence, the ability of the courts to decide the issue
expeditiously, and the familiarity of the courts with the facts and issues of
the case. AParticularly relevant@ to the
analysis is the nature and location of evidence (Greenfield v. Grenfield, 115
A.D.3d 645, 645, 981 N.Y.S.2d 150). It agreed with the Family Court=s
determination declining to exercise jurisdiction on the ground that the
Washington court was the more appropriate forum to address the father=s petition.
Although the parties previously stipulated that the court in New York would
retain jurisdiction, a prior agreement is merely one factor for the court to
consider in determining whether it is a convenient forum (see Domestic
Relations Law ' 76Bf [2][e]).
However, the children had not had a significant connection to New York since
2011, and, since 2013, the substantial, relevant evidence pertaining to the
children=s care, protection, training, and
personal relationships was in Washington, not New York. The Washington court
thus had greater access to evidence and witnesses pertaining to the children=s best
interests, and the mother, the monied party, was willing to pay for the father
to travel to Washington for a parental evaluation (see Domestic Relations Law ' 76Bf [2][d]).
Clients subsequent decision to waive
attorney=s fees and to discharge law
firm did not preclude law firm from collecting fees that it incurred before it
was discharged, by contempt proceeding, so long as it was discharged without
cause
In Rhodes v Rhodes, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 575631, 2019 N.Y. Slip Op. 01113 (2d Dept., 2019) in an order dated August 25, 2015 the Supreme
Court, in effect, awarded Plaintiff $
20,000 in attorney=s fees and costs Afor the
prosecution of the appeal, with leave to apply for additional sums upon the
completion of the appeal.@ The defendant was to pay those attorney=s fees and
costs to the plaintiff=s then‑attorney, the nonparty, Karyn A.
Villar, PLLC within 20 days of the
order. On September 23, 2015, the Villar firm moved to hold the defendant in
civil contempt of the August 2015 order. The defendant cross‑moved for leave to
renew his opposition to the plaintiff=s prior
motion for interim appellate attorney=s fees and
costs. The defendant attached to his cross motion, inter alia, a stipulation of
settlement dated September 28, 2015, wherein the plaintiff and the defendant
agreed that the plaintiff would waive payment of attorney=s fees and
costs owed by the defendant pursuant to the August 2015 order. The plaintiff
retained new counsel, and thereafter cross‑moved to impose sanctions against
the Villar firm, arguing that the Villar firm=s contempt
motion was punitive and an abuse of process.
Supreme Court, inter alia, denied the Villar firm=s motion to
hold the defendant in civil contempt.
The Appellate Division reversed. It held
that Supreme Court should have granted the Villar firm=s motion to
hold the defendant in civil contempt. (ElBDehdan v. ElBDehdan, 114
A. D3d 4, 16, 978 N.Y.S.2d 239) The defendant=s proffered
defenses in response to the Villar firm=s showing
were without merit. The plaintiff=s subsequent
decision to waive attorney=s fees and to discharge the Villar firm
did not preclude the Villar firm from collecting fees that it incurred before
it was discharged, so long as it was discharged without cause (see Frankel v.
Frankel, 2 N.Y.3d 601, 606B607, 781 N.Y.S.2d 59, 814 N.E.2d 37).
The defendant did not contend or establish in his opposition papers that the
plaintiff discharged the Villar firm for cause. Furthermore, the Villar firm
was not required to exhaust other enforcement remedies before seeking to hold
the defendant in civil contempt (see L. 2016, ch. 365, '' 1, 2).
Under the circumstances, the Supreme Court should have granted the Villar firm=s motion to
hold the defendant in civil contempt.
Although the Supreme Court had awarded
the Villar firm a total of $ 20,000 for the prosecution of the plaintiff=s appeal,
the record demonstrated that the plaintiff discharged the Villar firm before
the appeal was completed. Under the circumstances, it remitted the matter to the Supreme Court to
determine the amount of the attorney=s fees and
costs that the Villar firm was owed by the defendant, taking into consideration
factors such as when the plaintiff directed the Villar firm to stop working on
the appeal, when the plaintiff discharged the Villar firm, Athe
complexity of the issues involved, and the reasonableness of counsel=s
performance and the fees under the circumstances@ (Matter of
Gregory v. Gregory, 109 A.D.3d at 618, 970 N.Y.S.2d 603.
In absence of clear indication that one
party was more culpable than the other, parties should share equally fees of a
parenting coordinator
In R.K. v. R.G., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019
WL 693239, 2019 N.Y. Slip Op. 01207 (2d Dept., 2019) pursuant to a judgment of
annulment the mother was awarded sole legal and physical custody of the child,
and the father was given parental access. Subsequently, the father moved, inter
alia, to modify the custody provisions of the judgment. Following a hearing,
the Supreme Court, inter alia, awarded the parents Aequal legal
rights and responsibilities to the [c]hild.@ Among other
things, the court directed that the father shall have parental access with the
child on the first three weekends of every month. The court directed the
parents to retain a parenting coordinator, and directed the mother to pay 58%
of the cost of the coordinator.
The Appellate Division disagreed with
the Supreme Court=s determination to direct that the
father have parental access with the child on the first three weekends of every
month. It held that a parenting schedule that deprives the custodial parent of
any significant quality time with the child is excessive. Here, the parenting
schedule awarding the father parental access with the school‑aged child, who
was born in 2007, three weekends per month was excessive, as, given the
respective work and school schedules of the mother and child, it effectively
deprived the mother of any significant quality time with the child. Under the
circumstances of this case, it found that it would be more appropriate for the
father to have parental access with the child every other weekend, and one
overnight per week.
The Appellate Division observed that in
custody and visitation matters, a court may appoint a parenting coordinator to
mediate between the parties and oversee the implementation of their court‑ordered
parenting plan. In the absence of any clear indication that one party was more
culpable than the other, the parties should share equally in paying the fees of
the parenting coordinator@ (Raviv v. Raviv, 64 A.D.3d 638, 640,
884 N.Y.S.2d 81). Since the record contained no indication that either party
was less culpable, it held that the parties should share equally the costs of
the parenting coordinator.
Order of disposition reversed where
Juvenile’s allocution conducted at the fact‑finding hearing was inadequate
In Matter of Richard S,168 A.D.3d 749
(2d Dept.,2019) the appellant admitted in his allocution that he took $5 from
another boy at school. The appellant stated that the boy had given the
appellant=s friend a $10 bill and that the friend
gave the appellant $5. The appellant=s foster
care case planner was present at the allocution but was not questioned. Family
Court found that the appellant committed an act which, if committed by an
adult, would have constituted the crime of grand larceny in the fourth degree.
In an order of disposition, the court adjudicated the appellant a juvenile
delinquent and placed him in the custody of the Commissioner of Social
Services.
The Appellate Division reversed finding
that the allocution conducted at the fact‑finding hearing was inadequate.
Although the issue was not preserved for review the Appellate Division found
that this is one of the rare cases where the appellant=s recitation
of the facts underlying the crime pleaded to clearly casts significant doubt
upon the appellant=s guilt, which falls into the narrow
exception to the preservation requirement (People v. Lopez, 71 N.Y.2d 662,
666). In addition, the appellant was not required to preserve his contention
that the Family Court erred in failing to obtain an allocution from the foster
care case planner, since the statutory requirement of such an allocution may
not be waived (see Matter of Alexander B., 126 A.D.3d 533, 534). The Court held
that appellant=s allocution failed to provide the factual
basis to establish that he committed an act which, if committed by an adult,
would have constituted the crime of grand larceny in the fourth degree. The
appellant=s allocution indicated both that he took
$5 from the boy and also that the boy voluntarily gave the appellant=s friend
$10, of which the appellant received half. The Family Court did not elicit any
additional details concerning the incident in order to clarify how the
appellant came to be in possession of the $5 such that it could be concluded
that he took it from the boy=s person within the meaning of Penal Law
' 155.30(5).
Thus, the court did not >elicit a sufficient factual basis to
support [the appellant=s] admission=. In
addition, the appellant=s admission was defective since his
foster care case planner was present, but the Family Court failed to ascertain
through allocution of the foster care case planner, as a person legally
responsible for the appellant=s care, Athat (a)
[the appellant] committed the act or acts to which he [was] entering an
admission, (b) he [was] voluntarily waiving his right to a fact‑finding
hearing, and (c) he [was] aware of the possible specific dispositional orders@ (Family Ct
Act ' 321.3[1].
The order of disposition was reversed, the order of fact‑finding vacated, and
the matter remitted to the Family Court, for further proceedings on the
petition.
Appellate Division, Third Department
Conduct of father who vested daughter with
authority to determine whether she wanted to visit with mother and made no
efforts to Afacilitate compliance with
court‑ordered visitation@ held to be contemptuous
In Matter of Richard GG v M. Carolyn GG,
‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 758522, 2019 N.Y. Slip Op. 01268 (3d Dept., 2019)
the father admitted during his testimony that the daughter had not visited with
the mother since February 2017, however he asserted on appeal that he never
prevented the daughter from visiting, an assertion Family Court found to be
unpersuasive The father vested the daughter with the authority to determine
whether she wanted to visit with the mother and the father made no efforts to Afacilitate
compliance with the court‑ordered visitation@ Thus, the
issue of whether there was a willful violation of the custody order distilled
to a credibility determination. The Appellate Division held that based on the
foregoing, and according due deference to Family Court=s
credibility determinations, Family Court did not abuse its discretion in
finding that the father willfully violated the custody and visitation order.
February 16, 2019
Appellate Division, Second Department
Husband, who had unclean hands in connection
with transfer of separate property business to wife to shield it from the IRS,
was prohibited from arguing that proceeds of its sale were separate property
In Nerayoff v Rokhsar, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 362120, 2019 N.Y. Slip Op. 00607 (2d Dept., 2019) the plaintiff and the
defendant were married on November 21, 2004, and had two children. On November
27, 2012, the plaintiff commenced the action for a divorce. On July 19, 2013,
the defendant served the plaintiff=s attorneys
with a notice of appearance demanding, inter alia, maintenance and child
support. The Appellate Division observed that the evidence established that, in
2003, one year prior to the marriage, the plaintiff formed and was the sole
member of Freedom Home Care, LLC, a provider of home healthcare. In 2004, the
parties were married. In the summer of 2005, the plaintiff received a notice
from the Internal Revenue Service indicating that he was being audited, and
faced potential tax liabilities in excess of $ 6 million due to his
participation in a certain security transaction in the late 1990=s. In 2005,
the plaintiff transferred his entire membership interest in Freedom to the
defendant. The plaintiff testified that the purpose of this transfer was to
preserve assets for the family while litigation pertaining to his potential tax
liabilities was ongoing. The defendant testified that the plaintiff told her
that Freedom was being transferred into her name because he had a gambling
problem and placing the company in her name would protect it from his impulsive
gambling behavior. In 2008, Freedom, which was still in the defendant=s name, was
sold for approximately $ 11 million. The proceeds from the Freedom sale were
placed into a bank account in the defendant=s name. The
money was used to fund the family=s living
expenses and to fund various investments and business ventures, including,
inter alia, Maple Ventures, LLC (hereinafter Maple), a venture capital firm of
which the defendant was the sole member. In 2012, the plaintiff prevailed in
his tax dispute with the IRS, lifting the cloud of the potential $ 6 million
tax liability. Thereafter, the parties entered into an agreement transferring
the membership interest in Maple from the defendant to the plaintiff. As
relevant to the issues on appeal, one of Maple=s assets
included a note payable by an entity named OS33, Inc. (hereinafter OS33), to
Maple in 48 monthly installments of $ 3,000.59, commencing on January 15, 2012.
Additionally, Maple loaned $ 50,000 to the defendant=s uncle, and
the plaintiff testified that when the loan was repaid, he deposited the
proceeds into Maple=s bank account. In April 2012, the
plaintiff and a business partner applied for a provisional patent for
technology used in motor‑vehicle parking, and subsequently applied for related
patents. After the commencement of the action, the plaintiff assigned his
interest in the patent portfolio to CloudParc, an entity that was formed after
the commencement of the action. The plaintiff presented expert testimony
stating that, as of November 27, 2012, the date of commencement of this action,
the plaintiff=s interest in the patent portfolio was
valued at $ 21,039. The defendant presented no evidence of the patent portfolio=s value.
The Supreme Court, inter alia, found
that the plaintiff had unclean hands in connection with his transfer of Freedom
to the defendant for the purpose of shielding it from the IRS and, was
prohibited from arguing that all or a portion of the proceeds from the sale of
Freedom were separate property. The court directed that the parties= holdings
flowing from the sale of Freedom, in particular, Maple, and the funds in a
Citigold bank account, be equally divided. The court held that the defendant
was entitled to one‑half of all post‑commencement payments due from OS33 to
Maple under the installment loan and, in effect, denied the defendant=s
application for a credit relating to the money repaid from the Rokhsar loan.
The court held that A40% of the value of the patent portfolio
... is marital property,@ but awarded the plaintiff 100% of his
interest in the patent portfolio without awarding the defendant a credit for
the marital portion of that asset. The court denied the defendant=s
application for an award of an interest in Cloudparc, which was formed post‑commencement.
The parties possessed capital loss carryovers in excess of $ 16 million that
were generated by the plaintiff=s securities trading activities during
the marriage. The court awarded the plaintiff 85% of the capital loss
carryovers and awarded the remaining 15% to the defendant, based upon its
reasoning that A[t]here is a greater likelihood that
[the plaintiff=s] future capital gains will be greater
than [the defendant=s].@ The court
directed the parties to equally divide all interest, dividend loss carryovers,
and net operating losses. The court denied the plaintiff=s request
for a credit representing one‑half of the amount the defendant spent post‑commencement
on a new car in excess of the amount agreed upon by the parties in a so‑ordered
stipulation. For purposes of calculating maintenance and child support, the
court imputed $ 210,000 in annual income to the plaintiff and $ 70,000 in
annual income to the defendant. The court directed that maintenance and child
support payments were retroactive to April 1, 2014, the date the defendant
moved for a pendente lite award of maintenance and child support. The court
denied the defendant=s application for $ 180,000 in attorneys= fees, and
awarded the defendant the sum of only $ 50,000 in attorneys= fees.
The Appellate Division agreed with the
Supreme Court=s determination that the entire proceeds
of the sale of Freedom should be treated as a marital asset subject to
equitable distribution, but held that the court improvidently exercised its
discretion in equally dividing certain bank accounts representing the proceeds
of the sale of Freedom, and the assets of Maple. Under the circumstances of
this case, it found that 60% of those assets should be distributed to the
plaintiff, and 40% of those assets should be distributed to the defendant.
The Appellate Division held that the
plaintiff failed to overcome the presumption that his interest in the patent
portfolio, as of the date of commencement, was entirely marital property. Thus,
the Supreme Court should have determined that 100% of the plaintiff=s interest
in the patent portfolio, as of the date of commencement, was marital property.
It found that the defendant was entitled to a credit of $ 10,519.50, equivalent
to one‑half of the value of the plaintiff=s interest
in the patent portfolio as of the date of commencement. However, it agreed with
the court=s denial of the defendant=s request
for an award of a portion of the plaintiff=s interest
in Cloudparc, which was formed after the commencement of the action.
The Appellate Division held that Supreme
Court providently exercised its discretion in awarding each party one‑half of
the interest, dividend loss carryovers, and net operating losses accumulated
during the marriage. However, it disagreed with the court=s determination
to award the plaintiff 85% of the capital loss carryovers generated by the
plaintiff=s securities trading activities during
the marriage and to award the remaining 15% to the defendant. It held that
those losses should be equally divided (see Kim v. Schiller, 112 A.D.3d at 676,
978 N.Y.S.2d 229). In light of the holding that the court properly determined
that the proceeds of Freedom were a marital asset, it rejected the plaintiff=s contention
that the interest, dividend loss carryovers, net operating losses, and capital
loss carryovers were, either in whole or in part, his separate property.
The Appellate Division held that Supreme
Court should have awarded the plaintiff a credit for the defendant=s purchase
of a new car during the pendency of the action. A[E]xpenses
incurred after the commencement of a matrimonial action are the responsibility
of the party who incurred them@ (Prince v. Prince, 247 A.D.2d 457, 457,
668 N.Y.S.2d 670). After the action was commenced, the parties stipulated that
the defendant would deliver the parties= 2008 Range
Rover to the plaintiff and purchase a replacement vehicle Acomparable
to the current fair market value of the Range Rover.@ The
defendant undisputedly used marital funds to purchase a new car for $ 60,000.
The court accepted the plaintiff=s testimony that the 2008 Range Rover
had a value of $ 25,000 and rejected the defendant=s testimony
that its value was $ 35,000. Accordingly, the court should have awarded the
plaintiff a credit in the sum of $ 17,500, representing one‑half of the amount
of marital funds the defendant expended in excess of the amount permitted by
the stipulation.
The Appellate Division held that Supreme
Court should have made its award of maintenance and child support retroactive
to July 19, 2013, the date on which the defendant first served the plaintiff
with a demand for child support and maintenance (see Domestic Relations Law '
236[B][7][a]) and that the defendant should have been awarded an attorneys= fee in the
sum of $ 180,000.
Appellate Division, Fourth Department
Attorney for Child May participate in
financial trial where issues of child support were to be determined at that
trial.
In Haggerty v Haggerty, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 408799, 2019 N.Y. Slip Op. 00750 (4th Dept., 2019) the
Appellate Division rejected the plaintiff’s argument that Supreme Court erred
in permitting the attorney for the child (AFC) to participate in the financial
trial Aas issues of
child support were to be determined at that trial.
The Appellate Division rejected
Plaintiff=s argument that the court erred in
conditioning her ability to claim one of the parties= two
children as a dependency exemption for tax purposes on her ability to Aremain[ ]
current with her child support obligation for a full calendar year.@ Given
plaintiff=s prior failure to pay child support,
the imposition of such a condition was not an abuse of the court=s
discretion.
Supreme Court directed plaintiff to pay
$14,000 to defendant=s attorney. The Appellate Division held
that the award should be vacated. Under the circumstances of this case, where
neither party was a Aless monied spouse@ (Domestic
Relations Law ' 237[a]), and plaintiff had
significantly more student loan debt than defendant, it concluded in the
exercise of its discretion that the award should be vacated and that each party
should be responsible for his or her own attorneys= fees.
Emergency Jurisdiction Provision of Domestic
Relations Law ' 76Bc
(1) (UCCJEA) applies to emergencies involving parents. Statute was enacted with
the intent of, inter alia, protecting victims of domestic violence.
In Matter of Alger v Jacobs, ‑‑‑
N.Y.S.3d ‑‑‑‑, 2019 WL 408968, 2019 N.Y. Slip Op. 00766 (4th Dept.,
2019) the Appellate Division held that the court properly determined that it
had temporary emergency jurisdiction over the family offense proceeding and
custody proceeding filed by the mother. The Appellate Division pointed out that
under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Domestic
Relations Law art 5BA), section 76Bc New York
courts have Atemporary emergency jurisdiction if the
child is present in this state and ... it is necessary in an emergency to
protect the child, a sibling or parent of the child@ (' 76Bc [1]). The
child was present in New York State when the mother filed the petitions and
both proceedings fit within the UCCJEA=s broad
definition of child custody proceedings (see ' 75Ba [4]). The
Court found that there was an emergency within the meaning of section 76Bc (1).
Domestic Relations Law ' 76Bc (1)
applies to emergencies involving parents. The UCCJEA specifically notes that it
was enacted with the intent of, inter alia, protecting victims of domestic
violence (see ' 75[2]). Section 76Bc was
rephrased from A >it is
necessary in an emergency to protect the child= @ to A >it is
necessary in an emergency to protect the child, a sibling or parent of the
child = @ (Unified Ct
Sys Mem in Support, Bill Jacket, L 2001, ch 386 [emphasis added]). Thus, Athe
legislative history of the [UCCJEA] made clear that the expansion of the
statute to include danger to a parent is reflective of >an increased
awareness and understanding of domestic violence=. The
Appellate Division further held that the allegations in the petitions were
sufficient to establish the requisite emergency, i.e., they alleged acts of
physical violence perpetrated by the father against the mother, resulting in
her hospitalization in an intensive care unit for several days. It rejected the
father=s contention
that there was no emergency in effect at the exact moment the mother filed the
petitions. Although the father was incarcerated in Florida at the time the
petition in appeal No. 2 was filed and thus posed no immediate threat to the
mother=s physical
safety, the mother, who had been hospitalized for several days and suffered
significant injuries, including a subdural hematoma, had no knowledge regarding
when the father would be released. The mother therefore relocated to New York
to be with family, who could help her with the then 11BmonthBold child,
and to be safe in the event the father was released.
Improper to draw negative inference against
mother based on failure to testify at the hearing where she had no relevant
testimony to offer
In Matter of William FG v Lisa MB, ‑‑‑
N.Y.S.3d ‑‑‑‑, 2019 WL 409049, 2019 N.Y. Slip Op. 00774 (4th
Dept.,2019) the Appellate Division reversed an order that, inter alia, granted
petitioner father=s petition to modify a prior order of
custody and visitation. It held that Family
Court erred in drawing a negative inference against the mother based on her
failure to testify at the hearing. The mother had no relevant testimony to
offer inasmuch as she had no personal knowledge of the allegations in the
modification petition, i.e., the father=s completion
of sex offender treatment, his compliance with the terms of his probation, his
visits with the children, and his marriage to his new wife. It concluded that a
negative inference against the mother was unwarranted because she did not Awithhold []
evidence in [her] possession or control that would be likely to support [her]
version of the case@ (Noce v. Kaufman, 2 N.Y.2d 347, 353,
161 N.Y.S.2d 1, 141 N.E.2d 529 [1957]; see Matter of Nassau County Dept. of
Social Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138
[1995]).
Family Court Does Not Have Jurisdiction to allow
a tax deduction or exemption
In Matter of Bashir v Brunner, ‑‑‑
N.Y.S.3d ‑‑‑‑, 2019 WL 408769, 2019 N.Y. Slip Op. 00746 (4th Dept.,
2019) the Appellate Division held that the Family Court erred by, in effect,
distributing half of the parties= tax refund to the father by reducing
his child support obligation by that amount. The jurisdiction of Family Court
is generally limited to matters pertaining to child support and custody and tax
deductions or exemptions are not an element of support. The father=s
entitlement to claim the children as dependents for income tax purposes is not
an element of support set forth in Family Court Act article 4, and thus the
court lacked jurisdiction@ to distribute the parties= tax refund.
Order of protection incident to a criminal
proceeding can only be modified after modification by criminal court
In People v Smart, 2019 WL 491093 (4th
Dept., 2019) the Appellate Division observed that the issuance of an order of protection incident
to a criminal proceeding which barred all contact between defendant and his
child can not be modified by a subsequent visitation order of Family Court or
Supreme Court unless it is first modified or vacated by the criminal court (see
Matter of Utter v. Usher, 150 A.D.3d 863, 865, 55 N.Y.S.3d 71 [2d Dept. 2017];
Matter of Samantha WW. v. Gerald XX., 107 A.D.3d 1313, 1316, 969 N.Y.S.2d 180
[3d Dept. 2013]).
February 1, 2019
Appellate Division, Second Department
Appellate Division finds no error in Decision
assigning no value to MBA degree because it merely allowed husband to secure
employment at a substantially similar level of compensation to what he had
earned in the past.
In Lynch v Lynch, 2019 WL 138524 (2d
Dept.,2019) the parties were married on December 26, 1993. It was a second
marriage for both parties. There were no children of this marriage. The action
for a divorce was commenced on October 4, 2011. The Appellate Division found
that defendant=s MBA degree was marital property
subject to equitable distribution in this case, but affirmed the determination
of the Supreme Court not to award the plaintiff a portion of its value. The
value of the MBA degree is measured by the present value of the enhanced
earning capacity which it affords the defendant (see O=Brien v. O=Brien, 66
N.Y.2d at 588).Where a holder of an advanced degree has already embarked on his
or her career and has acquired a history of actual earnings, the theoretical
valuation method, which compares the average lifetime earnings of a college
graduate against the average lifetime earnings of a person holding the relevant
advanced degree, must be discarded in favor of a more pragmatic and
individualized analysis based on the titled spouse=s remaining
professional earning potential (see McSparron v. McSparron, 87 N.Y.2d 275,
286). Actual earnings, projected over time, are a recognized proxy for the
value of a person=s future earning capacity. In this case
the defendant started his studies for the MBA degree at a time when he was
unemployed and was seeking to improve his prospects for obtaining new
employment. In calculating the defendant=s Abase line@ earnings
for valuation purposes, the plaintiff=s expert,
noting that the defendant was a Vice President at J.P. Morgan when the parties
married, used statistical data showing the typical income expected of a Vice
President in the commercial banking industry in the same geographic area, which
was $197,540 per year. For the Atop line@ earnings,
the expert used the defendant=s actual earnings as a Senior Vice
President at Citigroup of $240,723 per year. The conclusion of the plaintiff=s expert
that the differential between these Abase line@ and Atop line@ earnings
reflected an actual enhancement to the defendant=s lifetime
earning capacity was fundamentally flawed. The defendant did not acquire his
MBA degree until May 2004. Between 1996 and 2000, the defendant=s actual
earnings exceeded the Abase line@ earnings
attributed to him. Thus, it agreed with the Supreme Court’s conclusion that the
statistical data used by the plaintiff=s expert to
establish the defendant=s Abase line@ earnings
significantly understated the defendant=s pre‑MBA
degree earnings capacity. Given that the defendant earned $233,562 while
employed by J.P. Morgan in 1996, it could not accept the premise of the
plaintiff=s expert that his income of $240,723 per
year while employed by Citigroup in 2011 reflected a substantial, measurable
enhancement of his lifetime earning capacity attributable to his acquisition of
an MBA degree in 2004. It saw no error in the court’s conclusion that obtaining
the MBA degree merely allowed the defendant to secure employment at a
substantially similar level of compensation to what he had earned in the past.
The Appellate Division agreed with the
Supreme Court’s determination that the defendant=s part‑time
teaching position at Dowling College did not reflect an enhancement to his
lifetime earning capacity by virtue of his acquisition of the MBA degree. In
attempting to ascribe a value to the defendant=s enhanced
earning capacity, the plaintiff=s expert compared the defendant=s income of
$16,185 per year as a part‑time professor to what the expert determined to be
the average earnings of men in the same geographic area with college degrees
who were working comparable hours, specifically, $10,768 per year. However, as
the court observed, the average earnings figure was artificially low, as the
defendant consistently generated greater income than the statistical model
would indicate. Under the circumstances, including that the teaching position
was part‑time and provided a supplement to his regular employment, it was
appropriate for the court not to value the income stream from teaching as
reflecting an enhancement of his earning capacity.
Mother entitled to award of counsel fees
where father withheld child support payments that he ultimately paid and did
not dispute were due and owing after commencement of enforcement proceeding
In Mensch v Mensch, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 138442, 2019 N.Y. Slip Op. 00126 (2d Dept., 2019) the parties= judgment of
divorce provided that the father was to pay child support to the mother. The
mother filed a petition alleging that the father failed to pay $1,635 in child
support from April 2017 through August 2017. Shortly after the petition was
filed, the father paid the mother the amount sought in the petition. The mother
moved for an award of attorney’s= fees for fees she incurred in
commencing this enforcement proceeding and the Support Magistrate denied her
motion. The Family Court denied her. The Appellate Division reversed and
remitted for a hearing to determine the amount of the mother’s reasonable
attorney’s fees. It pointed out that pursuant to Family Court Act ' 438(a), a
court, in its discretion, may award reasonable attorney’s= fees in an
enforcement proceeding. The denial of an award of attorney’s= fees to the
mother in this case was an improvident exercise of discretion. The father paid
the sum demanded for arrears in satisfying his child support obligations, but
only after the mother was forced to expend attorney’s= fees to
commence an enforcement proceeding. The fact that the father was engaged in a
dispute over whether he should be credited for payments for cell phone expenses
and college expenses paid before the entry of the parties= judgment of
divorce did not authorize him to engage in self‑help by withholding child
support payments that he ultimately did not dispute were due and owing.
Accordingly, the mother was entitled to an award of attorney’s= fees (see
Seale v. Seale, 154 A.D.3d 1190, 63 N.Y.S.3d 550).
Support Magistrate did not improvidently
exercise discretion in entertaining motion for counsel fees pursuant to FCA '438(b)
although mother did not serve a notice of motion
In Matter of Brady v White, ‑‑‑ N.Y.S.3d
‑‑‑‑, 2019 WL 138481, 2019 N.Y. Slip Op. 00115 the Appellate Division held that
the Support Magistrate did not improvidently exercise her discretion in
entertaining the mother=s motion for counsel fees pursuant to
FCA '438(b).
Although the mother did not serve a notice of motion on the father, the father
had notice of her request, submitted opposition to the motion, and was not
prejudiced by the lack of service of a notice of motion. Under these
circumstances, it agreed with the Support Magistrate=s
determination to entertain the mother=s motion
(see Rappel v. Wincoma Homeowners Assn., 125 A.D.3d 833, 834, 4 N.Y.S.3d 276;
Fugazy v. Fugazy, 44 A.D.3d 613, 614, 844 N.Y.S.2d 341).
Award of interim counsel fees reversed for
failure to comply with 22 NYCRR 202.16[k][3]
In Evelyn v Evelyn, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 288240 (Mem), 2019 N.Y. Slip Op. 00421 (2d Dept., 2019) the Appellate
Division reversed the award of interim counsel fees of $25,000 where the
defendant=s motion was not supported with the
necessary documentation, citing 22 NYCRR 202.16[k][3].
Supreme Court
Court Construes term “period
of time” for purposes of Domestic Relations Law §248 as meaning a continuous
uninterrupted span of time.
In S.P., v. M.P., Slip Copy, 2019 WL
348014 (Table), 2019 N.Y. Slip Op. 50118(U) (Sup Ct., 2019) the Judgment of
Divorce directed Plaintiff to pay spousal maintenance to the Defendant. It
provided: Payments will cease entirely upon Defendant=s 65th
birthday, upon her marriage or cohabitation with another adult with whom she is
romantically involved for a period of 60 days, or upon the death of the
Plaintiff or Defendant@ Supreme Court observed that the trial
court’s Decision did not redefine the legal term Acohabitation,@ as set
forth in DRL ' 248. Accordingly, Acohabitation@ had to be
construed in accordance with DRL ' 248, and
the case law interpreting that statute. However, the trial court did modify the
Plaintiff=s burden by adding the term Aromantically
involved@ and by mandating that the cohabitation
necessarily continue for a period of 60 days. The Court found Plaintiff failed
to meet his burden of proving cohabitation as set forth in the Judgment of
Divorce and as defined by Domestic Relations Law Section 248. See Szemansco v.
Szemansco, 11 AD3d 787 (3rd Dept. 2004); See also, Zolan v. Zolan, 2 AD3d 632
(2d Dept. 2003). It also found tha the Plaintiff did not establish by a fair
preponderance of the evidence that the Defendant Acohabitated@ with Mr. T.
Afor a period
of sixty days.@ According to the Merriam‑Webster
Dictionary, of which the Court took judicial notice, a Aperiod@ is the Acompletion
of a cycle, a series of events, or a single action@ or Athe interval
of time required for a cyclic motion or phenomenon to complete a cycle and
begin to repeat itself.@ The
Court determined that the term Aperiod@ refers to a
continuous uninterrupted span of time.
