Improper to Fail to Award Credit for Marital Debts Paid By One Spouse

Improper to Fail to Award Credit for Marital Debts Paid By One Spouse


In Grasso v Grasso, --- N.Y.S.2d ----, 2008 WL 193262 (N.Y.A.D. 2 Dept.)
Supreme Court, awarded the defendant nondurational maintenance, directed him to pay the defendant retroactive maintenance and child support arrears without a credit to him for mortgage and real estate tax payments he made with respect to the marital residence, pursuant to a pendente lite support order, directed him to pay, in full, the principal and interest on all marital debts bearing the defendant's name, awarded him the sum of $103,000 from the net proceeds of the sale of the marital residence as reimbursement of his contribution of separate property, directed that, after the parties each received reimbursement of their contributions of separate property from the net proceeds of the sale of the marital residence, the remainder of those net proceeds be divided equally between them, refused to award him a credit of $1,700 for expenditures he incurred for the benefit of the defendant's daughter from a prior marriage and, refused to to award him a credit of $2,500 for legal fees he expended on behalf of the defendant's son from a prior marriage. The Appellate Division found that that while the husband correctly contended that the court improperly admitted into evidence and relied upon a determination of the Social Security Administration as to the wife's disability, there was other sufficient admissible evidence which supported the finding that the wife was totally disabled. It found that the husband correctly contended that, in directing him to pay maintenance and child support arrears, the Supreme Court erred in failing to credit him for the mortgage and real estate tax payments on the marital residence which he made pursuant to a pendente lite support order. The amounts for which the husband should have been credited, were more than sufficient to offset the maintenance and child support arrears calculated by the Supreme Court. The husband also correctly contended that the Supreme Court improvidently exercised its discretion by, in effect, holding him responsible for 100% of the credit card obligations that constituted the parties' marital debt as well as all the marital debt that was solely in the wife's name. The parties' marital debt would have been more appropriately distributed by allocating it equally between them, and offsetting it against the net proceeds of the sale of the marital residence after deduction of their contributions of separate property. The Supreme Court erred in failing to award the husband a credit for the sum of $1,700 in expenses he incurred on behalf of the wife's daughter from a prior marriage and the sum of $2,500 in fees expended from marital funds on behalf of the wife's son from a prior marriage. Since, at this juncture, the marital residence may already have been sold and the proceeds distributed, the matter was remitted to the Supreme Court, for a hearing and determination of the amount of the parties' marital debt, including accrued interest as of the commencement of the action, and the entry thereafter of an amended judgment directing the wife to pay 50% of the entire marital debt, including 50% of that portion of the marital debt previously satisfied by distribution of the parties' properties in this action. The Court noted that at the trial Supreme Court erred in precluding the husband from offering evidence in support of his contention that a loan taken out against his 401(k) account was used to satisfy the marital debt obligation and directed Supreme Court tol permit the husband to offer proof as to this at the hearing, and to credit him with the wife's portion of any marital debt which he proves was paid from the proceeds of this loan.

Error to Decide Custody Without Forensic Report Where Conflicting Testimony

Error to Decide Custody Without Forensic Report Where Conflicting Testimony Regarding Parties Conduct, and Evidence Suggesting Children Exhibiting Behavioral Problems


In Ekstra v Ekstra, --- N.Y.S.2d ----, 2008 WL 669895 (N.Y.A.D. 2 Dept.) Supreme Court appointed psychologist Lobel as a neutral forensic expert to conduct evaluations and submit a written forensic report on the custody issue. The appointment order provided that "[t]he neutral forensic evaluator's final report shall be admitted as evidence-in-chief without the necessity for independent foundation testimony or evidence, pursuant to 22 NYCRR 202.16(g)." The order further provided that "[a]ny party who wishes to cross-examine the neutral [forensic] evaluator, as permitted by the Uniform Rules, shall bear the cost of the neutral [forensic] evaluator's services in preparing such testimony, travel and testifying unless the Court directs otherwise." After Dr. Lobel's report was submitted, the father's counsel expressed an intention to cross-examine him and asked the court whether the father would be required to bear the costs of his appearance. The court responded that the father would not be required to bear that expense, but made no other provision for payment. As a consequence of not receiving his fee, Lobel did not appear, and the court granted the father's application to preclude the forensic report. Relying largely on its evaluation of the credibility of the witnesses, the court awarded sole custody of the parties' two children to the father. The Appellate Division reversed. It held that the in light of the sharply conflicting testimony regarding the conduct of the parties, and evidence suggesting that the children were exhibiting behavioral problems, the court should not have rendered a custody determination without first receiving the report of the neutral forensic expert it had appointed. Moreover, inasmuch as the father had the right to cross-examine the expert (see 22 NYCRR 202.16[g][2] ), and the expert could not have been compelled to testify without appropriate compensation the court should have made provision for payment to Lobel as it indicated that it would in the order appointing him. It reversed and remitted the matter to the Supreme Court, to reopen the custody hearing, at which time Lobel's report should be received in evidence and, should either party wish to cross-examine him, the court should make provision for the payment of his fee and expenses in accordance with the order appointing him.

Father Can Not Avoid Obligation to Pay College Expenses by Ignoring Written Communications

Father Can Not Avoid Obligation to Pay College Expenses by Ignoring Written Communications


In Heinlein v Kuzemka, --- N.Y.S.2d ----, 2008 WL 660010 (N.Y.A.D. 3 Dept.) the parties agreed to contribute to the children's college expenses, provided that their then-financial circumstances permitted them to do so and that both parents "approve of the educational institution, course of study and living arrangements." The father sought relief from this obligation, asserting that since the mother did not consult him regarding his son's attendance at RPI, he did not approve of that school or any of the child's college-related expenses. The Appellate Division found that his protests were unavailing since, while aware of the child's aspirations to attend RPI, he failed to make any inquiries of the mother and consistently declined to accept registered mail sent by her. Moreover, once the father became aware that his son was attending RPI, he took no action to object to the choice of school or apply to be relieved of his obligations, thus signifying his acquiescence and implicit approval of the decision. The Appellate Division held that the father could not avoid his contractual obligations to pay his son's college expenses, which were imposed by separation agreement that was incorporated, but not merged, into divorce degree, by ignoring the mother's written communications and remaining silent in the face of his admitted knowledge that his son was attending college.

In Absence of Other Evidence Plaintiff's Valuation Should have been adopted by the court.

In Absence of Other Evidence Value of Vehicle in Net Worth Statement Should Have be Adopted by Court


In Winter v Winter, --- N.Y.S.2d ----, 2008 WL 1722288 (N.Y.A.D. 1 Dept.) Supreme Court set spousal maintenance, child support and defendant husband's share of add-on child expenses, allocated marital property and assets subject to certain credits including accounting for wasteful dissipation, denied defendant credit for pendente lite mortgage payments on the marital residence, and ordered defendant to pay 40% of plaintiff's legal fees. The Appellate Division modified, to reduce defendant's obligation with respect to plaintiff's legal fees to 30%, and to reduce the value assigned to the parties' Jeep Cherokee from $15,000 to $11,000. The Appellate Division found that in determining the value of the Jeep Cherokee, the court used the vehicle's 2004 purchase price of $15,000. In her September 30, 2005 net worth statement, plaintiff valued that asset at $11,000. In the absence of any other evidence as to the vehicle's worth, plaintiff's valuation should have been adopted by the court.

Husband Deemed Legal Parent Even though AID Consent Not in Writing

Husband Deemed Legal Parent of Child Born to Wife Conceived as Result of AID Where Consent Not Obtained in Writing


In Laura WW v Peter WW, --- N.Y.S.2d ----, 2008 WL 991130 (N.Y.A.D. 3 Dept.) the Third Department held that a husband can be deemed the legal parent of a child born to his wife, where the child was conceived as a result of artificial insemination by donor during the marriage, but where the husband's consent to the AID was not obtained in writing. Plaintiff wife became pregnant again, as a result of AID, with a third child. A few months into the wife's pregnancy, the parties separated pursuant to an agreement which provided, among other things, that the husband would not be financially responsible for the child. In her subsequent complaint for divorce, the wife alleged that the child was born to the marriage. The parties then entered a settlement agreement which reaffirmed the terms of the separation agreement and calculated the husband's support obligation based on two children. Thereafter, Supreme Court found that the provision in the separation agreement absolving the husband of his support obligation for the child was void as against public policy. Following a hearing on the issue of paternity, Supreme Court held that the husband was the child's legal father and modified the parties' stipulation by increasing the husband's child support obligation based upon three children, instead of two. The Appellate Division affirmed. It agreed with Supreme Court that the provision of the settlement agreement absolving the husband of any support obligation with respect to the child was unenforceable. The parties' agreement, which preceded any determination of legal paternity, to leave the child without the husband's support could not stand (Matter of Gravlin v. Ruppert, 98 N.Y.2d 1, 5 [2002]; see Harriman v. Harriman, 227 A.D.2d 839, 841 [1996] ). The Court rejected the husband's attempt to invoke noncompliance with Domestic Relations Law 73 as a bar to a finding that he was, legally, the child's father. Consistent with our state's strong presumption of legitimacy, as well as the compelling public policy of protecting children conceived via AID, the Court followed the lead of other jurisdictions that impose a rebuttable presumption of consent by the husband of a woman who conceives by AID, shifting the burden to the husband to rebut the presumption by clear and convincing evidence. It was not disputed that the husband was fully aware that his wife was utilizing AID to get pregnant. He proffered no evidence that he took any steps before the AID was performed to demonstrate that he was not willing to be the child's father. Under these circumstances, the court found that that the husband failed to rebut the presumption that he consented to bringing a third child into the marriage through AID. The evidence supported Supreme Court's conclusion that the husband consented to his wife's decision to create the child and that he was the child's legal father. Pursuing an alternative avenue, the Court reached the same result, finding that the facts also warranted application of the doctrine of equitable estoppel to preclude the husband from "seeking to disclaim paternity of the parties' child, whose best interest is paramount".