Important New Decisions

Child Support Payments May Be Waived Prospectively

In Stevens v Stevens, --- N.Y.S.2d ----, 2011 WL 833962 (N.Y.A.D. 2 Dept.) the Appellate Division held that child support payments may be waived prospectively, before the obligation to make such payments has accrued (citing Matter of O'Connor v Curcio, 281 A.D.2d 100). The party claiming a waiver must come forward with evidence of a voluntary and intentional relinquishment of a known and otherwise enforceable right to child support. It agreed with the Supreme Court that while the evidence supported a finding that the plaintiff waived her right to child support for the parties' son, upon their agreement for the defendant to take physical custody of him, the plaintiff did not waive her right to child support for their daughter, who continued to live with her. It affirmed the order modifying the judgment by vacating the provision obligating him to pay child support for the parties' daughter.

Reimbursement Required Where One Party Pays Marital Debt

In Le v Le, --- N.Y.S.2d ----, 2011 WL 834198 (N.Y.A.D. 2 Dept.) Supreme Court awarded custody of the parties' three children to the plaintiff, awarded the plaintiff a two-thirds share of the proceeds of the sale of the marital residence with a credit for "the difference between the princip[al] balance of the mortgage as of March 22, 2007 and the amount due at closing, ... after payment of closing costs and joint liens, as long as there are monies available from the proceeds," directed that the plaintiff was not required to pay maintenance to the defendant for the months that he resided in the marital residence, and awarded the plaintiff child support in the sum of $50 per month and arrears totaling $988.33. The Appellate Division held that the plaintiff was entitled to receive a credit against the proceeds of the sale of the marital residence for the money that she paid to reduce the balance of the mortgage during the pendency of the divorce action. She made these payments without any contribution from the defendant. Where, as here, a party has paid the other party's share of what proves to be marital debt, such as the mortgage, taxes, and insurance on the marital residence, reimbursement is required. However, the plaintiff was entitled to only a 50% of the reduction in mortgage principal because generally it is the responsibility of both parties to maintain the marital residence during the pendency of a matrimonial action. Therefore, the Supreme Court improvidently exercised its discretion in awarding the plaintiff a credit for 100% of the payments she made on the marital residence during the divorce proceedings.

Not Error to Exclude Parents from Courtroom During Child's Testimony in Neglect Case Where Attorney Present.

In the Matter of Deshawn D.O. --- N.Y.S.2d ----, 2011 WL 668113 (N.Y.A.D. 2 Dept.), the Appellate Division affirmed an order which found that the appellants neglected the subject child. The evidence established that the appellants engaged in a pattern of conduct which included the infliction of excessive corporal punishment, domestic violence in the child's presence, and punishment of the child by, inter alia, restricting his food intake and making him sleep on the floor. As a result, the child ran away from home numerous times, was afraid and refused to return home, and was so frustrated that he felt he might hurt himself or someone else. The petitioner established by a preponderance of the evidence that the child's physical and emotional condition was impaired, or was in imminent danger of becoming impaired, as a result of the appellants' conduct. The record demonstrated that the Family Court did not err in excluding the appellants from the courtroom during the child's testimony. Under the circumstances, the Family Court properly balanced the respective interests of the parties and reasonably concluded that the child would suffer emotional trauma if compelled to testify in the appellants' presence (citing Matter of Q.-L.H., 27 A.D.3d 738, 815 N.Y.S.2d 601). Because the appellants' attorneys were present during the child's testimony and cross-examined him on the appellants' behalf, the appellants' constitutional rights were not violated by their exclusion from the courtroom.

Challenge to Child Support in Surviving Stipulation Must Be By Plenary Action

In Brody v Brody, --- N.Y.S.2d ----, 2011 WL 834544 (N.Y.A.D. 2 Dept.) The Appellate Divison affirmed an order motion which denied the former wife’s motion to set aside the child support provisions of a stipulation of settlement entered into by the parties on September 13, 2002, which was incorporated but not merged into the judgment of divorce, on the ground that those provisions did not comply with Domestic Relations Law s 240(1-b)(h), and to recalculate child support de novo. It held a postjudgment motion in a matrimonial action is not the proper vehicle for challenging the propriety of child support provisions contained in a stipulation of settlement incorporated but not merged into a judgment of divorce. A challenge to such a stipulation must be made by the commencement of a separate plenary action to set aside the stipulation.

Validity of Same Sex Canadian Marriage Upheld

In re Estate of Ranftle,--- N.Y.S.2d ----, 2011 WL 650739 (N.Y.A.D. 1 Dept.) Surrogate's Court issued an opinion finding that respondent was "decedent's surviving spouse and sole distributee" (EPTL 4- 1.1) and thus, citation of the probate proceeding need not issue to anyone under SCPA 1403(1)(a). The court found that the decedent's same-sex marriage to respondent was valid under the laws of Canada, where it was performed, and did not fall into either of the two exceptions to the marriage recognition rule, as the marriage was not affirmatively prohibited or proscribed by natural law. Accordingly, the Surrogate's Court found that the marriage was entitled to recognition. Appellant petitioned the Surrogate's Court for vacatur of the probate decree and permission to file objections, alleging that the court was without jurisdiction to grant probate without citation having been issued on the decedent's surviving siblings. Appellant argued that the recognition of the decedent's same-sex marriage violated public policy in New York and that he should have been cited in the probate proceeding and provided with an opportunity to file objections thereto as a distributee. In denying the instant petition, the Surrogate found that appellant's position that same-sex marriage violated public policy had been "specifically addressed and rejected by the Appellate Division in Martinez v. County of Monroe (50 AD3d 189 [2008], lv dismissed 10 NY3d 856 [2008] ) and is patently without merit." The Appellate Division agreed. It observed that New York's long-settled marriage recognition rule affords comity to out-of-state marriages and "recognizes as valid a marriage considered valid in the place where celebrated". This rule does not extend such recognition where the foreign marriage is "contrary to the prohibitions of natural law or the express prohibitions of a statute". Same-sex marriage does not fall within either of the two exceptions to the marriage recognition rule. The failure of the Legislature to enact a bill affords the most dubious foundation for drawing positive inferences. Thus, the Legislature's failure to authorize same-sex couples to enter into marriage in New York or require recognition of validly performed out-of-state same-sex marriages, cannot serve as an expression of public policy for the State. In the absence of an express statutory prohibition legislative action or inaction does not qualify as an exception to the marriage recognition rule.


Family Court Abused its Discretion in Awarding the Father Sole Legal Custody of the Child, Relief He Did Not Request.

In Matter of Joseph A. v Jaimy B, --- N.Y.S.2d ----, 2011 WL 651298 (N.Y.A.D. 3 Dept.), the parties, who never married, had a son (born in 2004). Pursuant to an order of custody entered in November 2009, the parties were awarded joint legal custody of their son with primary physical custody to respondent (mother), and petitioner (father) having parenting time. As is relevant to this case, the order provided that for the Christmas holiday, the father was granted parenting time with the child from 3:00 P.M. on December 23 until 3:00 P.M. on Christmas eve, and the mother was granted parenting time with the child from 3:00 P.M. on Christmas eve until 3:00 P.M. on Christmas day during even-numbered years, and the reverse would occur during odd-numbered years. Less than one month after the November 2009 order was entered, a physical altercation occurred between the parties on Christmas day, as a result of which the father filed a police report and obtained an order of protection. He also commenced this modification proceeding seeking physical custody of the child. The mother then petitioned for a writ of habeus corpus based on allegations that the father violated the November 2009 order by failing to abide by the holiday schedule and by failing to return the child to her on Sunday evening, December 27, 2009. In January 2010, the mother cross-petitioned for a temporary modification of custody, requesting that "the child exchange not take place at the police station" based on the father's insistence that the custody exchange take place under police supervision. Family Court conducted a hearing in May 2010, at which the mother testified that, on Christmas day, when she attempted to retrieve the child at 3:00 P .M., the father and the child were not home. After driving to the homes of the father's relatives, she eventually returned to his grandmother's house, where the father arrived with the child shortly thereafter. The father testified that, as he attempted to pick up the child out of the car, the mother ran up the driveway, began to scream at him, jumped on his back and grabbed the child's arm. The father further testified that he handed the child to his cousin and called the police, and the child wet his pants as a result of the incident. The mother testified, however, that she attempted to greet the child, whereupon the father grabbed the child and pulled him; as a result, the mother's finger got caught in his grip. After the hearing, Family Court found that the father had violated the November 2009 custody order, but that the violation was not willful or intentional. Family Court also determined that the father should have sole legal and physical custody of the child commencing June 25, 2010, with the mother having parenting time on alternate weekends and each Wednesday afternoon, and holiday parenting time to follow the November 2009 order. The Appellate Division agreed with the mother that Family Court abused its discretion in awarding the father sole legal custody of the child, relief he did not request. Where, as here, neither the petition nor the father's testimony provided the mother with notice that he sought to modify the existing order of joint legal custody it was improper for Family Court to make such a modification. Family Court also failed to make a finding that a change in circumstances had occurred since entry of the November 2009 order and, thus, Family Court erred in modifying that order. Notwithstanding the failure of Family Court to make the threshold determination of a change in circumstances, it was not necessary to remit the matter to Family Court because the courts independent review of the record revealed insufficient evidence to support such a change. Accordingly, Family Court erred in modifying the custody order and the father's petition should have been dismissed.

Award of Maintenance Properly Made Taxable to Wife and Tax Deductible for Husband Where No Rationale Exists "For a Departure from the Norm Envisioned by Current Internal Revenue Code Provisions

In Girgenti v Girgenti, --- N.Y.S.2d ----, 2011 WL 668280 (N.Y.A.D. 2 Dept.) the parties were married on October 21, 1989. They had three children. At the time of the marriage, the defendant (husband) was the sole owner of AVA Pork Products, Inc., a company which distributed meat. Over the years, the husband's business grew. By 2005, the year this action was commenced, he owned several companies bearing the AVA name. At the time of the marriage, the plaintiff (wife) worked as a substitute teacher. Approximately one year later she obtained a full-time teaching position. However, she stopped working in December 1991, shortly before the birth of the parties' first child. Since that time, her teaching license expired. During the marriage, the husband acquired four parcels of real property and placed them under the ownership of several separate corporate entities in which he was the sole shareholder. He sold two of those parcels in 2007, for $535,000 and $300,000, respectively. His corporations continue to own the other two parcels and lease them out. They were appraised at $2,050,000 and $5,900,000. The wife commenced this action for a divorce on November 18, 2005. Prior to the trial, the parties stipulated as to the prices of the parcels which had been sold, as well as to the appraised value of the other two parcels. They also stipulated that, after the commencement of the divorce action, the husband withdrew the sums of $320,000 from the home equity line of credit account (HELOC) and $424,925 from his life insurance policy. Furthermore, the parties stipulated that the wife's position at trial regarding distribution of the husband's business would be that "the value of the AVA business should not be separately distributed," as she was seeking maintenance. After a two-day hearing, the parties were divorced by judgment entered December 22, 2009. The Supreme Court found that the four parcels of real property acquired by the husband during the marriage were not marital property, but were part of the AVA business, and, since the wife had waived her interest in the husband's business, she was not entitled to distribution of these assets. The Supreme Court also found that the money withdrawn from the HELOC and the life insurance policy was subsequently put into the business and, thus, the wife had no claim to these amounts. The wife was awarded, inter alia, 50% of the proceeds from the sale of the marital residence, and approximately $158,223 in cash, retirement accounts, and proceeds from the life insurance policy. She also was awarded maintenance in the sums of $20,000 per month for seven years and $10,000 per month thereafter for four years. The Appellate Divison observed that a stipulation entered into by spouses in contemplation of divorce is a contract subject to general principles of contract construction. Where possible, a contract should be interpreted to avoid inconsistencies and to give meaning to all of its provisions, giving a practical and reasonable interpretation to the language employed and the parties' reasonable expectations with respect thereto. The stipulation should be read as a whole to determine its purpose and intent. Here, the Supreme Court erred in determining that, in the stipulation of facts, the parties intended that the four parcels of real property acquired by the husband during the marriage were part of the AVA business. If the parties had intended that the four parcels of real property should not be distributed to the wife, there would have been no need for them to stipulate as to their respective value. Moreover, had the parties intended to exempt the four parcels from equitable distribution, they could have explicitly said so, just as they had done with regard to the husband's business. Therefore, the wife was entitled to 50% of the proceeds of the two parcels that were sold by the husband, and 50% of the appraised value of the properties currently owned by the husband. This amount included 50% of the proceeds of a mortgage which the husband took out on one of the parcels after the commencement of this action. The wife correctly contended that she was entitled to 50% of the amount that the husband withdrew from the home equity line of credit after the commencement of this action and 50% of the amount that the husband withdrew from his life insurance policy. Since this matrimonial action was commenced on November 18, 2005, $371,519.30 of the 2005 federal and state income tax refunds should have been deemed marital property. The award of maintenance was properly made taxable to the wife and tax deductible for the husband because no rationale exists "for a departure from the norm envisioned by current Internal Revenue Code provisions" (citing Grumet v. Grumet, 37 AD3d 534, 536; see also Markopoulos v. Markopoulos, 274 A.D.2d 457, 459). The Court pointed out that in light of its determination as to equitable distribution, the wife's maintenance award may have to be recalculated but took no position on this issue.

Motions to Enforce the Terms of a Stipulation of Settlement Are Not Subject to Statutes of Limitation

In Bayen v Bayen, --- N.Y.S.2d ----, 2011 WL 668354 (N.Y.A.D. 2 Dept.) the parties were divorced by judgment entered September 10, 1999. The judgment incorporated, but did not merge, the parties' stipulation of settlement. The parties' stipulation provided that the former husband would pay the former wife one half of the present value of his 401(k) pension as of the date of the stipulation, or the sum $41,144.15, pursuant to a Qualified Domestic Relations Order ( QDRO). In 2001 the former wife submitted a proposed QDRO to the Supreme Court, but the Supreme Court did not sign it, finding that it was inconsistent with the terms of the stipulation of settlement. In January 2009 the former wife moved, inter alia, to enforce the provision in the stipulation referable to the former husband's pension, to the extent of directing him to pay her the sum of $41,144.15, plus interest, for her share of his retirement pension or, alternatively, that she be awarded her marital share of the pension pursuant to the Majauskas formula (Majauskas v.. Majauskas, 61 N.Y.2d 481). The Supreme Court denied that branch of the motion, finding that it was time-barred by virtue of the six-year limitations period set forth in CPLR 213(6), applicable to an action based upon a mistake. The Appellate Divison affirmed, but on different grounds. It pointed out that an action to enforce a distributive award in matrimonial action is governed by the six-year statute of limitations set forth in CPLR 213(1) and (2). Contrary to the plaintiff's contention, however, motions to enforce the terms of a stipulation of settlement are not subject to statutes of limitation (citing Fragin v. Fragin, 80 AD3d 725, 2011 N.Y. Slip Op 00485, *1 [2d Dept 2011]; Cotumaccio v. Cotumaccio, 171 A.D.2d 723; but cf. Patricia A.M. v. Eugene W.M., 24 Misc.3d 1012). Nonetheless, the former wife was not entitled to the relief sought, but only to the entry of a QDRO, in compliance with the federal Employee Retirement Income Security Act (29 USC 1001 et seq), that accurately incorporates the terms of the stipulation. In interpreting the stipulation of settlement in a manner so as to give full meaning and effect to its material terms the court should arrive at a construction which will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized. Here, a plain reading of Article V of the stipulation of settlement yields the inescapable conclusion that the former wife agreed to accept, as part of her equitable distribution, the sum of $41,144.15 pursuant to the terms of a QDRO, when the former husband retires from his teaching position. The former husband has yet to retire. Accordingly, the former wife's right to receive this portion of equitable distribution remained inchoate and has not yet vested. Thus, while a request to compel the equitable distribution of the agreed-upon percentage of the former husband's pension pursuant to an ERISA-compliant QDRO was not time-barred, the former wife was not entitled to a present payment of $41,144.15.

"Home State", When Applied to a Child less than Six Months Old, Is Defined as "The State in Which the Child Lived from Birth with Any of the Persons Mentioned

In B.B. v A. B., --- N.Y.S.2d ----, 2011 WL 679324 (N.Y.Sup.) the parties were married on August 18, 2007 in South Lake Tahoe, California. Thereafter, they resided together in Orange County, New York. On November 28, 2010, respondent moved out of the marital residence. She was approximately seven months pregnant at the time. On December 2nd, she filed a family offense petition in Family Court, Orange County and was granted an ex parte Temporary Order of Protection against petitioner. On December 7th, through her attorney, she notified the Family Court that she was withdrawing the family offense petition which had not as yet been served upon plaintiff, and that she was "leaving for the holidays with her family." That same day, she left New York and returned to her parents' home in Alexandria Minnesota. She wrote to plaintiff she would be back by January 1st or 2nd with her parents. Respondent did not return home to the marital residence after the holidays as she had previously indicated. Plaintiff thereupon commenced an action for divorce in this court on January 4, 2011 by filing a Summons with Notice stating "Action for Divorce". Included in the items of relief was an adjudication of custody and visitation as to the yet unborn child. The infant child, F.B. was born on January 29, 2011 in Douglas County Hospital in Alexandria, Minnesota. The Writ of Habeas Corpus was issued by the court on February 1, 2011, and made returnable on February 15th. The writ was adjourned on consent to February 17th, on which date both counsel and plaintiff appeared and oral argument was held. The court waived the appearance of the infant who was only several days old when the writ was issued, and had developed some health issues. In the meanwhile, on February 11th, respondent filed a petition in District Court, Seventh Judicial District, Douglas County, Minnesota, for legal and physical custody, child support, and to schedule parenting time for petitioner. Supreme Court held that a petition for a writ of Habeas Corpus confers subject matter jurisdiction upon this Court to adjudicate the parties' custody dispute when the child is outside the State of New York when the petition was filed. the Uniform Child Custody Jurisdiction and Enforcement Act provides that its provisions are the exclusive jurisdictional basis for making a child custody determination by a court of this state and that physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination. DRL 76 (subds.2, 3). The court then had to determine whether New York or Minnesota the "home state", as that term is defined in 75-a (7) of Article 5-A of the Domestic Relations Law, popularly known as the Uniform Child Custody Jurisdiction and Enforcement Act. The Court noted that DRL, 75-a (7) defines "home state" as follows: “Home state" means the state in which the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period." The court could not overlook the clear and unambiguous language in DRL 75-a (7) that "home state", when applied to a child less than six months old, is defined as "the state in which the child lived from birth with any of the persons mentioned." The court found, based upon the totality of the circumstances, the infant's "home state" was Minnesota. Petitioner's application for a Writ of Habeas Corpus, requiring the return of the parties' infant child, F.B., born January 29, 2011, from the State of Minnesota to the State of New York, was denied, and the petition dismissed.

Appellate Division Affirms Family Court's Determination That Child's Best Interests Would Be Served by Awarding Sole Custody to Father and Permitting Him to Return with the Child to Their Native Country of Peru

In Matter of Ortega-Bejar v Morante, --- N.Y.S.2d ----, 2011 WL 668110 (N.Y.A.D. 2 Dept.) the mother and the father were married in 2000, and after the birth of the child later that year, they lived together in their native country of Peru. After an altercation with the father in January 2006, the mother left the marital home with the child. In May 2006, during the pendency of a custody proceeding commenced by the father in Peru, the mother took the child to the United States and settled on Long Island with her boyfriend and his family, without informing the father of their whereabouts. In March 2008, after discovering the whereabouts of the mother and the child, and after learning that the mother had, in May 2007, obtained an order from the Family Court, Queens County, awarding her custody of the subject child upon the father's default, the father commenced this proceeding in the same court, seeking custody of the subject child. The Family Court conducted a hearing on the father's petition, at which it heard testimony from the father and the mother, as well as a court-appointed forensic psychologist who, inter alia, interviewed the parties and the subject child and rendered a comprehensive evaluation specifically addressing the impact on the subject child of a change in custody. After the hearing, the Family Court granted the father's petition and, inter alia, awarded him sole custody of the child. The Appellate Divison affirmed. By removing the child from the marital home and relocating to a distant foreign country without informing the father of the subject child's whereabouts, the mother severely interfered with the relationship between the subject child and the father, and thus committed 'an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent. In addition, the parties' testimony-- viewed in light of the Family Court's assessment of their credibility, which is entitled to deference --as well as the testimony of the forensic psychologist, amply supported the Family Court's finding that the father is "far superior [to the mother] as a parent." Accordingly, the Family Court's determination that the subject child's best interests would be served by awarding sole custody to the father and permitting him to return with the child to their native country of Peru was supported by a sound and substantial basis in the record . The portion of the order appealed from addressing the issue of visitation provides that the mother "shall have actual visits as she and the father agree," with such visits to be "therapeutic, supervised, or unsupervised as they agree." Based on the evidence presented at the hearing, including the recommendations of the forensic psychologist, the subject child's best interests would be better served by the establishment of a detailed visitation schedule It remitted the matter to the Family Court for determination of a visitation schedule including, if necessary, a hearing.

Family Court Has the Authority to Modify an Existing Permanency Goal Absent a Specific Request by a Party

In Matter of Jacelyn TT,--- N.Y.S.2d ----, 2011 WL 240161 (N.Y.A.D. 3 Dept) the Appellate Division observed that at the conclusion of a permanency hearing, Family Court is required to make findings and enter an order of disposition "upon the proof adduced ... and in accordance with the best interests and safety of the child" (Family Ct Act 1089 [d] ). Where the court determines that the child is not to be immediately returned to the parent, it must indicate whether the permanency goal for the child "should be approved or modified " (Family Ct Act 1089[d][2][i] ) and may select among various alternatives including, among others, the child's eventual return to the parent or placement for adoption (see Family Ct Act 1089 [d][2][i][A]-[E] ). Notably, Family Ct Act 1089(c)(5)(i) characterizes petitioner's proposed permanency goal as a "recommendation." While the statute does not explicitly permit the court to modify a permanency goal in the absence of an application by one of the parties, it suggests such authority and does not expressly constrain the court from doing so . It concluded that Family Court has the authority to modify an existing permanency goal absent a specific request by a party.


Right to Receive Child Support Belongs to the Custodial Parent, Not to the Child

In Miller v Miller, --- N.Y.S.2d ----, 2011 WL 781377 (N.Y.A.D. 1 Dept.) the Appellate Division observed that the 1975 stipulation pursuant to which plaintiffs claimed entitlement to their deceased father's pension death benefits was superseded by the stipulation entered into between their parents in 1990. The 1990 stipulation was expressly intended "to settle all of the demands, claims, counterclaims, set-offs and defenses in the above-captioned matter [the divorce action], and to settle all disputes, claims, and agreements between the parties, and to once and for all put this matter to rest," and therefore encompassed the parents' ongoing dispute over the father's obligation to name plaintiffs as irrevocable beneficiaries under his pension. Furthermore, the 1990 stipulation provided that it "contain[ed] the entire agreement of the parties and supersede[d] and replace[d] any and all prior agreements or Court Orders previously entered in the above captioned matter." Thus, it was clear that the parents intended to replace the 1975 stipulation with the 1990 stipulation. In noted that in any event, the pension death benefits that the father promised plaintiffs when they were young children were his active service benefits, which would have been payable only if he had died before retiring. When he retired in 2001, he applied for "Option II" post-retirement death benefits, which entitled him to reduced payments during his lifetime and payments in the same amount for his designated beneficiary after his death for the remainder of the beneficiary's life (see Administrative Code of City of N.Y. 13-558). The Teachers Retirement System was obligated by law to honor his choice of beneficiary (see id.; see generally Matter of Creveling v. Teachers' Retirement Bd., 255 N.Y. 364, 372-373 [1931] ). Plaintiffs contended that their parents had no authority to extinguish the father's obligation, originally agreed to in the 1975 stipulation, to name them as irrevocable beneficiaries without their consent. To the extent they claimed entitlement to the benefits as third-party beneficiaries of a child support obligation embodied in the 1975 stipulation, their argument failed because the right to receive child support belongs to the custodial parent, not to the child ( citing Kendall v. Kendall, 200 App.Div. 702 [1922] ). To the extent they claimed entitlement to the benefits as third-party beneficiaries of non-support obligations under the 1975 stipulation, their argument failed because they had no right to enforce a superseded agreement--even one superseded without their consent--when the benefit they seek to enforce had not yet vested before the agreement was modified and the superseded agreement did not prohibit its modification.

Cruel and Inhuman Treatment Divorce Affirmed Based upon Pattern of Emotional Neglect, Dominion and Control Which Endangered Plaintiff's Mental Well-being

In Bennett v Bennett, --- N.Y.S.2d ----, 2011 WL 722261 (N.Y.A.D. 3 Dept.) the parties were married in 1980 and had six children. Plaintiff left the marital residence in May 2004 and commenced this action for divorce in October 2006. Following a bench trial, Supreme Court granted plaintiff a divorce on the ground of cruel and inhuman treatment. The Appellate Divison affirmed. It observed that action for divorce on the basis of cruel and inhuman treatment requires a showing of serious misconduct and, with a long-standing marriage, a high degree of proof showing a pattern of cruel and inhuman treatment affecting the plaintiff's physical or mental health such that continued cohabitation would be unsafe or improper. Supreme Court, as the trier of fact, has broad discretion in determining whether a spouse's conduct rises to the level of cruel and inhuman treatment and its factual determinations and assessment of witness credibility are entitled to great deference. As such, the court's determination will not be lightly overturned on appeal. The credible evidence adduced at trial revealed that plaintiff was subjected to authoritarian, demeaning and controlling treatment by defendant throughout their 26-year marriage. According to plaintiff's detailed and uncontradicted testimony, defendant enforced a strict, hierarchical structure of the household and expected her to be fully submissive to him. Defendant's conduct also included calling plaintiff names, isolating her from family and friends, undermining her authority as a parent, ridiculing and making disparaging comments about her and her physical appearance in front of the children, and preventing her from leaving the marital residence by, among other things, disabling the family vehicle. Moreover, defendant refused to engage in sexual relations with plaintiff for several years prior to her leaving the marital residence in 2004. Plaintiff offered evidence, which Supreme Court deemed credible, that defendant's conduct caused her to feel disrespected, emotionally broken-down, depressed and to have suicidal thoughts. She also vacated the marital residence on more than one occasion due to defendant's conduct and, ultimately, sought counseling. In light of this proof, there was a sufficient basis for Supreme Court's conclusion that defendant engaged in a pattern of emotional neglect, dominion and control which endangered plaintiff's mental well-being, thereby rendering it improper for her to continue to cohabit with him.

Failure to File a Current Statement of Net Worth Does Not Render Cross Motion for Enforcement Defective as Determination of Arrears Does Not Implicate Plaintiff's Financial Circumstances

In Shachnow v Shafer,--- N.Y.S.2d ----, 2011 WL 722403 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order which denied defendant wife's application for an upward modification of basic child support under the parties' settlement agreement, reallocated the parties' future responsibilities for certain add-on expenses, denied defendant's request for child support arrears and attorney's fees, and granted plaintiff husband's cross motion for child support arrears to the extent of directing defendant to pay plaintiff the sum of $48,445.41 for tuition payments made by plaintiff on defendant's behalf. It held that the court properly granted plaintiff's cross motion for arrears for the child's private school tuition owed by defendant under the separation agreement. Plaintiff's failure to file a current statement of net worth did not render the cross motion defective as determination of the amount of arrears does not implicate plaintiff's financial circumstances. In addition, defendant's admitted receipt of multiple notices of default sent by plaintiff contradicted her claim that plaintiff waived his right to defendant's contribution of 50% toward the child's private school tuition. It also found that Defendant had not demonstrated that the child's diagnosis of attention deficit hyperactivity disorder following execution of the parties' separation agreement resulted in medical and educational expenses that impacted defendant's ability to meet the needs of the child, and defendant failed to make a prima facie showing that a substantial, "unanticipated and unreasonable change in circumstances had occurred resulting in a concomitant need" such that an upward modification in child support is warranted (citing Merl v. Merl, 67 N.Y.2d 359, 362 [1986] ). In the absence of evidence that the child's needs are not being met, a hearing is unnecessary.

Support Magistrate Has No Authority to Hear Case When Respondent Raised Visitation as a Defense

In Matter of Barney v Van Auken, 916 N.Y.S.2d 533 (3d Dept 2011) Petitioner and respondent were the parents of a daughter. Upon turning 18 in November 2008, the child left respondent's home where she had resided as per a 2004 custody order and moved in with petitioner. Her reasons for leaving respondent's home included his disapproval of her 26-year-old boyfriend. In May 2009, petitioner commenced a proceeding seeking child support. Respondent asserted as defenses that petitioner had acted to alienate the child from him, the child was emancipated, and the child had abandoned her relationship with him. The Support Magistrate rejected respondent's defenses and directed that he pay $170 biweekly child support. Family Court denied respondent's objections. The Appellate Divison reversed. One of the issues that [Support Magistrates] are not empowered to hear and determine is contested visitation, which includes visitation as a defense, alleged here as an abandonment. Although the Support Magistrate had authority to issue a temporary order of support (see Family Ct. Act 439[c] ), when respondent raised visitation as a defense, the matter should have been immediately referred to Family Court for resolution of such issue




Fourth Department Holds That Matter of Oswego County Support Collection Unit v. Richards Should No Longer Be Followed.

In Matter of Huard v Lugo, --- N.Y.S.2d ----, 2011 WL 455295 (N.Y.A.D. 4 Dept.) Respondent father appealed from an order confirming the determination of the Support Magistrate that he willfully violated an order of child support and sentencing him to a term of incarceration of 90 days. The father contended that the Support Magistrate erred in allowing him to proceed pro se at the fact-finding hearing. The Appellate Divison noted that the father did not file any objections to the Support Magistrate's order. In Matter of Oswego County Support Collection Unit v. Richards (305 A.D.2d 1101, lv denied 100 N.Y.2d 637), it determined that, because the respondent failed to file objections to the Hearing Examiner's order finding willfulness and recommending commitment pursuant to Family Court Act 439 (former [e] ), he "waiv[ed] his right to appellate review of the finding of a willful violation. Section 439(e), however, was revised in 2004 by providing that a determination of willful violation of a support order where commitment is recommended does not constitute a final order. A determination by a support magistrate that a person is in willful violation of a support order and recommending commitment has no force and effect until confirmed by a Judge of the Family Court Such a determination by a support magistrate does not constitute a final order to which a party may file written objections. A party's "sole remedy" is to appeal from the final order of Family Court (Dakin, 75 AD3d at 640). It held that to the extent that Matter of Oswego County Support Collection Unit v. Richards required a party to file objections in order to preserve a contention regarding such a determination, it should no longer be followed. The Court concluded however, that the father failed to preserve his contention for review under the "normal rules of preservation" because he failed to raise it before Family Court at the confirmation proceeding, where he was represented by counsel. In any event, it found that the father's contention lacked merit.

Equitable Distribution Law (Domestic Relations Law 236[b] ) Not Applicable to a Stipulation of Settlement Entered During Proceedings Pursuant to MHL Article 81

In Matter of Donald LL,--- N.Y.S.2d ----, 2011 WL 458711 (N.Y.A.D. 4 Dept.) the Appellate Division held that the Equitable Distribution Law (Domestic Relations Law 236[B] ) is not applicable to a stipulation of settlement, entered during proceedings pursuant to article 81 of the Mental Hygiene Law, that divides property in a manner similar to equitable distribution but does not involve the dissolution of a marriage. Donald L.L. (defendant) and his wife, the person for whom plaintiff was, inter alia, appointed guardian ( defendant's wife), were married in 1966. In May 2005, defendant's wife suffered a stroke that caused severe brain damage and left her unable to care for herself. Defendant was also in poor health and not capable of caring for his wife. Thus, defendant's wife lived in the home of plaintiff, who provided 24-hour care for defendant's wife. In October 2007, defendant commenced a proceeding pursuant to Mental Hygiene Law article 81, seeking, inter alia, an order naming the Catholic Family Center as the guardian of his wife's person and property. Plaintiff cross-petitioned for an order naming himself as guardian of defendant's wife and her property. During proceedings in Supreme Court on January 24, 2008, plaintiff and defendant entered into an oral stipulation of settlement whereby plaintiff would be named the guardian of the person and property of defendant's wife, which the court converted into an order naming plaintiff as the guardian. With plaintiff acting as guardian of defendant's wife, plaintiff and defendant immediately entered into a second oral stipulation of settlement whereby defendant and his wife would live separately, with defendant having the right to visitation. Plaintiff and defendant further stipulated, inter alia, that the marital property of defendant and his wife would be divided between them and that defendant would make weekly "maintenance and support" payments to his wife. The second stipulation included the following statement: "[Plaintiff and defendant] would like to stipulate to settle issues of property settlement and spousal support in the nature of an opting[-]out agreement as the same is provided for under the Domestic Relations Law. [They] do not intend to make this a divorce proceeding but would like [the stipulation] to serve as their agreement as to the issues ... set forth [herein] and to that extent would also like to sign a written adoption of the oral stipulation." After the terms of the second oral stipulation were read into the record, plaintiff and defendant signed a written adoption of the oral stipulation. In an order and judgment entered April 21, 2008, the court, inter alia, determined that defendant's wife was an incapacitated person, appointed plaintiff as the guardian of the person and property of defendant's wife and incorporated by reference the terms of the stipulation of settlement. In September 2008, plaintiff commenced am action seeking to enforce the stipulation of settlement with respect to the "maintenance and support" payments by defendant and to void various allegedly fraudulent transfers between defendant and defendant Patricia Fitzgerald. Plaintiff moved for, inter alia, a preliminary injunction enjoining defendants from "dealing" with any of their property pending resolution of the action. Defendants cross-moved for, inter alia, an order vacating and setting aside the stipulation of settlement. In an order entered January 28, 2009, the court denied the motion and cross motion. On Appeal the Defendants contended that the court erred in granting relief in the form of equitable distribution without conducting a hearing on the economic issues between defendant and his wife. The Appellate Division rejected that contention inasmuch as those economic issues were resolved by the stipulation of settlement. Furthermore, the record demonstrated that the stipulation of settlement was the product of extensive negotiations conducted after full disclosure of economic information. Therefore, there was no need to remit the matter for the resolution of economic issues. It held that the Equitable Distribution Law does not require a different result. Domestic Relations Law 236(B) is "applicable to actions for an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage" and other similar actions (236[B][2][a] ). Thus, the concept of equitable distribution is written into the laws of the State so as to apply only in certain cases involving the abrogation of the marital status.. In the absence of an action for the abrogation of the marital status, a court cannot "hold [a party] liable to [another party] ... solely on the basis of equitable distribution" (Yedvarb, 92 A.D.2d at 592). Here, however, the court did not hold any party liable solely on the basis of equitable distribution because plaintiff, as the guardian of defendant's wife, and defendant resolved all economic issues through a negotiated settlement agreement that included an explicit statement that defendant and his wife were not divorcing. Therefore, the Equitable Distribution Law was not applicable to this case. In light of the determination, it did not address defendants' contention that the written adoption of the stipulation of settlement did not meet the requirements of Domestic Relations Law 236(B)(3).



To Establish That an Family Offense Has Occurred Does Not Require Proof Beyond a Reasonable Doubt Unless the Remedy to Be Imposed Is Punitive

In Matter of Schneider v Arata, --- N.Y.S.2d ----, 2011 WL 337962 (N.Y.A.D. 2 Dept.) the Appellate Division observed that Family offense proceedings, in general, provide for remedies that are civil in nature and to establish that an offense has occurred does not require proof beyond a reasonable doubt unless the remedy to be imposed is punitive. The respondent's acquittal of the criminal charge related to the same conduct alleged in the family offense petition does not have res judicata effect with respect to the family offense proceeding, as the acquittal did not decide an identical issue material to the petition. Accordingly, the Family Court erred in dismissing the petition on this basis. Likewise, the constitutional protection against double jeopardy presents no bar to the family offense proceeding, as no punitive remedy is sought therein. As the record was insufficient to permit the Court to determine whether the parties had an intimate relationship within the meaning of Family Court Act 821(1)(e) the matter was remitted to the Family Court for a hearing to determine whether the Family Court has subject matter jurisdiction under Family Court Act 812(1)(e) and, if so, whether a family offense had been committed.

Family Ct Act 413(1)(G) Does Not Limit the Accrual of Arrears During Relevant Period Absent Respondent's Affirmative Request for and Successfully Obtaining Relief from Original Order

In Matter of Madison County Commissioner of Social Services v Felker, --- N.Y.S.2d ----, 2011 WL 240138 (N.Y.A.D. 3 Dept.) Pursuant to a May 2007 order Respondent father was obligated to pay the child's mother, Mary Chafee, $25 per week in child support. The order noted that respondent, though unemployed at that time, had held full-time employment in the past and was "healthy and capable of working." Since entry of that order, respondent never paid support as required therein. In December 2008, petitioner commenced a violation proceeding on behalf of Chafee. A Support Magistrate found respondent in willful violation of the support order and recommended a sentence of incarceration be imposed if he did not begin to make regular payments in accordance with the May 2007 order. The Support Magistrate entered a money judgment directing payment of $3,325 in arrears. Following a confirmation hearing held in accordance with Family Ct Act 439(a), Family Court confirmed the finding that respondent had willfully failed to obey the support order and ordered that respondent be incarcerated for 180 days unless he purged himself of the contempt by payment of the arrears--which then totaled $3,650--in their entirety. The Appellate Division affirmed. While respondent testified that he was indigent and earned no income since the issuance of the May 2007 order due to his inability to obtain work, he did not provide any competent evidence of either a physical or mental condition prohibiting him from earning income. Although he also claimed that he had unsuccessfully applied for numerous jobs since entry of the May 2007 order, he failed to provide documentation of his alleged job search and his testimony was not credited. Respondent also admitted that, although he was ordered to attend the career center and the Worker Parents Initiative, he failed to follow-up with attendance after his initial meeting. The Appellate Division rejected Respondent’s contention that Family Court erred in failing to cap his arrears at $500 pursuant to Family Ct Act 413(1)(g) because his income was below the federal poverty guidelines. While respondent testified that he continued to be unemployed and was attempting to apply for public assistance, if he wished to "invoke the cap on arrears provided by Family Ct Act 413(1)(g), his remedy was to make an application to modify, set aside or vacate the earlier order". Respondent admitted that he has never sought a modification of the May 2007 order of support. Thus, inasmuch as Family Ct Act s 413(1)(g) will not limit the accrual of arrears during the relevant period absent respondent's affirmative request for and successfully obtaining relief from the original order (Matter of Cortland County Dept. of Social Servs. v. VanLoan, 77 AD3d at 1136; see Family Ct Act s 451; see also Matter of Moore v. Abban, 72 AD3d at 973; Matter of Martinez v. Torres, 26 AD3d 496, 497 [2006] ), the court did not err in confirming the Support Magistrate's determination.

Absent Amendment Order of Protection May Not Be Based Upon Post-Petition Incidents

In Matter of Ungar v Ungar, --- N.Y.S.2d ----, 2011 WL 256559 (N.Y.A.D. 2 Dept.) petitioner (son) filed a family offense petition dated September 19, 2008, against the appellant (father). The petition alleged harassment and that the most recent incident had occurred on September 11, 2008. The Family Court issued a temporary order of protection and thereafter denied the father's motion to dismiss the petition. On February 9, 2010, a fact-finding hearing was held and the Family Court heard testimony from both the son and the father. The Family Court granted the petition and issued an order of protection against the father, based, in part, upon a post-petition incident purportedly occurring in October 2008. The Appellate Division held that as the son specifically acknowledged that the petition had not been amended, the Family Court improperly issued the order of protection based, in part, upon allegations of acts that occurred in October 2008 (citing Matter of Czop v. Czop, 21 AD3d 958, 959; Matter of Cavanaugh v. Madden, 298 A.D.2d 390; Matter of Whittemore v. Lloyd, 266 A.D.2d 305). Considering the other allegations set forth in the petition, the testimony proffered at the hearing before the Family Court failed to establish, by a preponderance of the evidence, the necessary elements of the offenses of harassment in the first degree or harassment in the second degree. Since the record did not support the Family Court's determination that the father committed family offenses warranting the issuance of the order of protection, the order of protection was reversed, the petition denied, and the proceeding dismissed (see Family Ct Act 841).

Supreme Court Grants Declaratory Judgment Dissolving Vermont Civil Union

In Parker v Waronker, --- N.Y.S.2d ----, 2010 WL 5653528 (N.Y.Sup.) the matter was commenced as an action for divorce on April 16, 2010. The defendant filed and served an affidavit consenting to the relief requested. After reviewing the submissions of the parties, the Court, on its own motion, elected to convert the action to one for declaratory relief and the defendant submitted written consent to such relief. The Court found that the parties were two female adults who entered into a civil union in the State of Vermont on June 18, 2004. Such civil unions are authorized in that State under Vt Stat Ann, Tit 15, s 1201. In the years that followed, their relationship deteriorated to the point that the defendant left their mutual residence on June 30, 2007, and the parties have lived apart since that time. The plaintiff was a resident of the State of New York. The defendant was a resident of the State of Ohio. The resumption of their relationship as a civil union was not reasonably probable. The parties were preluded from obtaining a dissolution of their civil union in the State of Vermont because neither party was currently a resident of Vermont as required by Vermont Law. See Vt Stat Ann, Tit 15, s 592. There were no children born of this relationship. Both parties waived any claims for any ancillary relief. The Court pointed out that in Dickerson v. Thompson, 73 AD3d 52 (3d Dept 2010), the Court held that the Supreme Court has subject matter jurisdiction over an action for declaratory and equitable relief seeking dissolution of a civil union validly entered into in another state. The decision was based on principles of comity and the emerging public policy of the State of New York to protect the rights of individuals in same sex relationships in a variety of contexts. The Court in Dickerson v. Thompson, supra, left undecided, however, the issue of what relief could be afforded to the litigants in such an action, concluding its opinion with the comment that "our conclusion that subject matter jurisdiction exists does not in any way determine the ultimate question of what, if any, relief is available on the merits." Having concluded that it had jurisdiction to determine whether this civil union should be dissolved, the court found that plaintiff demonstrated grounds for such dissolution under the applicable Vermont Statutes. Vt Stat Ann, Tit 15, s 1206 provides, inter alia, that "the dissolution of civil unions shall follow the same procedures and be subject to the same substantive rights and obligations that are involved in the dissolution of marriage in accordance with chapter 11 of this title...." Vt. Stat Ann, Tit 15 s 551 provides that "(a) divorce from the bond of matrimony may be decreed: ... (7) When a married person has lived apart from his or her spouse for six consecutive months and the court finds that the resumption of marital relations is not reasonably probable. As this Court made a finding that the parties lived apart for a period of more than six consecutive months and that the resumption of this civil union was not reasonably probable, as a matter of law the plaintiff was entitled to a judgment dissolving the civil union entered into by the parties on June 18, 2004.

Family Court Has Authority to Modify an Existing Permanency Goal Absent Specific Request by a Party

In Matter of Jacelyn TT,--- N.Y.S.2d ----, 2011 WL 240161 (N.Y.A.D. 3 Dept.) Petitioner initiated proceedings seeking continuation of placement. Family Court held a permanency hearing at which petitioner and the mother agreed that placement of the children should continue, with a goal of return to a parent. Carlton TT. (the father) appeared but presented no evidence and did not seek custody. In two subsequent permanency hearing orders pertaining solely to Jacelyn TT. and Sasha TT., the court continued placement of the children but modified the goal of their permanency plans from reunification to placement for adoption. The mother appealed from both orders and the father appeals only from the order relating to Jacelyn TT. (the child). The father argues that Family Court abused its discretion by modifying the permanency goal without any request from the parties. The Appellate Division disagreed. It observed that at the conclusion of a permanency hearing, Family Court is required to make findings and enter an order of disposition "upon the proof adduced . . . and in accordance with the best interests and safety of the child" (Family Ct Act 1089 [d] ). Where the court determines that the child is not to be immediately returned to the parent, it must indicate whether the permanency goal for the child "should be approved or modified " (Family Ct Act 1089[d][2][i] ) and may select among various alternatives including, among others, the child's eventual return to the parent or placement for adoption (see Family Ct Act 1089 [d][2][i][A]-[E] ). Notably, Family Ct Act 1089(c)(5)(i) characterizes petitioners’ proposed permanency goal as a "recommendation." While the statute does not explicitly permit the court to modify a permanency goal in the absence of an application by one of the parties, it suggests such authority and does not expressly constrain the court from doing so. It concluded that Family Court has the authority to modify an existing permanency goal absent a specific request by a party. It also concluded that Family Court's determination was supported by a sound and substantial basis in the record.

New Computer Programs For New York Divorce Attorneys and Mediators

The New York Divorce and Family Law ™ Agreement Creator, quickly drafts a professional agreement for you in no time. It contains a separate on-screen manual, written by Joel R. Brandes, entitled "Drafting Agreements for the New York Divorce and Family Law Attorney". It costs $549.00 for the first license. Each additional license costs $199.00.

The New York and Family Law™ Marital Property Distributor, which contains an on-screen “Guide to the Equitable Distribution Law”, written by Joel R. Brandes, calculates, on a "what if" basis, the total value of each spouses' share of the marital assets. This program allows the user to re-distribute marital property to any percentage, and has the unique "auto-balancer" function which automatically distributes a selected asset between the parties to create a total 50-50 asset balance. It costs $99.00.

The New York Divorce and Family Law™ Child Support Calculator, contains an on-screen “Guide to the Child Support Standards Act”, written by Joel R. Brandes. It automatically generates a helpful summary report, calculates the child support amount on combined parental income, over $130,000, and drafts for you the language required to be included in agreements, stipulations, and findings of fact. It costs $199.00. Each additional license after three licenses costs $99.00.
The New York Divorce and Family Law™ Temporary Maintenance Calculator, contains an on-screen "Guide to the Temporary Maintenance Guidelines" written by Joel R. Brandes. It automatically generates a detailed report showing each step of the temporary maintenance calculation required by the new law. As you enter the parties incomes into the program, the " income entry" screen calculates the "presumptive amount" of temporary maintenance, so that you can try a range of scenarios and immediately see the outcome. It costs $199.00. Each additional license after three licenses costs $99.00.

The Court of Appeals amended its Rules of Practice effective December 8, 2010 .

Former section 500.2 was repealed in its entirety and a new section 500.2 was substituted for it. Sections 500.11, 500.12, 500.14 and 500.23 were amended. The number of paper copies of records, appendices and briefs has been reduced to 20 instead of the current 25 for normal coursed appeals and certified question reviews. In addition, parties are required to file on disk digital versions of each paper filing. Appeals to be considered under section 500.11 of the Rules are subject to a similar digital filing requirement. The companion briefs and record material in digital format must comply with the current "technical specifications" available from the clerk's office. The requirements regarding submission in digital format apply to all appeals for which the preliminary appeal statement is filed on or after the December 8, 2010 effective date.



Family Court Has Subject Matter Jurisdiction over Family Offense Proceedings Where Alleged Acts Occurred Outside State

In Matter of Richardson v Richardson, --- N.Y.S.2d ----, 2010 WL 4366892 (N.Y.A.D. 2 Dept.) the Appellate Division, in an opinion by Judge Levanthal, held that the Family Court has subject matter jurisdiction over family offense proceedings where the alleged acts occurred outside of the state and even outside of the country. It held that Family Court t Act §812 grants the Family Court subject matter jurisdiction to hear such proceedings and that the Family Court properly exercised jurisdiction over the parties' petitions, despite the fact that the acts alleged occurred on the island territory of Anguilla. On March 4, 2009, Annette P. Richardson and her sons Aaron J. Hourie and Andrew G. Hourie (respondents) filed three separate family offense petitions seeking the entry of orders of protection in favor of them and against Dorothy E. Richardson (appellant), Annette's mother, and her sons' grandmother. The alleged family offenses included, inter alia, assault, harassment, and menacing. In their respective petitions, the respondents described how they were related to the appellant and asserted that the parties all resided together in a home in Elmont, Nassau County. The petitions detailed certain incidents which allegedly occurred on February 19, 2009, on the island of Anguilla. According to the respondents, the appellant pushed Annette to the floor twice, causing her to hurt her back and hit her head. The appellant allegedly was screaming, yelling, and cursing at Annette during the assault. In addition, the appellant allegedly used a glass bowl to strike Andrew on the head, causing injuries. Further, the appellant allegedly chased Aaron with a meat cleaver and threw an ashtray at him, which hit him in the back. On March 6, 2009, the appellant filed three of her own family offense petitions seeking orders of protection in her favor and against the respondents. The appellant alleged that on or about February 14, 2009, also in Anguilla, the respondents committed the family offenses of, inter alia, aggravated harassment in the second degree, harassment in the first degree, attempted assault, and menacing in the third degree. During an initial appearance before the Family Court, the appellant's counsel objected to the court's exercise of subject matter jurisdiction because the alleged offenses occurred in Anguilla. The Family Court held that "the fact that this took place in the West Indies is no different from it taking place in Pennsylvania, Virginia, or Vermont. They're [all residents] of Nassau County and they're entitled to protection from future occurrences. Family Orders of Protection… are to prevent further hostility and further assault, attempted assault,… et cetera."On June 24, 2009, after a hearing, the Family Court found that the respondents proved by clear and convincing evidence that the appellant had committed certain family offenses against them and granted the respondents' respective petitions. The Family Court also entered three two-year orders of protection on behalf of the respondents and against the appellant. The orders of protection directed the appellant to stay away from each of the respondents and to refrain from assaulting, stalking, and similar conduct. In addition, the Family Court issued three orders of dismissal which dismissed the appellant's three petitions. As a threshold matter, the court held that Family Court acquired personal jurisdiction over the appellant, as she appeared before the Family Court without challenging personal jurisdiction. Additionally, the appellant affirmatively sought the entry of orders of protection against the respondents (citing Family Ct Act §167; CPLR 320; cf. Matter of El-Sheemy v. El-Sheemy, 35 AD3d 738 [by appearing in article 6 proceeding and seeking custody, the mother waived her claim that the Family Court did not acquire personal jurisdiction over her]). It indicated that appellant's contentions provided the Court with an opportunity to address an issue which did not appear to have been previously addressed by an appellate court in this state: the limits of the subject matter jurisdiction of the Family Court with respect to family offenses which occurred outside of the state, and even outside of the country. In its analysis the court started with the proposition that the Family Court is a court of limited jurisdiction constrained to exercise only those powers conferred upon it by the state Constitution or by statute. Family Court Act §812(2)(b) provides: "[t]hat a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection." Here, the plain language of Family Court Act §812 provides that the Family Court has jurisdiction over family offense proceedings where the petitions allege the commission of certain proscribed acts that occur between spouses or former spouses, or between parent and child or between members of the same family or household. There is no geographic limitation in Family Court Act §812, or elsewhere in the Family Court Act, as to where a family offense is to have occurred in order to confer subject matter jurisdiction upon the Family Court. The next issue was whether the geographic or territorial limitation on the jurisdiction of the criminal court (see generally People v. McLaughlin, 80 NY2d 466, 472 [stating that "for the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the State"]) also limits the jurisdiction of the Family Court. Criminal Procedure Law §20.40(1)(a) provides, in pertinent part, that "[a] person may be convicted in an appropriate criminal court of a particular county, of an offense… when [c]onduct occurred within such county sufficient to establish [a]n element of such offense." The Appellate Division pointed out that Family Court is not a criminal court. Whereas the criminal court's subject matter jurisdiction over family offenses is limited by geography, there is no statutory provision which states that such a geographic limitation also applies to the Family Court. Nothing in the state Constitution, Family Court Act §812, or the legislative history of Family Court Act article 8 requires the predicate acts of a family offense to have occurred in a particular county, state, or country in order for the Family Court to possess subject matter jurisdiction. It noted that its decision was generally consistent with various decisions of the Family Court. However, it held that to the extent that those cases relied upon a "minimum contacts analysis," or suggest that a residual injury within this state is necessary in order to confer subject matter jurisdiction upon the Family Court pursuant to New York's long arm statute (see CPLR 302), such reasoning should not be followed.



Mother Held In Contempt for Violating Anti-Alienation Provision of Judgment.

In Rubin v Rubin, --- N.Y.S.2d ----, 2010 WL 4539522 (N.Y.A.D. 2 Dept.) the parties October 30, 2003 stipulation of settlement was incorporated, but not merged, into their judgment of divorce dated March 26, 2004. With respect to custody and visitation, the stipulation of settlement provided that the parties would share legal custody of the two children, that the mother would have sole physical custody of the children, and that the father would have certain visitation. In addition, pursuant to those provisions, each party was specifically prohibited from doing anything that would have the effect of alienating the children from the other party. The Appellate Division affirmed an order which held the mother in contempt for failure to comply with this provision. It held that to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court's order, with knowledge of that order's terms, thereby prejudicing the movant's rights. Where, a period of incarceration is imposed to vindicate the authority of the court or to compel respect for the court's mandate, the contemnor's willful violation of the court's mandate must be proven beyond a reasonable doubt The father met this burden. At the hearing it was established, among other things, that the mother violated the custody and visitation provisions of the stipulation of settlement by intentionally doing certain things which would have the natural effect of "turn [ing]" the children "away from" the father, and which actually had that effect. However, under the particular facts of this case, a sentence directing the mother's immediate incarceration "would serve no purpose"and the court held that it was appropriate to suspend the sentence subject to the mother's future compliance with the custody and visitation provisions of the stipulation of settlement.



Child Support Payments May Be Suspended Where Noncustodial Parent Establishes Right of Reasonable Access to Child Unjustifiably Frustrated by Custodial Parent

In Thompson v Thompson, --- N.Y.S.2d ----, 2010 WL 4540329 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order which granted the father's petition alleging a violation of a previous order of visitation and suspended the father's obligation to pay child support and related expenses regarding the child, nunc pro tunc from December 24, 2008, unless and until a determination was made that visitation between the father and the child has resumed. In January 2004 the father commenced a proceeding seeking visitation with the parties' who was born in 1996. After a hearing, by order entered January 11, 2006, the Family Court granted the father's petition for therapeutic visitation. On appeal, the Appellate Division modified that order by adding a directive that the father and the child submit to individual therapy (Matter of Thompson v. Yu-Thompson, 41 AD3d 487). Soon after the Family Court entered its order, the father filed a petition alleging violation of the order by the mother. Visits finally commenced in December 2006 and went well, but one month later, the father filed this petition alleging that the mother was not responding to repeated requests to schedule further visitations. During the proceedings on the petition, visitations resumed, but interactions between father and son became progressively more strained, with the child refusing to visit with his father at all or to engage with his father when visits did occur. After a hearing, the Family Court found that the child was so closely allied with his mother and her negative view of the father that "it appears that the hoped-for reconnection between [the child] and his father" was unlikely at that time. Finding that the mother had failed to encourage, and had interfered with, visitation, the Family Court granted the father's violation petition and suspended the father's child support payments until visitation resumes. The Appellate Division held that where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended. Such suspension of child support is warranted only where the custodial parent's actions rise to the level of 'deliberate frustration' or 'active interference' with the noncustodial parent's visitation rights. The evidence at the hearing supported the Family Court's finding that the mother deliberately frustrated the child's court-ordered visitation with his father such that suspension of child support payments until visitation resumed was warranted. There was evidence that the mother communicated her enmity towards the father to the child, made inappropriate disclosures concerning the parties' history, and failed to encourage and facilitate regular visitation, missing numerous scheduled visitations and ultimately supporting the child's decision to refuse visitation. The evidence supported the finding that the mother, by her example, her actions, and her inaction, deliberately frustrated visitation by manipulating the child's loyalty and orchestrating and encouraging the estrangement of father and son.

The Irretrievable Breakdown Ground for Divorce

The Irretrievable Breakdown Ground for Divorce
By Joel R. Brandes, Bari Brandes Corbin and Evan B. Brandes


Domestic Relations Law §170 was amended to add “irretrievable breakdown” in subdivision 7 as a ”no-fault ground” for divorce. It provides that a husband or wife may be granted a judgment or divorce on the ground that: “(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.”

In order to establish a cause of action and obtain a divorce under Domestic Relations Law §170 (7) the plaintiff must satisfy the residence requirements of Domestic Relations Law § 230, and, in addition, establish that: (1) the relationship between husband and wife is irretrievably broken; (2) for a period of at least six months; and (3) the plaintiff or defendant must state under oath that the relationship between husband and wife is irretrievably broken.

However, no judgment of divorce may be granted upon such a finding unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

Where the parties to a contested action for a divorce have agreed that the divorce will be uncontested it has been the practice of New York courts to permit them to submit the matter to the court for determination upon affidavits and the required papers, or to hold an inquest on a fault ground. Where the papers were submitted, the court would reserve decision until the resolution of the ancillary issues. Where the court held an inquest, the court would grant a judgment of divorce, but hold the entry of the judgment in abeyance pending the resolution of the ancillary issues. The practice of granting the judgment and holding its entry into abeyance pending the resolution of the ancillary issues is not permitted under subdivision 7 which prohibits the granting of a judgment of divorce until all of the ancillary issues are resolved by the parties, or determined by the court and incorporated into the judgment of divorce. However, the court can still hear the testimony and reserve decision.

Irretrievable Breakdown Defined

The term “irretrievably broken” is not defined in the statute. Black's Law Dictionary states that “irretrievable breakdown of the marriage” is a ground for divorce that is based on incompatibility between marriage partners and that is used in many states as the sole ground of no-fault divorce. — Also termed irretrievable breakdown; irremediable breakdown of the marriage; irremediable breakdown. Cf. irreconcilable differences; incompatibility. However, it does not define the term which is different from “irreconcilable differences” which Black's Law Dictionary defines as “persistent and unresolvable disagreements between spouses, leading to the breakdown of the marriage. • These differences may be cited — without specifics — as grounds for no-fault divorce. At least 33 states have provided that irreconcilable differences are a basis for divorce. Cf. irretrievable breakdown of the marriage; incompatibility.”

An examination of the case law in other states which have adopted the “irretrievable breakdown” ground for divorce appear to indicate that a marriage has irretrievably broken down when the relationship is for all intents and
purposes ended. Where no guidelines are established as to what constitutes an irretrievable breakdown, courts consider each case individually, and the determination whether the marriage is broken must be based on an inquiry into all the surrounding facts and circumstances. In general, a marriage is irretrievably broken when, for whatever reason or cause and no matter whose fault, the marriage relationship is for all intents and purposes ended, when it is no longer viable, when the parties are unable, or refuse, to cohabit, or when it is beyond hope of reconciliation or repair. The principal question to be determined is whether the marriage is at an end and beyond reconciliation.

In some states irretrievable breakdown of a marriage may be sufficiently shown by both parties alleging the breakdown, or by one party seeking a divorce or dissolution on the ground of irretrievable breakdown, and the other seeking divorce or dissolution on a ground involving misconduct. In some states the decision that a marriage is irretrievably broken need not be based on any identifiable objective fact. It is sufficient that one or both parties subjectively decide that their marriage is over and there is no hope of reconciliation. Under one statute, where both parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after considering the statement and holding a hearing on the matter must make a finding whether or not the marriage is irretrievably broken and enter an order of dissolution or dismissal accordingly.

The consensus appears to be that the term “irretrievable breakdown” means a breakdown of the marriage to the point that reconciliation is not possible or probable. For example, Alabama ‘s statute requires a finding that “further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family. The Delaware statute requires a finding that reconciliation is improbable as proof that the marriage has irretrievably broken down. The Connecticut statute requires a period of separation “by reason of incompatibility” for a continuous period prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled.” The Illinois statute requires a period of separation and a finding that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family. Kentucky laws provide that if one of the parties disputes that the marriage is irretrievably broken, the court must consider all relevant factors, including the prospect of reconciliation, and make a finding whether the marriage is irretrievably broken. The Wisconsin statute requires that the court find an irretrievable breakdown of the marriage with no possible chance at reconciliation.

The Uniform Marriage and Divorce Act § 305 (c) defines a finding of irretrievable breakdown as “a determination that there is no reasonable prospect of reconciliation.”

Some states couple the irretrievable ground with a period of separation of anywhere from sixty days to two years. For example Missouri law provides that if the defendant denies that the marriage is irretrievably broken, the plaintiff must prove one or more of what appear to be fault grounds, or that the parties have lived apart for 24 months. The Connecticut statute requires the parties to have lived apart by reason of incompatibility for a continuous period of at least the eighteen months.

Irretrievable breakdown has been adopted as a ground for divorce in the following 17 states: Alabama, Arizona , Colorado , Connecticut , Delaware , Florida , Georgia , Hawaii , Illinois , Indiana , Kentucky , Massachusetts , Minnesota, Missouri, Nebraska, Pennsylvania, and Wisconsin. However, none of the state laws define the term irretrievable breakdown.

Sufficiency of Proof and Defenses
It is clear from the statute that the court must find that the marriage is irretrievably broken as a predicate to the granting of a divorce. On its face Domestic Relations Law § 170(7) appears to allow the court to grant a judgment of divorce where one spouse states under oath that the relationship between husband and wife is irretrievably broken. This construction would eliminate any defenses to this ground. However, the authority in other jurisdictions which have adopted this ground for a divorce supports the conclusion that the defendant can raise the defense that the marriage is not irretrievably broken. Moreover, this construction does not eliminate the five year statute of limitations applicable to actions for a divorce. The Domestic Relations Law provides that no action for divorce may be maintained on a ground which arose more than five years before the date of the commencement of the action except where abandonment or separation pursuant to agreement or decree is the ground.
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However, in those states where irretrievable breakdown is a ground for divorce it has been held that the court presiding over an action for divorce on the ground of irretrievable breakdown has a duty to determine whether the marriage is, in fact, irretrievably broken.

The Low Income Support Obligation and Performance Improvement Act of 2010

The Low Income Support Obligation and Performance Improvement Act of 2010
By Joel R. Brandes, Bari Brandes Corbin and Evan B. Brandes

The "Low Income Support Obligation and Performance Improvement Act," amends the provisions of the Domestic Relations Law and the Family Court Act with regard to modification of child support orders.

Domestic Relations Law § 236 [B](9)(b)(2) was amended by separating out the "substantial change of circumstances" basis for modification of child support orders into its own section for clarity. It provides two new bases for the modification of an order of child support, and is applicable to an application for either an upward or downward modification of child support. The first basis for modification of child support is the passage of three years since the order was entered, last modified, or adjusted. The second basis for modification of child support is a 15 percent change in either party's income since the order was entered, last modified or adjusted. Any reduction in income must be involuntary and the party whose income has been reduced must have made diligent attempts to secure employment commensurate with his or her education, ability and experience.

Thus, a reduction in a party’s income is not a basis for a downward modification of child support, unless the reduction in income is involuntary and the party whose income has been reduced has made diligent attempts to secure employment commensurate with his or her education, ability and experience. However, a 15% increase in a party’s income is a basis for an upward modification of child support, overruling the prior rule that an increase in income alone was not a basis to modify child support. Neither of these rules are applicable where the parties “opt out” of this modification provision in a surviving, validly executed, agreement or stipulation.

The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. This provision also provides that incarceration is a not a bar to finding a substantial change in circumstances under certain conditions.

Domestic Relations Law § 236 [B](9)(b) (2) now provides:

(2) (i) The court may modify an order of child support, including an
order incorporating without merging an agreement or stipulation of the
parties, upon a showing of a substantial change in circumstances. Incar-
ceration shall not be a bar to finding a substantial change in circum-
stances provided such incarceration is not the result of non-payment of
a child support order, or an offense against the custodial parent or
child who is the subject of the order or judgment.
(ii) In addition, unless the parties have specifically opted out of
the following provisions in a validly executed agreement or stipulation
entered into between the parties, the court may modify an order of child
support where:
(A) three years have passed since the order was entered, last modified
or adjusted; or
(B) there has been a change in either party's gross income by fifteen
percent or more since the order was entered, last modified, or adjusted.
A reduction in income shall not be considered as a ground for modifica-
tion unless it was involuntary and the party has made diligent attempts
to secure employment commensurate with his or her education, ability,
and experience.

Family Court Act § 451 is amended to provide two new bases for modification of an order of child support: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party's income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. This section provides that incarceration is not a bar to finding a substantial change in circumstances under certain conditions, and also clarifies that retroactive support is paid and enforceable as provided under Family Court Act § 440.
The language of Family Court Act § 451 governing the modification of child support orders and the language of Domestic Relations Law § 236 [B](9)(b) are conformed so that both provisions provide for a "substantial change in circumstances" as a basis for modification of an order of child support.

Opting-out of Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b)

The “Child Support Standards Act” allows the parties to "opt out" of its provisions regarding the basic child support obligation by executing a written agreement doing so. The statute states that it does not alter the rights of the parties to "voluntarily enter into validly executed agreements or stipulations.” It specifically provides that the parties may agree that the child support standards "established by this subdivision" are not applicable to validly executed agreements or stipulations voluntarily entered into between the parties, "when executed.” However, a validly executed agreement or stipulation that "opts-out" of the child support standards act which is presented to the court for incorporation in an order or judgment must include a provision that the parties have been advised of the provisions of Section 240(1-b) of the Domestic Relations Law and New York Family Court Act §413(1)(b). An agreement which opts out of the law must also contain a provision that the parties have been advised that the "basic child support obligation" provided in New York Domestic Relations Law §240(1-b) and New York Family Court Act §413(1)(b) "would presumptively result in the correct amount of child support to be awarded." In the event that the Agreement or Stipulation deviates from the "basic child support obligation,” the Agreement or Stipulation must specify the amount that the "basic child support obligation." would have been and the reason or reasons that such Agreement or Stipulation does not provide for payment of that amount. These provisions may not be waived by either party or counsel.
The failure to include such a clause in an "opting-out" agreement is fatal.  

Unlike the provisions of the Child Support Standards Act, Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b) permit the parties to “opt out “of the three year or fifteen percent threshold for modification of a child support order “in a validly executed agreement or stipulation,” without a provision that the parties have been advised of any specific provisions of the Domestic Relations Law or Family Court Act. Nor is there any requirement that the Agreement or Stipulation must specify the reason or reasons that they are opting out of the provisions of Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b).

Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b) provide that “unless the parties have specifically opted out of the following provisions in a validly executed agreement or stipulation entered into between the parties, the court may modify an order of child support where: (A) three years have passed since the order was entered, last modified or adjusted; or (B) there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted.”

We suggest the following opting out clause:

“In accordance with the provisions of Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b) the parties to this (agreement) (stipulation) have specifically opted out of the provisions of Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b) which provide that “the court may modify an order of child support where: (A) three years have passed since the order was entered, last modified or adjusted; or (B) there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted. In the event that the provisions of Domestic Relations Law § 236 [B](9)(b)(2)(ii) and Family Court Act § 451 (2)(b) are subsequently modified to add additional grounds or requirements for modification of an order of child support, this opting out provision shall apply to such additional grounds or requirements, and shall remain in full force and effect, to the extent permitted by law.

Does Boden Survive?

Existing statutory and case law distinguishes between modification of a child support provision in a court order or divorce judgment, where there is no surviving agreement, and modification of a child support provision in a separation agreement or stipulation, where there is a surviving separation agreement or stipulation.

Where there is merely a court order or judgment ordering child support the rule is that in order to have an award modified so as to increase or decrease payments for child support, a substantial change of circumstances must be shown to have occurred since the time of the entry of the order.

An agreement executed by the parties, which is fair and adequate when made and which provides support for children, confines the obligation of the non-custodial parent to that which is set forth in the agreement. Unless and until the agreement is set aside or modified, no other award may be made for child support. However, the parties cannot by agreement eliminate or diminish either parent’s duty to support a child of the marriage. A child is entitled to support, maintenance and education in accordance with his parent’s financial means and ability.  Family Court Act §461(a) provides that a separation agreement does not diminish a parent’s duty to support his child, and the initial adequacy of the provisions of a separation agreement for the child may be challenged at any time.

Where there is a separation agreement or stipulation that is incorporated into but not merged with a divorce decree the agreement or stipulation is an independent contract binding on the parties unless impeached or challenged for some cause recognized by law. Courts of this State enjoy only limited authority to disturb the terms of a separation agreement.

In Matter of Boden v. Boden, the Court of Appeals held: “Where, as here, the parties have included child support provisions in their separation agreement, the court should consider these provisions as between the parties and the stipulated allocation of financial responsibility should not be freely disregarded. It is to be assumed that the parties anticipated the future needs of the child and adequately provided for them. It is also to be presumed that in the negotiation of the terms of the agreement the parties arrived at what they felt was a fair and equitable division of the financial burden to be assumed in the rearing of the child. Included in these obligations is the financial responsibility of providing the child with adequate and reasonable educational opportunities. Absent a showing of an unanticipated and unreasonable change in circumstances, the support provisions of the agreement should not be disturbed. Unless there has been an unforeseen change in circumstances and a concomitant showing of need, an award for child support in excess of that provided for in the separation agreement should not be made based solely on an increase in cost where the agreement was fair and equitable when entered into.” In Boden, petitioner sought an increase in respondent's support obligations in order to help send the child to a costly private university even though respondent had honored his obligation under the separation agreement to provide for the child's education. The Court declined to modify the parties' “stipulated allocation of financial responsibility” absent a showing that an unanticipated or unreasonable change in circumstances occurred with a concomitant showing of need, or that the agreement was unfair when made.”

Boden was subsequently qualified in Brescia v Fitts, on the basis that the needs of a child must take precedence over the terms of the agreement when it appears that the best interests of the child are not being met. Recognizing this, the Court, in Brescia, established a means for modification of support obligations, based purely on a “needs of the child” analysis in order to determine whether there has been a sufficient showing to justify modification of the agreement. In Brescia, the Court of Appeals stated that a “different situation is presented, however, where it is the child's right to receive adequate support that is being asserted. Family Court's power regarding child support derives from the Family Court Act. Section 461 of that act, insofar as it related to the case, provides that the parents' duty to support their child is not diminished by the existence of, inter alia, a separation agreement or judgment of divorce and, in the absence of an order of Supreme Court directing support, Family Court may make an order of support. Thus, the principles iterated in Boden did not alter the scope of Family Court's power to order support where the dispute concerns the child's right to receive adequate support. In Brescia, the Petitioner introduced evidence tending to show, among other things, that the combination of her own income and the payments contributed by respondent did not adequately meet the children's needs. Specific items of expense were detailed, as well as petitioner's and respondent's respective financial situations. The Court of Appeals pointed out that whether the evidence adduced by the parties shows a change of circumstances sufficient for Family Court to order a modification was a question best left to the discretion of the lower courts, whose primary goal is, of course, to make a determination based upon the best interests of the children. Considering both the circumstances as they existed at the time of the prior award and at the time the application is made several factors may, in a proper case, enter into the determination, including the increased needs of the children due to special circumstances or to the additional activities of growing children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior life-styles of the children. Consideration of such factors in a given case may lead to the determination that the children's best interests require an upward modification of the child support award.”

In Gravlin v Ruppert the Court of Appeals held that the complete breakdown in the visitation arrangement, which effectively extinguished respondents' support obligation, constituted an unanticipated change in circumstances that created the need for modification of the child support obligations. It noted that, in Brescia it established a means for modification of support obligations, based purely on the needs of the child.
Separately, in Boden, it recognized the need for modification based on maintaining the fairness of the original agreement as between the parties in light of a subsequent unanticipated change in circumstances, or undoing an agreement that was unfair ab initio. In Gravlin, there was no showing that the child's needs were not being met. Thus, there was no reason to engage in a “needs of the child” analysis. The petitioner's income had increased to nearly $56,000 and respondent's was approximately $30,000. The increase in petitioner's expenses alone did not justify a modification. Nevertheless, the Court of Appeals concluded that the complete breakdown in the parties visitation arrangement, which effectively extinguished respondents' support obligation, constituted an unanticipated change in circumstances that created the need for modification of the child support obligations. Under the separation agreement, the parties anticipated that the child would spend approximately 35% of her time with her father-at his sole expense-until she reached majority or became emancipated, and he would in addition pay for her clothing. These expectations were part of the basis for the parties' agreement to deviate from CSSA. The unanticipated change in respondent's relationship with his daughter created a need for modification of the support terms of the separation agreement as those terms became unworkable. It was the necessity of ensuring that respondent continued to support his child as agreed upon by the parties, despite the inability to perform under the original terms of the agreement, that justified modification of the support provisions. Under the agreement, both parents assumed an obligation of support yet, after visitation broke down through no apparent fault of either party, only the custodial parent was providing support. The Court of Appeals held that under these circumstances the Family Court may reestablish the support obligation of the noncustodial parent by modifying the support provisions of the separation agreement.

The U.S. Constitution provides that the state may cannot impair the obligation of contract. Nevertheless Domestic Relations Law §236 [B][9][b], which was enacted in 1980, provides that the court may modify the maintenance portion of decree/order upon a showing of extreme hardship, and that it is a modification of the agreement for such time and under such circumstances at the court shall determine. This provision may be unconstitutional. In Busetti v Busetti, the Second Department, in construing the maintenance modification provisions contained in New York Domestic Relations Law §236(B)(9)(b), stated that paragraph (b) of Subdivision (9) purports to allow the court to, in effect, suspend the separation agreement for as long as necessary and to what extent necessary and, thus, precludes the party who is adversely affected by the modification from bringing a contract claim to recover the difference between the amount agreed to and the amount as modified. In a footnote, it stated that there was some question as to whether this is constitutional and cited Kleila v Kleila, decided only some two months before the effective date of the Equitable Distribution Law. There the Court of Appeals indicated that "any attempt to confer upon a court of any jurisdiction within the United State broad powers to modify the terms of a separation agreement might well run afoul of constitutional limitations upon the State’s power to tamper with vested contractual rights."

Domestic Relations Law §236 [B][9][b] does not contain similar language with respect to modification of child support where there is a surviving agreement because public policy permits the court to always modify the order where the child is being inadequately supported, and in certain circumstances it may declare the agreement or its child support provisions void, where it violates the public policy enunciated in the Child Support Standards Act.

 Thus, in Priolo v Priolo, finding that the modification was in keeping with the "overriding policy of ensuring adequate child support," the Appellate Division concluded that "the terms of the settlement agreement must yield to the welfare of the children and cannot support an action to recover damages for breach of contract arising from the increase in the father’s child support obligation." In Pecora v Cerillo the court held that since children are not bound by separation agreements, one that does not provide adequate support for the parties’ child does not bind a court from remedying the inadequacy. Therefore, an inadequate child support provision "is voidable and cannot bind an appropriate court from remedying the inadequacy nor can it bind a parent from seeking to remedy the inadequacy.” It rejected that plaintiffs’ argument that it was unconstitutional under the impairment of contracts doctrine (U.S. Const. Art. 1 §10) to preclude a breach of contract action in such a case stating that a statute that is intended to prevent an economic wrong, in this case against the children, is not unconstitutional as impairing contract rights." In Maki v Straub the Appellate Division held that the terms of an inadequate child support provision in an agreement do not bind the court or the child and cannot support a civil action for breach thereof, and that the theory behind such an action was contrary to the public policy incorporated in the "Child Support Standards Act."

The first sentence of Domestic Relations Law § 236 [B](9)(b) (2) and Family Court Act § 451 (2)(b) now provide that the “court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances. “

This language might, at first blush, appear to eliminate the rule enunciated in Boden v Boden that where there was a surviving agreement, a child support award in excess of that provided for in a separation agreement should not be made “[u]nless there has been an unforeseen change in circumstances and a concomitant showing of need”.

Actually, the first sentence of Domestic Relations Law § 236 [B](9)(b)(2) and Family Court Act § 451 appears to be a recognition of the rules enunciated in Boden, Brescia and Gravlin v Ruppert. In Boden, where there was a surviving agreement, the Court declined to modify the parties' “stipulated allocation of financial responsibility” absent a showing that an unanticipated or unreasonable change in circumstances occurred with a concomitant showing of need, where the agreement was fair when made.” The Court, in Brescia, where there was also a surviving agreement, established a needs test for modification of support obligations, where the child's right to receive adequate support is being asserted, based purely on a “needs of the child” analysis. In Brescia, the Petitioner introduced evidence tending to show, among other things, that the combination of her own income and the payments contributed by respondent did not adequately meet the children's needs. Specific items of expense were detailed, as well as petitioner's and respondent's respective financial situations. The principles iterated in Boden did not alter the scope of Family Court's power to order support where the dispute concerns the child's right to receive adequate support.

The prior rule in New York, where there was no surviving agreement, was unresolved. The Second Department held that an increase in the income of the supporting parent was sufficient to obtain an upward modification of child support. The other Departments held that a change in circumstances warranting an upward increase in child support must include an increase in the needs of the children as well as an increase in means of the supporting parent, and that an increase in income of the supporting parent alone was insufficient. This rule was adopted by the Court of Appeals in Boden v Boden, 42 NY2d 210 (1977). Domestic Relations Law § 236 [B](9)(b)(2) and Family Court Act § 451 do not eliminate this rule since they both permit the parties to opt out of these modification provisions, including the 15% change in income provision, by a surviving agreement or stipulation.

It does not appear to be intention of the legislature to overrule Boden v Boden and to allow the court to readjust the parties’ respective child support obligations in those situations where there is a surviving agreement, and the child is being adequately supported. As Brescia v Fitts tells us, “the principles iterated in Boden did not alter the scope of Family Court's power to order support where the dispute concerns the child's right to receive adequate support.” The legislative intent may be gleaned from the Assembly Memorandum, which states that the amendments to Domestic Relations Law § 236 [B](9)(b) and Family Court Act § 451 are intended to clarify portions of the Family Court Act to make it clear that a child support order may be modified upon a substantial change in circumstances, and harmonize the Family Court Act with the Domestic Relations Law. “This conforming change of including substantial change in circumstances as a basis for modification in the Family Court Act is not intended to alter existing case law regarding the standard for modifications for orders incorporating but not merging separation agreements. “ (emphasis supplied)

If the legislature intended to enact a statute specifically overruling Boden, the Assembly Memorandum would have mentioned the Boden decison in the memorandum or that statute would state that so.

The New York State Assembly Memorandum in support of the legislation, states that the amendments to Domestic Relations Law § 236 [B](9)(b) and Family Court Act § 451(2) are intended to clarify portions of the Family Court Act to make it clear that a child support order may be modified upon a substantial change in circumstances and harmonize the Family Court Act with the Domestic Relations Law. The memorandum specifies that “This conforming change of including substantial change in circumstances as a basis for modification in the Family Court Act is not intended to alter existing case law regarding the standard for modifications for orders incorporating but not merging separation agreements”

The Assembly Memorandum refers to the fact that the amendments to Domestic Relations Law § 236 [B](9)(b) and Family Court Act § 451(2) provide for two additional bases, for obtaining a review of an order of child support: the passage of three years or a 15 percent change in a party's income since the order was entered, last modified or adjusted. The Assembly Memorandum states that the intent of this measure is not to have these bases limit or define substantial change in circumstances, nor is the intent to supersede case law interpreting substantial change of circumstances as a standard for modification. The additional bases are not intended to be considered as necessary threshold requirements for modification of child support on the basis of a substantial change of circumstances. The amendments are intended to continue to allow evidence of a substantial change in circumstances as permitted under existing case law for modification. The legislation is intended to adopt and conform the rule found in the existing body of case law in order to clarify that a reduction in income may not be considered even under the new 15 percent change in income basis unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience.

Clarification of Knights v Knights

Domestic Relations Law § 236 [B](9)(b) (2)(i) and Family Court Act § 451 (2)(i) provide that: “Incarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. This sentence is not part of the modification provisions of Domestic Relations Law § 236 [B](9)(b) (2)(ii) and Family Court Act § 451 (2)(ii). It appears in subdivision (i) of the statute and follows the sentence: “The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances.”
In Knights v Knights the Court of Appeals held that the Family Court did not abuse its discretion in denying the petitioner’s application for a downward modification of child support following his conviction of a felony resulting in a prison sentence. The court had concluded that it would be unfair for an individual who had freely chosen to commit a crime to be relieved from the accrual of a support obligation. The court concluded that the order should remain in effect, and during the period of petitioner’s release it would determine whether to enter judgment for the entire amount due or forgive part of the arrears that had accumulated since the filing of the application. It held that in exercising its discretion to modify a prior support order the court may consider various factors including "a loss of income or assets by a parent . . ." The Court of Appeals held that the court may consider whether a supporting parent’s claimed financial difficulties are the result of that parent’s intentional conduct. Here, it found the significant the fact that the petitioner’s financial hardship was solely the result of his wrongful conduct culminating in a felony conviction and imprisonment. Thus, Family Court did not abuse its discretion.
The Assembly Memorandum in support of the legislation states that the amendments to Domestic Relations Law § 236 [B](9)(b) and Family Court Act § 451 (2) provide that incarceration is not a ban to a finding of a substantial change in circumstances and is intended to address the impact of the New York State Court of Appeals decision in Knights v. Knights, 71 N.Y.2d 865 (1983), and thereby clarify that a court may modify an order of child support where a party has been incarcerated considering the circumstances of the case, provided, however, that the incarceration is not the result of nonpayment of child support or an offense against the custodial parent or child who is the subject of the order or judgment of child support. This statement appears to indicate that the court may not modify a child support order where the incarceration is the result of nonpayment of child support or an offense against the custodial parent.

Family Court Act § 461

Family Court Act § 461 was amended to reflect the two new bases for modification of an order of child support.

Retroactivity

The legislation adopting these amendments on July 15, 2010, provides, with regard to the modification provisions, that: “This act shall take effect on the ninetieth day after it shall have become law; provided however, that sections six and seven of this act shall apply to any action or proceeding to modify any order of child support entered on or after the effective date of this act except that if the child support order incorporated without merging a valid agreement or stipulation of the parties, the amendments regarding the modification of a child support order set forth in sections six and seven of this act shall only apply if the incorporated agreement or stipulation was executed on or after this act's effective date. “ The act's effective date is therefore October 13, 2010.

Thus, the modification provisions apply to any action or proceeding to modify any order of child support entered on or after October 13, 2010, and if a child support order incorporated a surviving agreement or stipulation of the parties, the amendments regarding the modification of a child support order only apply if the incorporated agreement or stipulation was executed on or after October 13, 2010.

Notably, the Assembly Memorandum states that the “substantial change in circumstances threshold” in the amendments to Domestic Relations Law § 236 [B](9)(b) and Family Court Act § 451 is intended to apply prospectively to all orders of child support. If the order incorporates but does not merge a stipulation or settlement agreement, the amendment would be effective only if the stipulation or agreement was executed on or after the effective date of the amendment. Parties who have consented or will consent to deviations from the basic child support order calculated under the Child Support Standards Act would be protected. The Amendments are not intended to affect vested rights under existing valid separation agreements or stipulations.

Notice Requirement

Domestic Relations Law § 236 [B](7) was amended to add a new subdivision (d). It requires that all orders establishing a child support obligation contain a notice regarding the right to apply for a modification of the order if there has been a substantial change in circumstances or the occurrence of the additional enumerated bases for modification.

Similarly, Family Court Act § 440 was amended to add a subdivision 4. It requires that all orders establishing a child support obligation contain a notice regarding the right to apply for a modification of the order if there has been a substantial change in circumstances or the occurrence of the additional enumerated bases for modification.

Authorization to Require Non-custodial Parent to Seek Employment

Family Court Act § 437-a was added to authorize the Family Court to require the non-custodial parent of a child to seek employment, or to participate in job training, employment counseling or other programs designed to lead to employment, where such programs are available, if he or she is unemployed at the time the court is establishing the support order unless he or she is in receipt of supplemental security income (SSI) or social security disability (SSD) benefits.

The Assembly Memorandum indicates that Family Court Act § 437-a is added to permit the Family Court to require an unemployed non-custodial parent to seek employment, participate in job training, employment counseling or other programs designed to lead to employment at the time an order is established. Noncustodial parents in receipt of SSI or SSD may not be required to participate in such employment programs. It states that this provision is not intended to limit the non-custodial parent's obligation to support his or her child, nor curtail the court's obligation to set a fair and reasonable child support obligation in accordance with the Child Support Standards Act.
Social Services Law § 111-h was amended to add a paragraph (20) which provides that if the respondent is required to participate in work programs or activities, and if the order of support is made payable on behalf of persons in receipt of public assistance, the support collection unit may not file a petition to increase the support obligation for twelve months from the date of entry of the order if the respondent's income is derived from the work activity or program. Social Services Law § 111-h provides that no modification of the order would be sought for 12 months from the date of entry of the order if a non-custodial parent is or was enrolled in work programs or activities and the order of support is payable to a local department of social services pursuant to an assignment.

These provisions are effective October 13, 2010, except that sections 6 and 7 only apply to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill.