Important New Decisions - September 9, 2012

First Department Holds Where 'Substantial Compliance' with Matrimonial Rules, Attorney Allowed to Recover Fees Owed for Services Rendered, but Not Yet Paid For and Block Billing Is Not Improper

In Daniele v Puntillo, --- N.Y.S.2d ----, 2012 WL 3079201 (N.Y.A.D. 1 Dept.), Plaintiff was retained by defendant in March 2004, replacing defendant's prior counsel in her divorce proceeding. Plaintiff and defendant executed a retainer agreement in March 2004. The agreement specified the nature of representation, a $25,000 retainer fee, billing arrangements and payments, and billing rates, among other details. Attached to the retainer agreement was a Statement of Client's Rights and Responsibilities, also executed by both parties in March 2004. Plaintiff contended that on May 14, 2004, he filed a copy of the executed retainer agreement with the court as well as defendant's updated statement of net worth, as mandated by 22 NYCRR 1400.3. Shortly after executing both documents, defendant paid the $25,000 retainer fee. Plaintiff represented defendant from March 2004 through December 2004, when defendant's divorce proceedings ended in a stipulation of settlement. During that time, plaintiff sent defendant detailed billing statements, which were in "block billing" form, meaning that each timekeeper would enter a description of his or her work for a particular day, along with the total amount of time spent on those tasks for that day. Defendant made intermittent payments up until December 2004. When plaintiff commenced suit, there was an outstanding balance of $104,918.46.

At the close of plaintiff's case, defendant moved for a directed verdict dismissing the complaint on the ground that plaintiff failed to comply with 22 NYCRR 1400.3, thereby barring his claim for fees. The trial court denied the motion on the ground that defendant had admitted compliance with 22 NYCRR 1400.3 in her answer. The trial continued to conclusion, and the court found an account stated in that defendant had not established that she objected to the bills. The court then granted judgment to plaintiff in the amount of $106,048.96.

The Appellate Division affirmed. It observed that where there has been 'substantial compliance' with the matrimonial rules, an attorney will be allowed to recover the fees owed for services rendered, but not yet paid for. The applicable rule, 22 NYCRR 1400.3, mandates that an attorney in a matrimonial matter file a copy of the signed retainer agreement with the court, along with the statement of net worth. The record showed that a copy of the executed retainer was filed with the court on May 14, 2004, along with the updated statement of net worth. Even if plaintiff, as substituted counsel, should have filed the retainer within 10 days of its execution, he substantially complied with the requirements by filing the executed copy with the updated statement of net worth. Although it would have been better practice for plaintiff to have put proof of the filing in evidence on his direct case, his failure to do so did not change the fact that he substantially complied with the rule.

The Appellate Division rejected the Defendant’s argument that plaintiff's billing practices and willful spoliation of evidence should result in sanctions, and dismissal of his claims. Defendant argued that block billing was improper and that "task billing," which listed the time for each separate task and is an enhanced level of billing, should have been used. However, block billing is common practice among law firms and neither 22 NYCRR 1400.3 nor the retainer agreement called for task based billing. Regarding the spoliation of evidence allegation, defendant contended that plaintiff intentionally destroyed a particular attorney's individual time sheets, thereby preventing her from using those records to impeach plaintiff. Plaintiff testified at trial that the information from that attorney's individual time sheets was entered into the firm's time entry system, then reviewed by him and incorporated into the firm's bills to defendant. The court found that, in any event, the time sheets were not key evidence, and thus their alleged destruction did not deprive defendant of the ability to defend against plaintiff's claim for fees. Accordingly, a spoliation sanction was not warranted.


Second Department Holds Wife of 30 Year Marriage Who Worked Only 3 Years During Marriage Properly Denied Maintenance Where She Was Highly Educated and Similarly Situated to the Defendant

In Carr-Harris v Carr-Harris,--- N.Y.S.2d ----, 2012 WL 3204572 (N.Y.A.D. 2 Dept.) plaintiff and the defendant were married for more than 30 years, during which time the defendant worked as a church minister. The parties had four children, one of whom was a minor at the time the trial was commenced. At trial, the plaintiff testified that the defendant was the main breadwinner of the family and that, although she had a Master's degree and had worked towards two separate doctorate degrees, she worked for only three years during the course of the marriage. She also testified that the parties had borrowed more than $75,000 from her aunt, Gloria Ewsuk, although they did not execute a promissory note or other documentation confirming the loan. The parties also borrowed $40,000 from the plaintiff's mother, Kathleen Petrochko, and received $50,000 from the defendant's mother, Zoya Carr-Harris. The plaintiff claimed that, although the parties executed a promissory note for the sums received from Zoya, the principal amount was a gift and the parties were obligated only to repay $20,000 in interest, of which $17,000 had been repaid. Toward the end of the trial, the plaintiff admitted that she signed confessions of judgment in favor of various family members and friends, claiming that these individuals had loaned her money during the marriage and during the divorce proceedings and that she wished to ensure that the lenders would be repaid. The defendant claimed that the sums received from Ewsuk were gifts and that he never had any direct discussions with Ewsuk regarding the alleged loans. He acknowledged that the parties borrowed $40,000 from Petrochko, which they agreed to pay back with interest. He also claimed that the entire sum received from Zoya was a loan, and the parties were obligated to repay the principal and accumulated interest.

Supreme Court found that the sums received from Ewsuk were gifts, as there was no documentary evidence to support the claim that the sums were intended to be loans. It determined that the parties owed $70,000 to Petrochko, $50,000 to Zoya, and $21,000 to the three nonminor children, reflecting the sums the parties had borrowed from their children in order to make a down payment for the purchase of the marital home. Supreme Court determined that the plaintiff was not entitled to reimbursement of the cost of repairs to the marital residence, as her proof on this point was insufficient. Supreme Court ordered the sale of the marital home and determined that the parties should share equally in the proceeds after payment of all loans and expenses other than the liens that the plaintiff unilaterally placed on the home in favor of her family and friends. It imputed an income of $40,000 to the plaintiff, noting that she was highly educated and had not worked to her potential. Supreme Court found that the defendant, who was now working as a public school teacher, had an income of $54,000. The court ordered the defendant to pay $705.91 per month in child support and determined that the parties would share in the cost of statutory add-ons, with the defendant being liable for 57% of such expenses. In addition, it ordered defendant to maintain health insurance for the minor child until he reached the age of 21, ordering the parties to share the cost of unreimbursed medical expenses with the defendant paying 57% of such costs. The defendant was also ordered to pay child support arrears from his share of the proceeds of the sale of the marital residence. The Supreme Court found both parties at fault for the litigious nature of the proceedings and determined that the parties were equally situated, as both were in the process of beginning new careers. Thus, Supreme Court denied the plaintiff's requests for counsel fees and spousal support. The parties were ordered to share equally in the educational costs for the minor child's college through his 21st birthday.

The Appellate Division affirmed. It found that Supreme Court appropriately exercised its discretion in denying spousal maintenance to the plaintiff. The plaintiff was highly educated and was similarly situated to the defendant in terms of age, educational background, and future potential to work. Like the defendant, she was in the process of beginning a new career and, according to her own testimony, she should be able to earn approximately $40,000 per year. Thus, Supreme Court's imputation of income to her was appropriate, and the record supported the court's finding that the plaintiff was not entitled to spousal maintenance. It found that for the same reasons, Supreme Court properly denied the plaintiff an award of counsel fees. It also found that each of each of the Supreme Court's findings regarding the loans was supported by the record. The Supreme Court was free to credit the defendant's testimony. The Supreme Court properly denied the plaintiff's request for reimbursement of expenses that she allegedly incurred in making repairs to the marital home because the plaintiff failed to sufficiently prove that claim.

　
　

　

Second Department Holds Violation of the Rule Against ex Parte Communications Will Support a Motion Seeking an Attorney's Disqualification, Including Situations Where the Party Is a Child

　

In Madris v. Oliviera,--- N.Y.S.2d ----, 97 A.D.3d 823, 2012 WL 3024450 (N.Y.A.D. 2 Dept.) the Appellate Division reversed an order which granted mother's motion to disqualify the father's attorney and the attorney's law firm from appearing in the action. In the course of this Family Court Act article 6 proceeding, the father and the subject child allegedly experienced difficulty communicating with the caseworker assigned by the Nassau County Department of Social Services (DSS) to complete the court-ordered investigation. The father's attorney wrote to the caseworker's supervisor to alert her to the problem and to ask that she interview the parties to ensure that a complete and accurate report was produced for the court, and sent copies of the letter to the attorneys for the mother and the child. The mother moved to disqualify the father's attorney and the attorney's law firm on the basis that the attorney had violated Rules of Professional Conduct (22 NYCRR 1200.0) Rule 4.2 by engaging in improper ex parte communications with the child and with the DSS. The court granted the motion and disqualified the father's attorney and her firm.

The Appellate Division reversed. It observed that a party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted. While the right to choose one's counsel is not absolute, disqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties' substantive rights, thus requiring any restrictions to be carefully scrutinized. The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination.. Whether to disqualify an attorney is a matter which lies within the sound discretion of the court.

Rule 4.2 of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that an attorney may not communicate with a represented party regarding the subject of the representation (subsection a) or permit his or her client to do so (subsection b) unless opposing counsel has consented or the communication is authorized by law. Although a violation of the rule against ex parte communications will support a motion seeking an attorney's disqualification, including situations where the party is a child, conclusory assertions of conduct violating a disciplinary rule will not suffice to support disqualification. Here, the court improperly placed the burden on the father rather than on the mother (i.e., on the opponent of disqualification rather than on the movant) and failed to consider the evidence in the light most favorable to the nonmoving party. There was no evidence that the father or his attorney improperly questioned the child regarding his interactions with the caseworker assigned to conduct the court-ordered investigation. Because there was no violation of Rule 4.2(b) of the Rules of Professional Conduct (22 NYCRR 1200.0), there was no basis for disqualification of the father's attorney due to communications with the child.

The Appellate Division also held that family court misapprehended the role of the DSS where it has merely been assigned as the agency to complete a court-ordered investigation. An entity cannot claim a blanket protection from ex parte interviews by taking the position that house counsel is responsible for all future legal matters affecting that entity. Similarly, if a governmental party were always considered to be represented by counsel for purposes of the rule against ex parte communications, the free exchange of information between the public and the government would be greatly inhibited. Because the DSS was not a represented party within the meaning of Rule 4.2(a) of the Rules of Professional Conduct (22 NYCRR 1200.0), the court erred in disqualifying the father's attorney and the attorney's law firm on this basis as well.

　

Important New Decisions - August 16, 2012

Third Department Holds Divorce on Irretrievable Breakdown Grounds Is Not Another Action Pending for the Same Relief Where Other Action Is Based upon Cruel and Inhuman Treatment and Abandonment.

In Rinzler v Rinzler, --- N.Y.S.2d ----, 2012 WL 2849241 (N.Y.A.D. 3 Dept.), plaintiff commenced an action for divorce on the grounds of cruel and inhuman treatment and abandonment in 2009. Defendant answered and counterclaimed for spousal support arrears. In September 2010, after enactment of Domestic Relations Law § 170(7), plaintiff unsuccessfully sought defendant's consent to discontinue the action, presumably so that he could commence a new action based on the recently added no-fault ground. In March 2011, plaintiff commenced an action for divorce pursuant to Domestic Relations Law §170(7). Supreme Court granted Defendants motion to dismiss the action on the basis that there was "another action pending between the same parties for the same cause of action" (CPLR 3211[a][4] ).The Appellate Division reversed. It did not agree that the complaint in the second action alleged the same cause of action as the complaint in the first action. It observed that in determining whether two causes of action are the same, it considers "(1) [whether] both suits arise out of the same actionable wrong or series of wrongs[ ] and (2) as a practical matter, [whether] there [is] any good reason for two actions rather than one being brought in seeking the remedy". (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:15, at 29). Plaintiff's first complaint sought a divorce on the grounds of cruel and inhuman treatment and abandonment. To obtain a divorce on the ground of cruel and inhuman treatment, plaintiff was required to show that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.( Domestic Relations Law § 170[1] ). The other ground asserted by plaintiff in the first action required proof of the abandonment of the plaintiff by the defendant for a period of one or more years (Domestic Relations Law § 170[2] ). On the other hand, the complaint in the second action sought a no-fault divorce. Such relief requires a sworn declaration that the marriage was irretrievably broken for a period of at least six months (Domestic Relations Law § 170[7] ). In its view these causes of action were not the same. Turning to the second prong of the inquiry, as a practical matter, there was a good reason to allow plaintiff to maintain this action. As the Legislature noted, the intent of no-fault divorce was "to lessen the disputes that often arise between the parties and to mitigate the potential harm to them ... caused by the current process" Similarly, the Governor stated, in signing the legislation, that its intent was to "reduce litigation costs and ease the burden on the parties in what is inevitably a difficult and costly process.". Thus, allowing plaintiff to proceed on the cause of action for a no-fault divorce, which was not available to him at the time he commenced the first action, would not "unreasonably burden ... defendant with a series of suits emanating from a single wrong merely by basing each suit on a different theory of recovery". It rejected the defendant's contention that having previously commenced an action prior to the effective date of Domestic Relations Law § 170(7), plaintiff may not avail himself of the benefit of the no-fault provision by commencing a new action because it would contravene the Legislature's intent regarding the statute's effective date. Unlike the equitable distribution statute, which substantially expanded the economic rights of a spouse in a divorce the change created by Domestic Relations Law 170(7) simply provides another ground for obtaining a divorce . Thus, allowing plaintiff to maintain the new action for a no-fault divorce would not circumvent the Legislature's intent.

Important New Decisions - June 19, 2012 - Court of Appeals

Court of Appeals Holds That Family Court Lacks Authority to Direct Continuing Contact Between Parent and Child Once Parental Rights Have Been Terminated in a Contested Proceeding Pursuant to Social Services Law §384-b.

         In the Matter of Hailey ZZ., No. 103, NYLJ 1202558306160, at *1 (June 7, 2012) the Court of Appeals  resolved a conflict within the Appellate Divisions as to whether Family Court may direct continuing contact between parent and child once parental rights have been terminated in a contested proceeding pursuant to Social Services Law §384-b, and held that the Family Court lacks this authority.


 Court of Appeals Holds it Is Possible for a Parent with Custodial Rights to a Child to Be Guilty of Kidnaping That Child       

In People v Leonard, --- N.E.2d ----, 2012 WL 1946724 (N.Y.) the Court of Appeals held that it is possible for a parent who has custodial rights to a child to be guilty of kidnaping that child, and that it happened here, where defendant used his baby daughter as a hostage, threatening to kill her if the police approached him.

Important New Decisions - April 27, 2012

Decision to  Impose a Suny Cap on Cost of Child’s College Education must Be Determined on a Case-by-case Basis, Considering Parties' Means and Child's Educational Needs.


In Tishman v Bogatin,--- N.Y.S.2d ----, 2012 WL 1392995 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order which directed defendant to pay 40% of the cost of the parties' older child's college education. It held that the motion court properly rejected defendant's contention that a so-called SUNY cap should be imposed on his obligation to contribute to the costs of the child's college education-that is, that his contribution should be based on the cost of an education at a college in the State University of New York system, because plaintiff failed to show that the child's needs cannot be met adequately at a SUNY college. Whether to impose a SUNY cap is determined on a case-by-case basis, considering the parties' means and the child's educational needs. A rule that, absent unusual circumstances, a parent's obligation is limited to the maximum SUNY tuition would be inconsistent with Domestic  Relations Law  240(1-b)(c)(7), which provides that a court may award educational expenses where it determines, "having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires," that the education sought to be paid for is appropriate.   The record supported the court's direction that defendant pay 40% of the costs of the parties' older child's education at a private college. The child attended an elite public high school, his reasons for preferring the private college over SUNY schools were sound, both parties attended private college and private law school, and both parties had the resources to pay the tuition at the private college where the child was enrolled




Where Judgment Does Not Accurately Incorporate the Provisions of a Stipulation of Settlement the Stipulation Prevails
                                                      
In  Ayrovainen v Ayrovainen, --- N.Y.S.2d ----, 2012 WL 1322433 (N.Y.A.D. 2 Dept.) the  Appellate Division observed that when a party alleges that a judgment does not accurately incorporate the provisions of a stipulation of settlement, the preferred remedy is to move in the trial court to resettle or vacate the judgment, rather than to appeal. Nevertheless, this Court may address the issue and, upon examining the stipulation and the judgment appealed from in this matter, it found that the latter did not conform to the former in several key respects including: the percentage of the college expenses of the parties' children for which the defendant was responsible, the date upon which the defendant's obligation to maintain the former marital residence would cease, under what conditions the defendant's maintenance obligation would terminate, and the manner in which the parties would claim their youngest child as a tax exemption. In addition, the judgment conflicted with the stipulation with respect to the defendant's responsibility to maintain a life insurance policy with the plaintiff as a beneficiary, whether the parties agreed that there would be a cost of living increase for the defendant's child support obligation, and whether the defendant was to assist the plaintiff with a potential sale of certain real property located in Livingston Manor. It remitted the matter to the Supreme Court to issue a corrected judgment which accurately reflects the terms of the parties' stipulation entered on the record in open court. .


Supreme Court Permits Amendment of Complaint to Add Irretrievable Breakdown Ground under  DRL § 170 (7) Rejecting Strack and Schiffer Decisions                                                     


In Palermo v Palermo, 2011 WL 7711557 (N.Y.Sup.), 2011 N.Y. Slip Op. 52506(U), the couple were married in 1977. In September 2000, the wife moved out of the marital residence. In 2001, the wife commenced a divorce action against the husband on grounds of cruel and inhuman treatment and a jury returned a verdict of no cause for action. In February 2011, the wife again filed a verified complaint, this time on the grounds that the marital relationship had broken down for a period in excess of six months. The husband answered, denying the allegations, and asserting an affirmative defense that the couple had lived separate and apart for a period of at least 10 years. The husband moved to dismiss the wife's complaint, arguing that the statute of limitations had expired on her claims, that they were barred by res judicata, and that the complaint failed to state a cause of action. The wife cross-moved to replead the claim under DRL §  170(7) to include the specific allegation that the marriage was irretrievably broken for a period of greater than six months. Because amendments to pleadings at the early stages of litigation are widely favored, the motion to amend and serve the complaint was granted. CPLR  3025(b).  The Court held that the verified statement of "irretrievable breakdown" of a marriage, in itself, without a trial, provided the necessary predicate to granting a divorce under the Domestic Relations Law. It examined the history of New York’s no fault divorce law. It observed that in Gleason v. Gleason, 26 N.Y.2d 28 (1970) the Court of Appeals pointed out that the legislature recognized "that it is socially and morally undesirable to compel a couple whose marriage is dead to remain subject to its bond."  The Gleason decision is important to the current question because it recognizes that the state legislature could fashion divorce remedies based on both parties consent to end their marriage without further testimony or evidence as to their private intentions. In this case, the question was whether the state legislature provided the same relief-divorce-based on the intentions of just one of the two partners to the marriage, without any inquiry into their intent or conduct by enacting DRL 170(7). It pointed out that under this statute the legislature no longer requires evidence of the "mutual contemporaneous intention" as required by the two previous no-fault grounds. Under DRL  170(7), one partner alone can declare the marriage is "dead" if sworn to under oath, in accordance with the statutory language. While a strict reading of the statute suggests that the declaration alone provides the basis for a divorce, the husband contended that he was entitled to a trial on this provision relying on  Strack v. Strack, 31 Misc.2d 258 (Sup.Ct. Essex Cty.2011), where, citing the Domestic Relations Law provision for a right to trial by jury, the court concluded that te legislature failed to include anything in the Domestic Relations Law   170(7) to suggest that the grounds contained therein are exempt from this right  to trial. Had it intended to abolish the right to a trial for the grounds  contained in the Domestic Relations Law, it would explicitly have done so. The court concluded that the question of whether a breakdown is irretrievable is a question of fact to be determined at trial.  In view of the Strack decision, there was an apparent collision of the no-fault entitlement under DRL 170(7), and the trial right under DRL 173. The court  resolved the statutory contradiction in light of the history and object of the enactment, in light of the facts which were found by the legislature to prompt its enactment. Malkin v. Wilkins, 22 A.D.2d 497 (4th Dep't 1965).   The legislative history of New York's newest no-fault statute demonstrates the legislature's recognition of this "evil" and the proposed "remedy." It is apparent that the legislature intended to provide estranged couples a simple and incontestable basis for ending their marriage, and avoid the squabbling over issues that flow from the other objective grounds in DRL 170.   In view of this intent, the court declined to follow the logic or holding of Strack. The court concurred with  A.C. v. D.R., 32 Misc.3d 293 (Sup. Cty. Nassau Cty.2011) that there is "no defense to the no-fault grounds."    This court also considered the opinion in  Schiffer v. Schiffer, 33 Misc.3d 795 (Sup.Ct. Duchess Cty.2011), which followed the logic of Strack, holding that the no-fault assertion under DRL § 170(7) was subject to the trial requirement. This court finds little in Schiffer that differed from the analysis in Strack and declines to follow it. The Schiffer court suggested that what is required, as a matter of fact finding under DRL  170(7), is that the relationship be irretrievably broken and a statement under oath by the party seeking the divorce. However, there is no "and" connecting the sworn statement provision and the " "irretrievable breakdown for six months" assertion. The legislature used another connector: "provided." The use of this word-" "provided"-rather than "and" means that the "irretrievable breakdown for six months" must be accepted as true "provided" one party swears that it is true. The court in Schiffer also raised a "due process" argument, claiming that the courts should not deprive a spouse of the right to trial on irretrievable breakdown and that to hold otherwise reduces the court to a "rubber stamp" when presented with a claim under DRL  170(7). This suggestion ignores the Court of Appeals directive in Gleason:  [R]ights growing out of the [marriage] relationship may be modified or abolished  by the Legislature without violating the provisions of the Federal or State  Constitution which forbid the taking of life, liberty or property without due  process of law.    Gleason v. Gleason, 26 N.Y.2d 28 (1970); see also  A.C. v. D.R., 32 Misc.3d 293, 306 (Sup. Cty. Nassau Cty.2011) (reasserting compelling conclusion of Gleason that there is no due process right to any defense in matters involving the dissolution of marriages).For these reasons, this court declined to follow Schiffer. 
   For these reasons, the defendant's motion to dismiss the complaint, because it
failed to state a cause of action, was denied. The court also denied the motion to dismiss for violation of the statute of limitations. There is no statute of limitations under DRL s 170(7) because the cause of action only arises at the time the party swears that the marriage has been irretrievably broken for a period in excess of six months. A cause does not accrue until there is "a legal right" to be enforced.  Hahn Automotive v. Amer. Zurish Ins. Co., 81 AD3d 1331 (4th Dep't 2011). The cause of action for divorce on the basis of irretrievable breakdown accrues at the time of the attestation by one partner and not sooner. The statute of limitations has no pertinence to a cause of action that arises at the time of the filing of the complaint. Finally, the court denied the defendant's motion to dismiss based on res judicata. Res judicata does not preclude the claim under DRL 170(7) because it is based on a different theory and cause of action. The jury finding that no cause of action for cruel and inhuman treatment existed a decade ago only applies to the facts before the jury at that time. It does not preclude this claim for a divorce on the grounds that one party has sworn that the marriage has been irretrievably broken for a period of excess six months.






Supreme Court Permits Amendment of Complaint to Add Irretrievable Breakdown Ground under  DRL § 170(7) Even Though Amendment States That the Act  
Shall Apply to Matrimonial Actions Commenced after the Effective Date




In G.C v G.C.,  2012 WL 1292729 (N.Y.Sup.), 2012 N.Y. Slip Op. 50653(U) Supreme Court permitted an amendment to a divorce complaint to add new causes of action under the Domestic Relations Law which arose after the filing of the complaint. The plaintiff brought a divorce action prior to October 10, 2010. He alleged that his wife had engaged in cruel and inhuman treatment toward him. The wife answered the complaint, denying the specific allegations. After the commencement, the parties lived apart. The wife moved to Ohio. During discussions over the status of the case, the wife made it clear that she would contest the grounds for the divorce. The husband moved to amend the complaint to assert two new grounds: a ground under Domestic Relations Law § 170(2) for abandonment and a claim under Domestic Relations Law § 170(7) for an "irretrievably broken" marriage. The wife opposed the abandonment amendment, arguing that the husband can not allege abandonment when it occurred during a year after the filing of complaint and that its assertion, now, after the action has been pending for more than two years, is untimely and prejudicial. She opposed he amendment on the grounds of under Domestic Relations Law § 170(7) because the complaint was filed prior to the effective date of the change.
Supreme Court observed that amendments were both made pursuant to CPLR 3025(b), which provides that amendments should be freely given or a complaint may be supplemented "by setting forth additional or subsequent transactions or occurrences, at any time by leave of court."CPLR 3025(b). An avalanche of authority directs that the leave to amend a complaint should be "freely granted" unless the proposed amendment is clearly and patently insufficient on its face.  Williams v. Ludlow's Sand & Gravel Co., 122 A.D.2d 612 (4th Dep't 1986).  A cause of action under Domestic Relations Law s 170(2) requires  allegations that a spouse's actual physical departure from the marital residence for one year is unjustified, voluntary, without consent of the plaintiff spouse, and with the intention of the departing spouse not to return. The amended complaint, on its face, met this minimal pleading requirement: it alleged that the wife left the marital residence in 2009, has not returned and her leaving was
without justification. The pleading stated the cause of action.  Under the weight of cases favoring "freely granting" amendments to complaint, the cause of action for abandonment, although it accrued while this action had been pending, was properly pleaded and did not lack merit.
 The Court pointed out that in October, 2010, the Legislature added a statutory
change to the Domestic Relations Law which created "no-fault divorce" and permitted one party to be granted the divorce upon a sworn declaration that the marriage was "irretrievably broken for a period in excess of six months" and the parties had agreed on all the issues related to support and equitable distribution The wife correctly noted that the statutory amendment states that the "act ... shall apply to matrimonial actions commenced after the effective date."It was  undisputed that the effective date was October 12, 2010. The clear intention of the Legislature, based on this language, was to not allow litigants to simply
amend their complaints, after the amendment took effect, and allow those claims to proceed to adjudication on the basis of the new "no-fault" allegations by claiming that the six months of "irretrievable breakdown" included time before the effective date of the amendment.  Nevertheless, the court granted his motion noting that the husband was not seeking any relief other than that sought in the original complaint: a divorce and accompanying property distribution. By virtue of the statutory change, the husband, having waited six months after its effective date, could now meet the time requirement of six months because all of the time accrued after the amendment took effect. The court reasoned that the husbands motion did not violate the language of the statute or the intention of the Legislature. Instead, he sought to invoke what the Legislature extended to him: a cause of action that has ripened because more than six months have passed since the date of the amendment and during that time, the husband swears that his marriage has been irretrievably broken. It pointed out that in  Gleason v. Gleason, 26 N.Y.2d 28 (1970), the Court held that a statutory amendment, which added subdivision (4) to Section 170 of the Domestic  Relations Law, could be used to permit an uncontested divorce to incorporate a separation agreement signed before the effective date of the statutory change. The Court of Appeals, in resolving the issue of the application of a new ground for divorce to an agreement, signed before the effective date of new statute, could not ignore the beneficial aspect of the statute and its goal of reducing tensions in obtaining final judgments in matrimonial cases. In this case, the change created by the addition of Section 170(7) paralleled the statutory change in Gleason v. Gleason: it simply provides another ground for a divorce. The new statute does not create greater rights for a spouse in a divorce. The no-fault change provides a speedy method for establishing the grounds and does not obviate the wife's right to insist on a trial regarding any and all financial issues related to the couple. The new change gives neither party any greater property rights. For these reasons, the language of CPLR 3025(b), the lack of any prejudice to the wife's property rights and the judicial command to "freely grant" such applications weigh heavily in favor of granting this motion.  The motion to amend to add claims under Section 170(4) and 170(7) was granted.

Important New Decisions - April 23, 2012

First Department Holds Although Husband Retained All the Property, Court Will Not Set Aside Agreement on Ground of Unconscionability Where Inequitable Conduct Lacking    
                                              
          In Barocas v Barocas, --- N.Y.S.2d ----, 2012 WL 1293783 (N.Y.A.D. 1 Dept.) the Appellate Division rejected defendant's contention that the property division provisions of the parties prenuptial agreement were unconscionable. Defendant failed to establish that her execution of the agreement was the result of inequitable conduct on plaintiff's part. Rather, the parties fully disclosed their respective assets and net worth, and the agreement was reviewed by independent counsel, who defendant admitted had told her that the agreement was "completely unfair" and advised against signing it. The fact that plaintiff's attorney recommended defendant's counsel, and that plaintiff paid her counsel's fees, was insufficient to demonstrate duress or overreaching. Defendant's claim that she believed that there would be no wedding if she did not sign the agreement, that the wedding was only two weeks away and that wedding plans had been made, was insufficient to demonstrate duress. Although application of the provisions would result in plaintiff retaining essentially all the property, courts will not set aside an agreement on the ground of unconscionability where inequitable conduct was lacking and simply because, in retrospect, the agreement proves to be improvident or one-sided. The circumstances surrounding the execution of the agreement disclosed no issue of fact as to whether there was overreaching. It therefore adhered to the general rule that " '[i]f the execution of the agreement ... be fair, no further inquiry will be made' " (Levine v. Levine, 56 N.Y.2d 42, 47 [1982], citing  Christian, 42 N.Y.2d at 73).  Moreover, duly executed prenuptial agreements are accorded the same presumption of legality as any other contract" ( Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193 [2001] ). The majority disagreed with the dissent's conclusion that there was an issue of fact as to whether the property division provisions of the instant agreement are unconscionable. They observed that an unconscionable contract is one "which is so grossly unreasonable as to be unenforcible because of an absence of meaningful choice on part of one of the parties together with contract terms which are unreasonably favorable to the other party" ( King v. Fox, 7 NY3d 181, 191 [2006] ). Here, meaningful choice was not an issue inasmuch as defendant knowingly entered into the agreement against the advice of her counsel.
The majority also held that although defendant's waiver of spousal support was not unfair or unreasonable at the time she signed the agreement, given her knowing and voluntary execution thereof with benefit of counsel, factual issues existed as to whether the waiver would be unconscionable as applied to the present circumstances (Domestic Relations Law  236[B][3][3] ). A Child support award for the parties' two children had not been established, and it was unclear whether defendant would become a public charge without spousal support. It was also unclear whether waiver of all spousal support would result in inequality "so strong and manifest as to shock the conscience and confound the judgment of any [person] of common sense" ( Christian, 42 N.Y.2d at 71). The evidence showed that, despite the 15-year marriage, under the agreement, plaintiff would be entitled to retain property valued at about $4,600,000, while defendant would be entitled to only an IRA account valued at approximately $30,550. She claimed that she had no other assets or sources of income, and could no longer work, given that she was now 50 years old and that plaintiff had thwarted her efforts to get a college education and pursue a career during the marriage. Plaintiff, contends that defendant chose not to get a college degree or pursue a career, and that, while he supported her various business projects, the projects failed or she would quit after losing interest. The majority found that issues of fact existed as to whether the maintenance waiver would be unconscionable as applied to the current circumstances. Justices Freedman and Manzanet-Daniels dissented in part in separate memoranda.


Finding of neglect does not require actual injury but, rather, an imminent threat that such injury or impairment may result.      


          In Matter of Lamarcus E.,--- N.Y.S.2d ----, 2012 WL 1211389 (N.Y.A.D. 3 Dept.)  Respondent, the father of the child (born in 2002), was granted custody in 2008 in a contested proceeding against the child's mother. In August 2009, while under petitioner's supervision, respondent informed petitioner that he intended to relocate to Connecticut in October 2009 to obtain employment and live with his girlfriend, but that he would not be taking his then seven-year-old son with him. Petitioner rejected respondent's request to accept the child into a voluntary placement. After Family Court and petitioner rejected three different plans proposed by respondent for the future care of the child, petitioner filed a neglect petition against him alleging that he intended to imminently implement his plan to permanently relocate to Connecticut without the child and without any viable plan for the child's care. Upon receipt of the petition, the court immediately removed the child and placed him in the temporary custody of petitioner, and respondent relocated to Connecticut as planned. Following a fact-finding hearing, respondent, who remained living out of state, was found to have neglected the child and, after a dispositional hearing, the court continued the child's placement with petitioner in foster care. The Appellate Division affirmed.  It observed that a finding of neglect does not require actual injury but, rather, an imminent threat that such injury or impairment may result. In addition, the impairment "must be a consequence of the parent's failure to exercise a minimum degree of parental care" ( Matter of Afton C. [James C.], 17 NY3d at 9; Nicholson v. Scoppetta, 3 NY3d at 368, 370). Parental behavior, in turn, is evaluated by asking whether, under the circumstances, a reasonable and prudent parent would have so acted.   Family Court based its determination of neglect upon respondent's plan to effectively abandon the care and custody of his child which, absent the intervention of petitioner, the court found would "certainly" have led to the impairment of the child's physical, mental or emotional condition. Upon learning of his plan to leave his child behind without a viable caretaker, petitioner's caseworkers had multiple discussions with respondent regarding the child's future. One caseworker testified that, during these discussions, respondent told her that he did not want to take the child along because he was "too much to handle" and he did not want to be responsible for facilitating,  from Connecticut,  visitation with the child's mother; he persistently requested that the child be placed in foster care.   Significantly, although Family Court had previously ordered respondent not to relocate with the child out of state, he told a caseworker that he would not be taking his child with him even if granted the court's permission to do so and he did not file a petition to modify that restriction. While respondent implied in his brief that petitioner's refusal to permit him to voluntarily place his child in foster care is the basis for the neglect finding against him, a voluntary placement is appropriate only where a parent is unable to care for his or her child, and not where a parent is simply unwilling to do so, as here (see Social Services Law 384-a).  Respondent's knowledge that his child would be placed in foster care upon his refusal to take him to Connecticut, fully aware that this placement would result in a charge of neglect against him, reflected his clear intention to abdicate his parental obligations, including his responsibility to adequately plan for his child's needs, thereby placing the child at risk. Respondent's suggested alternatives to placing his child in foster care reflected a glaring and fundamental misunderstanding of his responsibilities as a parent.  Respondent's blatant unwillingness to provide proper care and supervision for his child placed the child in imminent danger of impairment. 


Supreme Court Holds Agreement Provision Prohibiting Divorce until Apartment Sold Violated Public Policy Governing Divorces in New York


          In Filstein v Bromberg, --- N.Y.S.2d ----, 2012 WL 1167458 (N.Y.Sup.) the parties were married in 1989. They parties purchased the marital residence, a three-bedroom condominium located on West 23rd Street in Manhattan ("the apartment") in 1998. In October 2007 the wife brought an action for separation. On February 15, 2008, the parties entered into the separation agreement that settled the wife's action for separation. The separation agreement, at Article IV, Paragraph 4(G), provides, in relevant part: “ Prior to the sale of the Apartment, (i) the parties' attorneys shall prepare a  package of documents for the parties and counsel to sign, pursuant to which the Husband will be able to obtain an uncontested divorce based upon the Wife's having abandoned the Husband more than one year prior to the commencement of this action; and (ii) neither party shall file any papers to obtain a judgment of divorce.” More than four years after the parties entered the separation agreement resolving the 2007 action for separation, the apartment remained unsold and the parties remained married. The husband commenced an action in March 2011 for divorce and for a declaratory judgment determining that the no-divorce clause of the separation agreement was unenforceable. The husband moved pursuant to CPLR 3212 for partial summary judgment on his cause of action for declaratory judgment. He argued that conditioning the ability to obtain a judgment of divorce on the parties' ability to sell the apartment violated public policy. The wife argued in opposition that the clause is an enforceable contractual provision and that striking it would amount to the court finding that there is an absolute right to divorce. The wife also argues that if the no-divorce clause is held to be unenforceable, then she is entitled to have the entire separation agreement invalidated. 
Supreme Court held that Article IV, Paragraph 4(G) of the parties' separation agreement violated public policy governing divorces in this state. In  Gleason v. Gleason, 26 N.Y.2d 28 (1970), the Court of Appeals laid out New York's public policy position: “Implicit in the statutory scheme is the legislative recognition that it is socially and morally undesirable to compel couples to a dead marriage to retain  an illusory and deceptive status and that the best interests not only of the  parties but of society itself will be furthered by enabling them "to extricate  themselves from a perpetual state of marital limbo."  He observed that in   P.B. v. L.B., 19 Misc.3d 186 (Sup Ct, 2008), the trial court applied the policy enunciated in the Gleason case to a party's challenge of a separation agreement clause preventing the husband from filing for divorce for five years after the parties signed the agreement. The court found that the clause was unenforceable, stating that "no waiver of a person's right to seek a divorce for longer than the statutory one year after execution of a separation agreement will be enforced by the court." Subsequently, another trial court found that a separation agreement preventing either spouse from commencing a divorce action for five years was void for the same reasons. Corso v. Corso, 21 Misc.3d 1102(A) (Sup Ct, 2008).  The husband's motion for partial summary judgment was granted.
Supreme Court rejected the wife’s argument that if the court strikes the provision, then it must strike the entire agreement. The agreement contained a severability clause. Case law makes clear that when a clause in a separation agreement is voided, it can be severed and the rest of the agreement may stand. The court found the rest of the agreement was valid and remained enforceable.


Supreme Court Holds That  Breach of the Collaborative Law Participation Agreement Does Not Require Finding That Husband Overreached During Collaborative Law Process.


           In H.K. v A. K., 2012 WL 1232970 (N.Y.Sup.), 2012 N.Y. Slip Op. 50639(U) (Table, Text in WESTLAW), Unreported Disposition, the parties were married in 1980 and had three children, two of whom were emancipated. They encountered marital problems and entered into a collaborative law process, each retaining attorneys experienced in collaborative law, and signed a participation agreement.  The participation agreement executed by the parties and their attorneys, on September 8, 2009,  stated that the collaborative process "relies on honesty, co-operation, integrity, and professionalism" and that the parties will deal in good faith and "shall provide all relevant and reasonable information" which includes "sworn statement of net worth and supporting documentation of their income, assets and debts ." The parties acknowledge that they are setting aside "certain procedures" including "formal discovery proceedings." To assist in handling the couple's complicated finances, the parties retained a financial specialist who also signed the agreement.  A lengthy collaborative process ensued. It was undisputed that the husband was in charge of the couple's finances. He had significant assets, traceable to his family, which provided the backbone of their income, and held senior titles in various real estate based entities. The wife was a part-time college professor. Once the collaborative process commenced, the husband provided significant financial disclosure. He averred, without contradiction, that he provided income tax returns, financial statements, and detailed financial records to the attorneys and the retained financial specialist. 
The couple signed a separation agreement on June 10, 2010. In it they acknowledged the role of the collaborative process, that they had "applied their individual standards of reasonableness and acceptability to the agreement," and that they believed the agreement "to be fair, just, adequate, and reasonable." In the final paragraphs, the parties acknowledged that they had full and complete discovery and they "unequivocally waive" any further disclosure. The attorneys oversaw the preparation of the agreement and notarized their respective clients' signatures.   
After signing the agreement, the wife learned from a third-party that the husband had a girlfriend and allegedly used marital funds to finance that relationship during the time he was negotiating the separation agreement. According to the wife, she raised this issue with her counsel and the attorney probed the husband on it. The wife alleged that the husband then refused to negotiate and was unwilling to fully disclose his involvement in the alleged relationship. When the issue boiled over, the wife changed counsel and the collaborative process ended. Shortly thereafter, this action was commenced and the competing motions for summary judgment were filed.
The wife argued that the husband breached the collaborative agreement and such a breach constituted fraud or overreaching under the principles established by the Court of Appeals in Christian v. Christian, 42 N.Y.2d 63 (1977). The wife argued that the husband breached the collaborative law agreement by misrepresenting the status of his EMA asset and requiring his wife to transfer it to their children's trusts. The wife's argument that the collaborative agreement sets a standard of conduct, which when breached by the husband constituted overreaching, was an issue of first impression in New York. The Court observed that the "collaborative law" process is a relatively new concept in matrimonial practice. New York courts have never considered its application. Collaborative law attempts to foster an amiable rather than an adversarial atmosphere by creating a "four-way" agreement between each party and their attorneys "in which all are expected to participate actively". The question of the scope of the participant's voluntary disclosure, which commentators have suggested is at the "hallmark" of the collaborative process, remains somewhat unsettled. A party can unilaterally terminate  collaborative law at any time and for any reason, including failure of another  party to produce requested information. Thus, if a party wishes to abandon collaborative law in favor of litigation for failure of voluntary disclosure,  the party is free to do so and to engage in any court sanctioned discovery that  might be available.   In this case, the wife did not terminate the process prior to executing the agreement, nor did either attorney. Only after the agreement was signed, when the wife was told that the husband had financed his relationship with his girlfriend, did the wife terminate. For most intents and purposes the process had already reached its goal: the separation agreement was signed. Under these circumstances, the court declined to consider whether the husband's alleged breach of the collaborative agreement would subject the husband to a finding of overreaching under Christian v. Christian. The Court pointed out that if the wife or her attorneys suspected the husband was guilty of overreaching, they could have discontinued the process, but they chose not to. The Court held that a breach of the participation agreement did not require a finding that the husband overreached during the collaborative law process.


In Valuing Wife’s Law Decree Any Reliable Analysis of the Wife's Potential Earning Capacity Had to Assume That If She Had Not Attended Law School, She Would Have Sought Employment Commensurate with Her Education and Bachelor's Degree.

          In Shea v Shea, --- N.Y.S.2d ----, 2012 WL 1124582 (N.Y.A.D. 3 Dept.) after the parties married in 1991, defendant (husband) completed his studies in psychology and obtained his Ph.D. degree. During the marriage, plaintiff (wife), in addition to having two children, attended law school and earned a law degree. After this divorce action was commenced in December 2006, the wife passed the bar exam and received her license to practice law. After a trial, Supreme Court awarded the husband $12,600, 10% of the value it placed on the wife's law degree. The court also directed the husband to pay $1,200 a month in child support and decreed that he owed $17,363.51 in child support arrears dating back to when the divorce action was commenced. In addition, the court denied applications by the wife that she be awarded a distributive share of the husband's Ph.D. degree, and by the husband that the wife be removed as custodian of bank accounts held in trust for their children. 
On appeal the husband challenged Supreme Court's decision which adopted the opinion offered by the wife's expert that placed the value on her law degree at $126,000. He argued that since his expert's analysis was based in large measure on the wife's actual employment history, that analysis was more reliable, and the value of $252,617.82 that his expert placed on the degree should have been adopted by the court. The Appellate Division observed that  in analyzing the value of the law degree, both experts compared what they believed the wife should have been able to earn during the relevant time period with and without a law degree and then factored the wife's work-life expectancy into the difference between these two figures to determine the extent to which the degree served to enhance her earning capacity. The principal difference in the evaluations offered by both experts revolved around what each believed the wife's earning capacity would have been had she not obtained a law degree. The wife's expert focused on her actual employment history, as well as statistical data on what an individual with a Bachelor's degree could have earned in the area where she lived during the relevant time period, and concluded that, without a law degree, the wife would have had an annual earning capacity of $44,500. The husband's expert arrived at a significantly lower figure primarily because of the emphasis he placed on the wife's actual employment history in the period prior to obtaining her law degree. He assumed in his analysis that the wife would not have entered the work force until 2006, or after she was admitted to practice law, and that she would have continued to work as a clerk throughout this entire period, even though before attending law school she had obtained a Bachelor's degree and had been accepted into a doctoral program at Indiana University. He concluded, given this history and based on these assumptions, that the wife's potential earning capacity, even with a Bachelor's degree, would not have exceeded $22,827 per year.  Supreme Court rejected the opinion of the husband's expert and concluded, as did the wife's expert, that any reliable analysis of the wife's potential earning capacity had to assume that if she had not attended law school, she would have sought employment commensurate with her education and Bachelor's degree. The Appellate Division found that the decision to adopt the opinion of the wife's expert as to the value of her law degree was supported by credible evidence introduced at trial.
The Appellate Division rejected the husbands argument that he was entitled to a greater degree of the value of the wife's law degree because he was the family's primary wage earner during the parties' marriage and arranged his work schedule so that he could care for their children while the wife attended law school. It  observed that a nontitled spouse seeking a portion of the enhanced earning potential attributable to a professional license or degree of a titled spouse is required to establish that a substantial contribution was made to the acquisition of the degree or license". Where only modest contributions are made by the nontitled spouse toward the other spouse's attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse's own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity". His sacrifices represented overall contributions to the marriage rather than an additional effort to support the wife in obtaining her license. In addition, the wife's own efforts in obtaining her law degree could not be minimized. For example, she worked in part-time positions throughout the marriage and was employed during the summer months while attending law school. She earned merit scholarships and paid a significant part of her law school tuition with an inheritance she received during the marriage. It reached a  similar conclusion as to the wife's claim that she should share in the value of the husband's Ph.D. degree. The husband had satisfied most of the requirements he needed to obtain this degree before the parties married and paid for it while providing financial support for his family. What assistance the wife may have provided in aiding him in acquiring this degree was simply not so significant or unique as to warrant awarding her a distributive share of its value.


Bonus Which Was Compensation for Future Services That Were Not Performed Prior to the Commencement of the Action  Was Separate Property Not Subject to Equitable Distribution


               In Ropiecki v Ropiecki, --- N.Y.S.2d ----, 2012 WL 1109179 (N.Y.A.D. 2 Dept.) the Appellate Division held that Supreme Court properly exercised its discretion in directing that the husbands maintenance obligations be retroactive to the date the action was commenced and properly awarded the defendant credit toward the maintenance arrears for voluntary payments he had made of $180,179.28. The defendant was not entitled to any further credit for voluntary payments, as the expenses from his net worth statement included payments made on behalf of himself and his emancipated children, payments for which the wife was not responsible (see  Horne v. Horne, 22 N.Y.2d 219, 224; LiGreci v. LiGreci, 87 AD3d 722, 724). The Appellate Division found that Supreme Court properly considered the relevant statutory factors in fashioning the distribution. The parties were married for 27 years, and the plaintiff's very limited earning potential was a result of her staying home and taking care of the parties' four children, including their daughter, who suffered from Retts Syndrome and was severely disabled. The defendant, by contrast, acquired considerable earning potential. Under the circumstances, the Supreme Court providently exercised its discretion in awarding the plaintiff 100% of the equity in the marital home. Similarly, the Supreme Court properly required the defendant to pay the remaining mortgage debt on the marital home in full before transferring title to the plaintiff. 
The Appellate Division agreed with the defendant that the Supreme Court improperly awarded the plaintiff a portion of his bonus in the sum of $200,000 as part of the equitable distribution of marital assets. The defendant's bonus, awarded in 2006, after the commencement of the action, was provided as an incentive for future services. Based on the defendant's testimony at trial, as well as the Executive Incentive Bonus Plan, the bonus plan was adopted by the defendant's employer in October 2006 as an incentive for certain employees, including the defendant, to meet certain goals and to ensure the successful sale of the company in the future. Accordingly, the bonus was compensation for future services that were not performed prior to the commencement of the action and, thus, was separate property not subject to equitable distribution. In light of the foregoing, the distributive award had to be reconsidered to ensure that the plaintiff was awarded her equitable share of the marital property, and the matter was remitted to Supreme Court for further review and a recalculation, if warranted, of the equitable distribution of marital property other than the marital residence.
The Appellate Division held that  under the circumstances of this case, including the monthly amount of the defendant's maintenance obligation and the ages of the parties, the $1,500,00 of life insurance the defendant was required to carry, as ordered by the Supreme Court, was excessive, and was reduced by substituting a provision directing the defendant to maintain a life insurance policy naming the plaintiff as an irrevocable beneficiary in the sum of $1,200,000 until the plaintiff reaches the age of 65, and in the sum of $600,000 thereafter for as long as the defendant is obligated to pay maintenance. It  also held that Supreme Court improvidently directed the defendant to pay 90% of the plaintiff's unreimbursed health care expenses, as such open-ended obligations have been consistently disfavored by the Court. It held that  Supreme Court should have directed the defendant to pay 90% of the plaintiff's unreimbursed health care expenses only for as long as he is obligated to pay maintenance.


Argument, That Child Should Have Attended  less Expensive College, Without Merit Where Parties Stipulation Did Not Require  Parental Consent to Child's College Choice, and Did Not Place Limit on  Tuition Amount 
          In Matter of Filosa v Donnelly, --- N.Y.S.2d ----, 2012 WL 1109332 (N.Y.A.D. 2 Dept.) the Appellate Division found that the father failed to establish, in accordance with the terms of the parties' stipulation of settlement of divorce, that he was financially unable to pay for the child's college tuition or that the mother did not comply with her obligation to encourage the child's use of financial aid, scholarships, and available student loans. Thus, Family Court did not improvidently exercise its discretion in granting the mother's petition and apportioning 50% of those expenses to him. It found his argument, that the child should have attended a less expensive college, without merit. The parties' stipulation did not mandate parental consent to the child's college choice, and it did not place a limit on the tuition amount for which the parties were responsible. Similarly, the father was not entitled to a credit toward his child support payment by virtue of the room-and-board component of the child's tuition, as no such credit was contemplated by the parties' stipulation of settlement.


Default must Be Vacated Once Movant Demonstrates Lack of Personal Jurisdiction, and  Movant Is Relieved of Obligation to Demonstrate a Reasonable Excuse for Default and  Meritorious Defense


          In Matter of Anna M, 940 N.Y.S.2d 121, 2012 N.Y. Slip Op. 01676 (2d Dept 2012) in an order dated October 24, 2008, the Family Court appointed the petitioner, the uncle of the subject children, as guardian of the children.   The father had failed to appear in these proceedings.   Almost two years later, the father moved, inter alia, to vacate the order of guardianship, arguing that the Family Court lacked personal jurisdiction over him.   The father argued, among other things, that he was not served with the order to show cause or petitions in this matter. In addition, his attorney argued that the affidavit of service stated that the father was served on September 28, 2008, which was a Sunday, rendering service void (see General Business Law  11). Family Court denied the father's motion without addressing the issue of personal jurisdiction. It found that the father had notice of the petitioner's request for guardianship but failed "to take action" and "explain his delay" in moving to vacate the order of guardianship and opposing the petitions.   The Family Court therefore determined that even if there was a defect in service," the doctrine of laches operated to bar the father from vacating the guardianship order.   The Appellate Division held that this was error.  CPLR 5015 provides that "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just," upon the ground of, inter alia, "excusable default" (CPLR 5015[a][1]) or "lack of jurisdiction to render the judgment or order" (CPLR 5015[a][4] ).   A court may not rule on  the excusable nature of a defendant's default under CPLR 5015(a)(1) without first determining the jurisdictional question under CPLR 5015(a)(4).   Where want of jurisdiction is the ground for a motion to vacate pursuant  to CPLR 5015, a default must be vacated once the movant demonstrates a lack of personal jurisdiction, and the movant is relieved of any obligation to demonstrate a reasonable excuse for the default and a potentially meritorious defense. Family Court failed to determine whether personal service was properly effected, or whether any defect in service could be disregarded as an irregularity under CPLR 2001 . The matter was remitted to the Family Court for a hearing to determine the issue of personal jurisdiction and thereafter for a new determination of the motion to vacate the order dated October 24, 2008.