Law Revision Commission Issues Maintenance Report

New York State Law Revision Commission Issues Final Report on Maintenance Awards in Divorce Proceedings on May 15, 2013 (Click here to download a copy of the Report)

Important New Decisions - May 15, 2013

Court of Appeals


Paternity - Defense of Equitable Estoppel - Applied to Deny Non-Biological Father Right to Deny Paternity


In Commissioner of Social Services on Behalf of Elizabeth S. v. Julio J., 20 N.Y.3d 995, 985 N.E.2d 127, 961 N.Y.S.2d 363 (2013) the Court of Appeals observed that before a party can be estopped from denying paternity or from obtaining a DNA test that may establish that he is not the child's biological parent, the court must be convinced that applying equitable estoppel is in the child's best interest (Matter of Shondel J. v Mark D., 7 NY3d 320 [2006]). The party seeking to prove paternity, whether by estoppel or otherwise, must do so by clear and convincing evidence. Although the Appellate Division stated that its reversal was on the law, that court, considering the same evidence as Family Court, made different factual findings to support its conclusion that the Commissioner of Social Services had not proven by clear and convincing evidence that respondent Julio J. should be estopped from denying paternity. Accordingly, the Court of Appeals reviewed the record to determine which set of findings more nearly comported with the weight of the evidence (see Matter of Jamie M., 63 NY2d 388, 393 [1984]), and concluded that the evidence more nearly comported with Family Court's findings that the child, who was eight years old at the time of the hearing, knows respondent, with his encouragement, as her father; that a relationship existed insofar as the child was concerned; and that the child relied on respondent to be her father sufficiently such that it would be to her detriment for the court to direct "DNA testing. Upon those findings, Family Court properly decided that respondent should be equitably estopped from asserting nonpaternity.



Appellate Division, First Department


Child Support - Award - CSSA - Shared Custody - First Department Rejects Rule Established in Baraby
That in an Equally Shared Custody Case the Parent Who Has the Greater Income Should Be Considered the Noncustodial Parent for Purposes of Support

In Rubin v. Salla,  --- N.Y.S.2d ----, 2013 WL 1681220 (N.Y.A.D. 1 Dept.)  the Appellate Division, First Department rejected the rule established in Baraby v Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3d Dept, 1998), that in an equally shared custody case the parent who has the greater income should be considered the noncustodial parent for purposes of support. It held, based on the plain language of the Child Support Standards Act, that a custodial parent cannot be directed to pay child support to a noncustodial parent, and that the  “custodial parent”, in an equally shared custody case, is “the parent who has the child the majority of the time, which is measured by the number of overnight time that parent has with the child.”  Inexplicably, the Court distinguished the decision in Baraby, although it appears to have rejected its holding entirely.

Plaintiff (mother) and defendant  ( father) were the unmarried parents of a 9–year–old son. The mother and father always lived  separately. In April 2009, the mother commenced an  action seeking sole legal and residential custody of the child, and an order compelling the father to pay child support. The father also sought primary custody of the child. After  trial, the court  awarded primary physical custody to the father during the school year, with the mother having parenting time on alternate weekends (from Friday after school to Monday morning) and every Thursday overnight. During the summer, the schedule was reversed and the child would live primarily with the mother, but would spend Thursday overnights and alternate weekends with the father. The mother would also have the child each midwinter school break, and the other school breaks were evenly divided. In addition, each parent was given two weeks with the child during the summer. With respect to legal custody, the court awarded the father decision-making authority, after consultation with the mother, over educational and medical issues. The mother was given authority, after consultation with the father, over decisions on summer and extracurricular activities, and religion.

Following the custody decision, the father moved for summary judgment dismissing the mother’s cause of action for child support. He argued that, by the terms of the custody order, he was the custodial parent because the child would spend the majority of the year with him. He argued that, as a matter of law, the court could not order him to pay child support to the mother, the noncustodial parent. The father’s motion included a calendar showing that during the period from July 2012 to June 2013 there were 206 overnights with the father and 159 with the mother. These custodial periods equated to the child being with the father 56% of the time and with the mother 44% of the time. The mother conceded that the child would reside with the father “most of the time,” that the father was the “de-facto custodial parent,” and that she may not be the “custodial parent” for purposes of the Child Support Standards Act (CSSA). She also agreed that under a “strict application” of the CSSA, the father could not be ordered to pay child support. Nevertheless, the mother argued that she was entitled to an award of child support because any other result would be unjust and inappropriate.

Supreme Court denied the father’s summary judgment motion, finding that an award of child support to the mother was not precluded because the parties had “parallel legal custody” of their son and both spent some time with the child, it was impossible to say, as a matter of law, that the father was the custodial parent for child support purposes. The court also focused on the disparity between the parents’ financial circumstances and concluded that, regardless of whether the father was the custodial parent, it had the discretion to award the mother child support because she needed funds to pay her monthly rent and to maintain the type of home she could not otherwise afford without the father’s assistance.

In reversing the order of the Supreme Court, Justice Richter, writing the opinion for the First Department,  held that under the current child support structure enacted by the Legislature, the father, as the custodial parent, cannot be directed to pay child support to the mother, the noncustodial parent. The CSSA provides for “a precisely articulated, three-step method for determining child support” awards in both Family Court and Supreme Court.  Unlike the discretionary system of the past, a court is required to make its child support award pursuant to the CSSA’s provisions. Under the CSSA’s plain language, only the noncustodial parent can be directed to pay child support. Domestic Relations Law § 240(1–b)(f)(10) and FCA § 413(1)(f)(10) state that, after performing the requisite calculations, “the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation.” The mandatory nature of the statutory language undeniably shows that the Legislature intended for the noncustodial parent to be the payer of child support and the custodial parent to be the recipient. The CSSA provides for no other option and vests the court with no discretion to order payment in the other direction.

Justice Richter observed that in Bast v. Rossoff,  91 N.Y.2d 723 (1998) the Court of Appeals addressed how child support awards should be calculated in cases involving shared custody. Contrary to the conclusion reached by the court below, Bast left no other option than to direct payment by the noncustodial parent to the custodial parent. The Court in Bast recognized that there are “practical challenges” in applying the CSSA to shared custodial arrangements. Nevertheless, Bast made clear that even in shared custody cases, courts are required to identify the “primary custodial parent”. Bast explained that “[i]n most instances, the court can determine the custodial parent for purposes of child support by identifying which parent has physical custody of the child for a majority of time”.

Justice Richter, referring to Baraby v Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3d Dept, 1998), pointed out that only where the parents’ custodial time is truly equal, such that neither parent has physical custody of the child a majority of time, have courts deemed the parent with the higher income to be the noncustodial parent for child support purposes. She noted that Courts have uniformly followed Bast, finding that where parents have unequal residential time with a child, the party with the greater amount of time is the custodial parent for CSSA purposes. The great disparity in overnights here—56% to 44%—stood in marked contrast to the cases cited by the mother where the parents had equal, or essentially equal, custodial time.

Justice Richter found that the Supreme Court ignored its own custody schedule when it stated that the parents here shared “very nearly equal” physical custody of the child. In an attempt to equalize the custodial time, the court focused on how much “waking, non-school time” the child spent with each parent. The Supreme Court suggested that a custodial parent could be identified by calculating the number of waking hours he or she spends with the child.  This approach was  rejected in Somerville v. Somerville,.5 AD3d 878 (3d Dept 2004).  She reached the same result here and rejected the counting of waking hours as a method of determining who is the custodial parent.

Although the Court in Bast did not elaborate on what constitutes a “majority of time,” Justice Richter believed that the number of overnights, not the number of waking hours, is the most practical and workable approach. She found that there are sound policy reasons why calculating the waking hours spent with each parent should not be the method used to determine who is the custodial parent. Allowing a parent to receive child support based on the number of daytime hours spent with the child bears no logical relation to the purpose behind child support awards, i.e., to assist a custodial parent in providing the child with shelter, food and clothing. Furthermore, because a child’s activities are subject to constant change, the number of hours spent with each parent becomes a moving target. The use of this type of counting approach could also lead parents to keep their children out of camp or other activities simply to manipulate their time spent with the child so as to ensure that they are designated the “custodial parent”. An hour-by-hour analysis of custodial time is just not workable and would run afoul of the “greater uniformity [and] predictability” the CSSA was designed to promote.

Justice Richter wrote that in finding that the father could be considered the noncustodial parent, the motion court improperly focused on the parties’ financial circumstances rather than their custodial status. Neither the CSSA, nor Bast v. Rossoff, allows for economic disparity to govern the determination of who is the custodial parent where the custodial time is not equal.  Moreover, there was no support for the mother’s argument that in shared custody cases, a court has the discretion to determine the custodial parent based on what is “just” and “appropriate.”


Child Support- Award - Imputed Income - Court May Impute Income Based upon  Value of His Employer-provided Apartment - Support Magistrate Properly Declined to Credit Respondent with "Extraordinary Expenses" in Connection with His Visitation with the Child.


In Matter of Perel v. Gonzalez, --- N.Y.S.2d ----, 2013 WL 1578227 (N.Y.A.D. 1 Dept.), the Appellate Division affirmed an order which denied respondent's objection to the Support Magistrate's imputation to him of income based on the full market value of his employer-provided apartment, and an order which denied his objections to the parts of the Support Magistrate's order of support that required him to pay child support in the amount of $476.49 per week, applied the child support percentage to the parties' combined income above the $130,000 statutory cap, and required respondent to pay his pro rata share of the child's private pre-kindergarten tuition. It held that the court correctly determined the parties' income for purposes of  calculating their basic child support obligations based on his 2008 annual gross income and the value of his employer-provided apartment and petitioner's income based on her 2008 annual gross income and her previous full-time employment as a concierge.

The Appellate Division held that the Support Magistrate properly declined to credit respondent with "extraordinary expenses" in connection with his visitation with the child. The Court of Appeals considered and expressly rejected any use in New York of the proportional offset formula in  Bast v. Rossoff (91 N.Y.2d 723, 728-730 [1998] ). Thus, it declined to follow  Matter of Carlino v. Carlino (277 A.D.2d 897 [4th Dept 2000]), as urged by respondent.

The Appellate Division rejected respondent's arguments that income may not be imputed to him based on the value of his employer-provided apartment because the value of lodging furnished to an employee pursuant to employment is excluded from income under the Internal Revenue Code (26 USC § 119[a] ), the Supremacy Clause of the United States Constitution requires the value to be excluded as income for child support purposes, and it is unconstitutional because it conflicts with the Internal Revenue Code. The Family Court Act provides that "at the discretion of the court,
the court may attribute or impute income from[ ] such other resources as may be available to the parent, including, but not limited to: ... lodging ... or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirec[t]ly confer personal economic benefits" (Family Court Act § 413[1][b][5][iv][B]. The record showed that respondent had a separate office in the same building, that he was not required to be on the premises after completing his 9 to 5 shift, that he used the apartment for his daily living activities, and that he was not restricted in any way in his use of the apartment.

           The record supported the Support Magistrate's finding that respondent consented to the enrollment of the child in a private pre-kindergarten school. He admitted that before enrolling the child in the school he and petitioner had looked at several other private schools. There was no evidence that the parties ever considered enrolling the child in a public pre-kindergarten program. Respondent did not sign the enrollment contract, but he was aware that petitioner had made a non-refundable deposit to reserve the child's place in February 2009.  It deferred to the Support Magistrate's finding that respondent's consistent denial that he ever consented to the child's enrollment in private school was "wholly incredible and self serving."


Appellate Division, Second Department



Child Custody - Visitation - Grandparent Visitation - Domestic Relations Law § 72 - Grandparent Visitation Order Reversed Where evidence in the record, and children's apprehension regarding visitation with grandmother, established that visitation was not in the best interests of the children.


In Matter of   Pinsky v. Botnick, --- N.Y.S.2d ----, 2013 WL 1442510 (N.Y.A.D. 2 Dept.) The mother, Estee Botnick married Jason Botnick on August 15, 1999, and there were four children of the marriage. On November 27, 2011, Jason passed away at the age of 35, at which time the children were ages 9, 7, 5, and 3, respectively. According to the mother, immediately prior to Jason's death, "[a]s the ICU team was literally trying to resuscitate Jason," the paternal grandmother, Janet Pinsky (grandmother), said to her, "We are going to have to make a schedule with the kids ."On January 3, 2012, the mother received a letter from the grandmother's attorney, threatening legal action if the mother did not permit the grandmother immediate visitation with the children, and requesting a response by noon the following day. The mother responded by inviting the grandmother over for a visit that evening. In a reply email, the grandmother asserted that her major concern was access to the children going forward, which the mother's email did not address, and requested that the mother respond to the grandmother's attorney as to when the mother or her legal representative could meet before the end of the week. Thereafter, the mother invited the grandmother to her home to visit with the children on January 8, 2012. Nevertheless, three days later, and approximately six weeks after Jason's death, the grandmother caused the mother to be served with the petition for visitation while the mother was at home with the children.

        At the hearing on the petition, the grandmother testified that she had a close relationship with the children. The grandmother also acknowledged that the mother was a fit parent. The mother testified that after she was served at home with the petition, the three older children, who were grieving the death of their father, became "hysterical" upon learning that the mother had to go to court. The mother testified that by initiating this proceeding, the grandmother had caused the three
older children to become fearful that the grandmother was going to take them away. She testified that the children needed time to get over their fears, and to "deal with the fact that their father has passed away."The attorney for the children informed the Family Court that the children did not wish to see their grandparents.  The Family Court accepted into evidence a report prepared by Peter J. Favaro, Ph.D., who was retained by the mother. In the report, Dr. Favaro opined, inter alia, that the children were experiencing symptoms common to "complicated bereavement." According to Dr. Favaro, the three older children had reported having bad dreams about seeing their grandmother and that she would take them away. He concluded that for the sake of the children's future relationship with the grandmother, "it would be unwise to have them pair thoughts of fear of seeing [her] with their father's passing," and that forcing an interaction would only strengthen their fears.

          In an order dated March 22, 2012, the Family Court, inter alia, granted the petition for visitation to the extent of awarding the grandmother three hours of visitation with the children every other Sunday commencing on June 3, 2012, as well as such other visitation as to which the parties shall agree. The court also directed the grandmother and the children to communicate daily via email until visitation commenced. On March 23, 2012, the same day the grandmother received a copy of the March 22, 2012, order, she sent an email to the mother informing her that she would be emailing the children daily starting that day, requesting that the mother direct the two older children to respond to the emails, and directing that either the mother or the two older children respond on behalf of the two younger children.

            In May 2012, the mother moved to modify the order dated March 22, 2012, so as to delay the commencement of visitation until October 14, 2012. In her supporting affidavit, the mother averred that prior to the date visitation was scheduled to   commence, the grandmother, without authorization, began attending the children's after-school and extracurricular activities. The mother stated that on one occasion, the grandmother showed up at one of the children's after-school activities and watched her through the windows of the gymnasium. The mother indicated that the child did not go to the bathroom because the grandmother was staring at her through the window next to the bathroom, and that the child had reported feeling "stalk[ed]." In addition, the mother asserted that the grandmother had contacted school officials and the children's coaches, and demanded inclusion on mailing lists relating to the children's schedules and activities. The mother maintained that the grandmother's conduct had caused the children distress, and had led to two of the children refusing to attend their little league baseball games. In a reply affidavit, the mother averred that on June 18, 2012, the grandmother and her husband showed up at the kindergarten graduation ceremony of one of the children, and, after the ceremony, each stood at opposite corners of the "party room" by the exit doors. The mother asserted that a security guard noticed what was happening, and escorted the mother and the child to a classroom where they remained during the party. In an order dated July 25, 2012, the Family Court denied the mother's motion.

The Appellate Division observed that a court determining a petition for grandparent visitation under Domestic Relations Law § 72(1), must undertake a two-part inquiry. First, it must determine whether the grandparent has standing to petition for visitation rights based on the death of a parent or equitable circumstances (see  Matter of E.S. v. P.D., 8 NY3d 150, 157). If the court concludes that the grandparent has established the right to be heard, then it must determine if visitation is in the best interests of the child (see  Matter of E.S. v. P.D., 8 NY3d at 157; Matter of Wilson v. McGlinchey, 2 NY3d 375, 380). The courts should not lightly intrude on the family relationship against a fit parent's wishes. It is strongly presumed that a fit parent's decisions are in the child's best interests. It held that the Family Court should have denied the grandmother's petition for visitation. The death of the children's father provided the grandmother with automatic standing to seek visitation (Domestic Relations Law § 72 [1]. Nevertheless, the Family Court improvidently exercised its discretion in granting the petition. The evidence in the record, including, inter alia, the mother's testimony, the report of Dr. Favaro, and the children's apprehension regarding visitation with the grandmother, established that visitation was not in the best interests of the children at the time the Family Court granted the petition.
                                                   

Pendente Lite Maintenance -  Domestic Relations Law § 236(b)(5-a) - Better for the Court to Proceed Sequentially in Accordance with the Statutory Procedure


In Goncalves v Goncalves, --- N.Y.S.2d ----, 2013 WL 1632072 (N.Y.A.D. 2 Dept.) the Appellate Division observed that Domestic Relations Law § 236B (5-a) sets forth the substantive and procedural requirements for an award of temporary maintenance, addressing both the amount and the duration of the temporary award.  Here, the Supreme Court performed the required calculations, but it did not
proceed sequentially through the statutory procedure. Instead, upon its consideration of all the relevant statutory factors, which it explained at length, the court awarded temporary maintenance to the wife that was significantly in excess of the amount that would have been yielded solely by application of the statutory formula. It held that although it would have been better for the court to proceed sequentially in accordance with the statutory procedure (see e.g. H.K. v. J.K., 32 Misc.3d 1226[A] ), the court's award of temporary maintenance was "appropriately supported and explained" ( Khaira v. Khaira, 93 AD3d 194, 201), and it declined to disturb it (cf.  Woodford v. Woodford, 100 AD3d 875, 877).


Equitable Distribution - Marital Residence - Proper to Award Wife Sole Ownership of Martial Residence Where, Inter Alia,, Supreme Court Noted That it Was Directing  Plaintiff to Convey His Interest in the Property in Lieu Of, Inter Alia, Maintenance and an Attorney's Fee.
 
                                                 
In Henery v Henery, --- N.Y.S.2d ----, 2013 WL 1632079 (N.Y.A.D. 2 Dept.) the Appellate Division found that contrary to the plaintiff's contention, the Supreme Court did not abdicate its responsibility by adopting the defendant's proposed findings of fact, particularly since the court edited them by deleting some of the proposed findings, which necessitated the court's revision of the proposed judgment submitted by the defendant.   In awarding the defendant sole ownership of the parties' marital residence, Supreme Court noted that it was directing the plaintiff to convey his interest in the property in lieu of, inter alia, maintenance and an attorney's fee. The court also noted that the mortgage on the marital residence had been satisfied by the defendant's parents, and that the expenses paid by the defendant, her financial sacrifices, her waiver of an attorney's fee, and the loss of retirement benefits resulting from the plaintiff's discharge for cause from a school administrative position, exceeded the plaintiff's share in the equity of the martial residence. It held that under the circumstances of this case, the Supreme Court providently exercised its discretion in awarding sole ownership of the marital residence to the defendant ( citing Ropiecki v. Ropiecki, 94 AD3d 734, 735; Mahon v. Mahon, 129 A.D.2d 684, 684;  Teabout v. Teabout, 269 A.D.2d 719, 721).


Child Support - Modification - UIFSA -  Family Ct Act § 580-611[a] [1] - Family Court Had Jurisdiction to Modify Pennsylvania Support Order, upon Registration


     In  Matter of Gowda v Reddy, --- N.Y.S.2d ----, 2013 WL 1632549 (N.Y.A.D. 2 Dept.) the Appellate Division noted that the Uniform Interstate Family Support Act ( UIFSA), codified in article 5-B of the Family Court Act, provides, in pertinent part, that a party seeking to modify and/or enforce a child support order issued in another state "shall register that order in this state" (Family Ct Act § 580-609). The support order governing the father's child support obligations, which was issued by the Court of Common Pleas of Montgomery County, Pennsylvania, and was effective beginning on June 3, 2004 was registered in the Family Court, Suffolk County, pursuant to UIFSA, on May 26, 2009. The Family Court had jurisdiction to modify the Pennsylvania support order, upon registration thereof, since none of the parties resided in Pennsylvania, the petitioner mother did not reside in New York, and the respondent father, at all relevant times, was subject to personal jurisdiction in Suffolk County (Family Ct Act § 580-611[a] [1] ). It held that the Family Court erred in calculating the father's child support
arrears to include the period prior to August 6, 2008, the date the mother's petition filed in Pennsylvania to modify the father's child support obligation set forth in the Pennsylvania support order was dismissed, upon the parties' stipulation, with prejudice. A stipulation of discontinuance with prejudice without reservation of right or limitation of the claims disposed of is entitled to preclusive effect under the doctrine of res judicata. Thus, to the extent this proceeding sought recovery of the same child support arrears that were sought in the Pennsylvania proceeding which was dismissed upon the parties' stipulation, with prejudice, it was barred by the doctrine of res
judicata.

                                                   
Arbitration  - Stipulation  Which Provides for Arbitration of  “ All Disputes Related to Matters Addressed in the Stipulation”  Is Enforceable Subject to Vacatur on Public Policy Grounds


       In Wieder v Wieder, --- N.Y.S.2d ----, 2013 WL 1632809 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order which granted the plaintiff's motion, in effect, to compel arbitration before a rabbinical court and to stay all proceedings in the action and in a related action entitled Wieder v. Wieder, while the arbitration was pending, and denied her cross motion to stay arbitration.    The parties' stipulation of settlement dated January 11, 2011, which was incorporated but not merged into their judgment of divorce dated January 24, 2011, provided that all disputes related to matters addressed in the stipulation would be subject to arbitration before a rabbinical court. Accordingly, the Supreme Court properly granted the plaintiff's motion, inter alia, in effect, to compel arbitration before a rabbinical court of the financial disputes between the parties and properly denied the defendant's cross motion to stay arbitration.  It observed that all financial issues, including the amount of child support, may be determined by an arbitration subject to vacatur on public policy grounds such as failure to comply with the Child Support Standards Act and not being in the best interests of the parties' children (see  Berg v. Berg, 85 AD3d 952, 953; Frieden v. Frieden, 22
AD3d 634, 635; Matter of Hirsch v. Hirsch, 4 AD3d 451, 452-453). Contrary to the defendant's contention, the determination as to whether the stipulation of settlement is unconscionable as a whole is for the arbitrator or arbitrators to decide (see  Tsadilas v. Providian Natl. Bank, 13 AD3d 190).



Supreme Court


Maintenance - Modification - DRL § 236(B)(9)(b) -Surviving Agreement - Downward - Extreme Hardship - Extreme Hardship Is Not Merely the Medical Consequence of a Maturing Life but its Plain Meaning Calls for a Substantial Dislocation of the Financial Circumstances So That the Litigant Is Nearly Without Resources or Shelter


In Long v Long,  2011 WL 10618898 (N.Y.Sup.), 2011 N.Y. Slip Op. 52549 (U) the retired plaintiff sought to modify his non-durational maintenance obligations to his now infirm and Medicaid-supported former spouse. He argued that he was enduring an "extreme hardship" from the continued enforcement of this longstanding obligation, and that circumstances have changed to justify a modification.  The parties' divorce decree was entered on July 9, 1987. In December 1985, the parties signed a separation agreement, which was subsequently incorporated but not merged into the decree. The husband agreed to pay non-durational maintenance payments of $160.00 per week until the wife remarried, and provide medical insurance for a five-year period following the divorce. He paid for more than 20 years.   The husband retired from full-time employment with New York State in October 1998, but continued to work part-time installing carpets. Recently, the husband has suspended his part-time employment because of health issues. A retirement pension and social security are now the husband's only sources of income. As the husband's second job income declined because of his own infirmities, his maintenance payments became sporadic. As of the filing of this application, $10,183 of unpaid maintenance obligations have accrued.

The wife, 72, was permanently disabled and resided at Monroe Community Hospital, where Medicaid would cover the costs of her care for the  foreseeable future. Because the wife was disabled and publicly-supported, the husband sought to modify his non-durational maintenance and either discontinue the payments or significantly reduce them. In a statement of net worth, prepared
by his accountant, the husband contended that "there has been a significant change in my financial circumstances and my financial ability to provide the support as ordered."The statement showed that the husband owns a $135,000 house encumbered  by a $126,448 mortgage. He had monthly income from his pension and social security totaling $5,470. In his monthly expenses, he listed the mortgage payment at $1,140. In addition, he has what appeared to be credit card charges and associated consumer debt totaling more than $1,500 monthly. There was no explanation in the statement
as to how the personal consumer-related debt accrued, but if this amount is deducted from his expenses, his monthly usual expenses were substantially less than his $5,470 income, and could easily accommodate the estimated $640 per month in maintenance payments to his wife.

          Supreme Court observed that modification of a maintenance obligation is permissible only when compliance with the order creates an "extreme hardship" for the obligated spouse. DRL § 236(B)(6)(a);  Pintus v.. Pintus 104 A.D.2d 866, 867-868 (2d Dept 1984). The party seeking modification bears the burden of proving extreme hardship. Pintus at 868.  DRL § 236(B)(6)(a). Soba v. Soba, 213 A.D.2d 472, 473 (2d Dept 1995). When assessing the merits for maintenance modification, the court must assess the cause of the hardship. Fendsack v. Fendsack, 290 A.D.2d 682, 684 (2d Dept 2002). Anticipated retirement alone, however, cannot be a catalyst for downward modification.  Id. at 684; Di Novo v. Robinson, 250 A.D.2d 898, 899 (3d Dept 1998) (voluntary actions resulting in a diminished income does not warrant downward modification of a maintenance obligation).  The husband voluntary retired from full-time employment in late 1998, but continued to work part-time until a back ailment forced a second retirement. There was no evidence before the Court on the amount of income lost to the husband as a consequence of his retirement from his second job. Nevertheless, in the absence of any data substantiating the loss of income due to his second retirement, modification of maintenance was improper. Due to the age of the husband and the physically demanding nature of installing carpets, eventual retirement from all employment must have been anticipated. Therefore, the Court was not concerned with the loss of income due to cessation of the husband's part-time employment for modification purposes. McKeown v. Woessner, 249 A.D.2d 396, 397-398 (2d Dept 1998). Moreover, the husband continued to enjoy sizable pension distributions, augmented by social security income. The Court also noted that a large portion of the husband's monthly expenditures were related to consumer credit counseling services, suggesting much of the husband's financial woes were self-inflicted. Kaplan v. Kaplan, 23 Misc.3d 1123A (Sup.Ct. Nassau Cty 2009) (self-imposed loss of income or increased debt does not constitute a severe hardship sufficient o justify a modification). Accordingly, it was difficult for this Court to see how the alleged fiscal crisis of the husband was relevant for maintenance modification purposes. Unpaid general creditors should not displace the former spouse in the hierarchy of the husband's payment obligations. It observed that "Extreme hardship is not merely the medical consequence of a maturing life but its plain meaning calls for a substantial dislocation of the financial circumstances so that the litigant is nearly without resources or shelter". For these reasons, the husband's stressed financial condition as contained in his application did not meet the test of an "extreme hardship" sufficient to justify a modification of his agreed maintenance obligation.



Family Court


Child Custody - Award - Standing - Family Court Holds That Domestic Partner, Having Succeeded in Having Petitioner Declared a Parent for Child Support Purposes Was Judicially Estopped From Asserting That Petitioner Was Not a Parent in this Custody-Visitation Proceeding.


In Matter of Estrellita A. v. Jennifer D., --- N.Y.S.2d ----, 2013 WL 1660674 (N.Y.Fam.Ct.) the parties registered as domestic partners in 2007. Thereafter, they decided to have a child and together went to North Shore University Hospital to choose a sperm donor. In February of 2008, respondent became pregnant by artificial insemination and as a result the child, Hannah Elizabeth A.-D., was born on November 23, 2008. Although there were discussions between the parties regarding petitioner adopting Hannah, no adoption was filed. In September of 2012 the parties stopped residing together.
On October 24, 2012 the respondent herein filed a Petition for an Order of Support of the child against Estrellita A. Ms. D. asserted in her petition that she and Ms. A. had a child in common, Hannah Elizabeth A.-D., born November 23, 2008. The biological father of the child was not legally established as the child was donor conceived. The Family Court was asked to rule upon whether Ms. A. should be declared a parent for the purposes of establishing a child support order. After a hearing it was established that Estrellita A. was a parent to Hannah A.-D. and petitioner was charged with support of the child.  

On January 10, 2013 the petitioner Estrellita A. filed a Petition for Custody of Hannah. The petition alleged that the respondent Jennifer D. was the biological mother, and that the child Hannah is their child in common. The petitioner further asserted that it would be in the child's best interest that she have custody as she is better suited to foster a relationship between the child and her biological mother. Respondent asserted that the custody petition must be dismissed as the Petitioner was not a "parent" for purposes of custody/ visitation under the Family Court Act  Article 6, Domestic Relations Law  § 70  and §240, and thus has no standing to bring this action. Ms. D. relied upon the rulings in two Court of Appeals cases,  Alison D. v. Virginia M ., 77 N.Y.2d 651, 572 N.E.2d 27, 569 N.Y.S.2d 586 (1991) and  Debra H. v. Janice R., 14 N.Y.3d 576, 930 N.E.2d 184, 904 N.Y.S.2d 363 (2010), Alison D. holding where, as here, the biological mother is a fit parent, that the court cannot displace her choices as to the child's best interest, including those with whom she allows the child to associate.

             The petitioner argued that she sought custody as a person who had already been adjudicated to be a parent of the subject child and was not asking the court to confer such standing by estoppel. The petitioner argued that she has standing per the "uncontroverted" facts that establish her as a parent to Hannah and asserts that the Court must allow the custody matter to proceed to a "best interests" hearing.   Family Court found that  in her own child support petition Respondent alleged  that she and the petitioner had "a child in common". She requested and received an estoppel hearing. At that hearing respondent testified, among other things, that petitioner not only performed as a parent, she was in fact a parent. The court relying on this testimony issued an order adjudicating petitioner to be a parent and referred the matter to a support magistrate for the entry of an appropriate child support order. Now, in a complete reversal, and in an effort to preclude petitioner from having her day in court, respondent now claimed that petitioner has no standing to bring a custody/ visitation proceeding because petitioner was not a parent. This is referred to as "inconsistent positions".  The Family Court observed that the  doctrine against inconsistent positions, or judicial estoppel precludes a party from assuming a position in a court proceeding contrary to one previously taken simply because his or her interests have changed ( Mukuralinda v. Kingombe, 100 A.D.3d 1431, 954 N.Y.S.2d 316 (4th Dept.2012). Respondent asserted in one proceeding that petitioner was a parent in order to secure a child support award. In the later custody proceeding she adopted a wholly contradictory position in an attempt to preclude the person from exercising any right or control with respect to that child. Having petitioned the court to recognize the petitioner as a parent, having testified that petitioner was in fact a parent and having prevailed in that matter, the respondent was judicially estopped in this custody/ visitation proceeding from asserting that petitioner was not a parent, and her motion to dismiss was denied.

Statement of Clients Rights Rule Amended effective April 15, 2013

Part 1210.1 of the Official Compilation of Codes Rules, and Regulations of the State of New York, containing the the Statement of Clients Rights that must be posted in every law office, was amended effective April 15, 2013. Part 1210.1 now provides:

　

STATEMENT OF CLIENT’S RIGHTS

　

1. You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and nonlawyer personnel in your lawyer’s office.

2. You are entitled to have your attorney handle your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to discharge your attorney and terminate the attorney-client relationship at any time. (Court approval may be required in some matters, and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge.)

3. You are entitled to your lawyer's independent professional judgment and undivided loyalty uncompromised by conflicts of interest.

4. You are entitled to be charged reasonable fees and expenses and to have your lawyer explain before or within a reasonable time after commencement of the representation how the fees and expenses will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill

from your attorney at reasonable intervals. You may refuse to enter into any arrangement for fees and expenses that you find unsatisfactory. In the event of a fee dispute, you may have the right to seek arbitration; your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon

your request.

5. You are entitled to have your questions and concerns addressed promptly and to receive a prompt rely to your letters, telephone calls, emails, faxes, and other communications.

6. You are entitled to be kept reasonably informed as to the status of your matter and are entitled to have your attorney promptly comply with your reasonable requests for information, including your requests for copies of papers relevant to the matter. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter and make informed decisions regarding the representation.

7. You are entitled to have your legitimate objectives respected by your attorney. In particular, the decision of whether to settle your matter is yours and not your lawyer’s.

Court approval of a settlement is required in some matters.)

8. You have the right to privacy in your communications with your lawyer and to have your confidential information preserved by your lawyer to the extent required by law.

9. You are entitled to have your attorney conduct himself or herself ethically in accordance with the New York Rules of Professional Conduct.

10. You may not be refused representation on the basis of race, creed, color, religion, sex, sexual orientation, age, national origin or disability.

Important New Decisions - December 29, 2012

Second Department Affirms Holding Setting Aside Post Nuptial Which Was Manifestly Unfair.

In Petracca v. Petracca, --- N.Y.S.2d ----, 2012 WL 6030894 (N.Y.A.D. 2 Dept.), the parties were married on December 16, 1995. In March 1996, the parties entered into a postnuptial agreement. The agreement provided that the jointly-owned marital residence, which had been purchased for approximately $3.1 million after the parties were married, and which was subsequently renovated at a cost of between $3 million and $5 million, was the defendant's separate property. It further provided that if the parties divorced, the plaintiff, who had not been employed other than as a homemaker since October 1995, would waive her interest in any business in which the defendant had an interest, including any appreciation in the value of such interests accruing during the marriage. At the time the agreement was entered into, the defendant valued his interests in these business entities at over $10 million. The plaintiff also waived any and all rights she had to the defendant's estate, including her right to an elective share. At the time the agreement was entered into, the defendant valued his net worth at more than $22 million. Finally, the agreement provided that if the parties divorced, the plaintiff would waive any right to maintenance except as provided in schedule "C" of the agreement, which indicated that the plaintiff could receive maintenance of between $24,000 and $36,000 per year, for varying lengths of time, depending on the duration of the marriage. The defendant's obligation to pay the limited maintenance enumerated in the agreement was contingent upon his receipt of certain visitation with any children that the parties might have, and upon certain residency requirements imposed upon the plaintiff.

In 2008, the plaintiff commenced this action for a divorce. In his answer, the defendant sought enforcement of the postnuptial agreement. A hearing was held at which both parties testified. The plaintiff testified that the defendant had presented the postnuptial agreement to her for signature days after her 42nd birthday, and shortly after she had suffered a miscarriage. She testified that the defendant had "bullied" her into signing the agreement by threatening that they would not have any children and that the marriage would be over if she did not consent to the postnuptial agreement. The plaintiff testified that she and the defendant had agreed to have children prior to the marriage, and that their agreement to have children had been an important factor in her decision to marry him. She signed the agreement within days of receiving it and, although she reviewed some portions of it, she did not understand its terms and did not consult an attorney. The plaintiff also adduced evidence demonstrating that the statement of the defendant's net worth contained in the agreement was inaccurate at the time it was made in that it was undervalued by at least $11 million.  When the defendant testified, he denied any knowledge of the plaintiff's miscarriage and stated that he had wanted the postnuptial agreement in order to protect his son from a prior marriage. The defendant testified that the parties had discussed the issue of entering into a postnuptial agreement prior to the marriage and that they had negotiated the postnuptial agreement over the course of many weeks. The defendant testified that his attorney had drafted the agreement and that he believed that the plaintiff had consulted with her own attorney, although she had not disclosed her attorney's name to him. The defendant explained that the marital residence had been purchased in both parties' names because the plaintiff said she wanted to have her name on it "for perception purposes, for other people," but that she had been willing to sign the agreement converting it into the defendant's separate property shortly after its purchase. In a decision made after the hearing, the Supreme Court expressed doubts as to the defendant's veracity and credited the plaintiff's testimony over conflicting portions of the defendant's testimony. The court found that the plaintiff had not been represented by counsel and had been precluded from effectively analyzing the financial impact of the postnuptial agreement due to the inaccuracies contained in the financial disclosures that had been incorporated into the agreement. The court determined that the terms of the agreement were "wholly unfair" and, after examining the totality of the circumstances, concluded that it was unenforceable. In a subsequent order, made upon the decision, the court granted the plaintiff's cross motion to set aside the postnuptial agreement.

The Appellate Division affirmed. It observed that in general, a postnuptial agreement which is regular on its face will be recognized and enforced by the courts in much the same manner as an ordinary contract. Because of the fiduciary relationship between spouses, postnuptial agreements "are closely scrutinized by the courts, and such agreements are more readily set aside in equity under circumstances that would be insufficient to nullify an ordinary contract. To warrant equity's intervention, no actual fraud need be shown, for relief will be granted if the [agreement] is manifestly unfair to a spouse because of the other's overreaching" ( Christian v. Christian, 42 N.Y.2d at 72-73). In determining whether a postnuptial agreement is invalid, "courts may look at the terms of the agreement to see if there is an inference, or even a negative inference, of overreaching in its execution. A spouse seeking to set aside a postnuptial agreement initially bears the burden to establish a fact-based, particularized inequality. Where this initial burden is satisfied, a proponent of a postnuptial agreement "suffers the shift in burden to disprove fraud or overreaching. Here, the plaintiff demonstrated that the terms of the postnuptial agreement were manifestly unfair given the nature and magnitude of the rights she waived, particularly the relinquishment of her property rights in the marital residence and her waiver of all of her inheritance rights, in light of the vast disparity in the parties' net worth and earnings. Inasmuch as the terms of the agreement were manifestly unfair to the plaintiff and were unfair when the agreement was executed, they give rise to an inference of overreaching. This inference of overreaching was bolstered by the evidence submitted by the plaintiff, including her testimony, regarding the circumstances which led her to give her assent to the postnuptial agreement. The defendant's testimony which tended to show that he did not engage in overreaching raised an issue of credibility, and it declined to disturb the Supreme Court's determination with respect thereto.

Court of Appeals Holds that  The Predicate for Admission of Tape Recordings in Evidence Is Clear and Convincing Proof That the Tapes Are Genuine and That They Have Not Been Altered



In Grucci v Grucci, --- N.E.2d ----, 2012 WL 5845008 (N.Y.), 2012 N.Y. Slip Op. 07856 Plaintiff Michael Grucci and defendant Christine Grucci were married in 1988 and had two children. In 1998, Christine sued Michael for divorce. A few months later, Michael was charged with harassing Christine, and the District Court issued an order of protection directing him to stay away from her. In January 2000, Michael was accused of violating the order. The matter was presented to a grand jury, which returned an indictment charging Michael with two counts of first-degree criminal contempt for placing Christine in fear of death or injury by telephone, and harassing her by repeated telephone calls with no purpose of legitimate communication (Penal Law § 215.51[b][iii], [iv], respectively). After a bench trial in August 2001, County Court acquitted Michael. The court concluded that Christine's testimony was not credible because of "discrepanc[ies]" in the way she described Michael's alleged threat to the police, the grand jury and at trial. In March 2002, Michael brought a civil action against Christine to recover damages for malicious prosecution. At trial Michael sought, through the testimony of his brother, Anthony Grucci, to play for the jury an audiotape of a telephone conversation in which Christine purportedly made clear to Anthony, at some point after she went to the police, that she was not afraid of Michael. Christine's attorney successfully objected, inter alia, to admission of the audiotape. Michael's attorney sought to play the audiotape during Anthony's testimony "as part of [his] presentation of [the telephone] conversation" with Christine that Anthony was recounting. Christine's attorney objected to the audiotape's admission on the grounds it was unreliable, "pieced together from a number of things" and "unintelligible"; that no chain of custody had been established; and generally that "no foundation [had been] laid for it at [that] point."In response, Michael's attorney offered only to have Anthony identify the voices on the tape and state "whether or not the tape recording [was] fair and accurate." When the judge asked if the tape had been authenticated, Michael's attorney responded "Not yet; this witness will authenticate."The judge then sustained the objection, and Michael's attorney stated that he had no further questions for Anthony.

The Court of Appeals affirmed. In an unsigned memorandum, it observed that while a party to a taped conversation can identify the speakers, "identity and authenticity are separate facets of the required foundation, both of which must be established" ( People v. Ely, 68 N.Y.2d 520, 528 [1986] ). The Court of Appeals stated: "The predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered" ( People v Ely, supra, at 522). Here, there was no attempt to offer proof about who recorded the conversation, how it was recorded (e.g., the equipment used) or the chain of custody during the nearly nine years that elapsed between early 2000, when the conversation allegedly took place, and the trial in late 2008. Given the facts and circumstances of this case, the judge did not abuse his discretion by requiring more than Anthony's representation that the tape was "fair and accurate" to establish a sufficient "predicate" before playing the tape for the jury.

 

Fourth Department Affirms Holding of Supreme Court that Where Complaint States a Cause of Action for a Divorce on the Ground of Irretrievable Breakdown There is No Right to a Trial.

In Palermo v Palermo, 35 Misc.3d 1211(A)950 N.Y.S.2d 724 (Sup Ct 2011), an action for a divorce, the Supreme Court denied the defendant's motion to dismiss the complaint for failure to state a cause of action. It held that the complaint stated a cause of action for a divorce on the ground of irretrievable breakdown, because a sworn statement by one partner that the marriage has been irretrievably broken for a period in excess of six months was set forth on the face of the amended pleadings, and complied with the language of the statute. Supreme Court held that it was not subject to the trial right under DRL § 173. The court also denied the motion to dismiss for violation of the statute of limitations. It held that there is no statute of limitations under DRL § 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.. 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. In Palermo v Palermo, 953 NYS2d 533 [4th Dept 2012], 2012 WL 5458608 (Mem), 2012 N.Y. Slip Op. 07528 2012 NY Slip Op 07528 the order of the Supreme Court was unanimously affirmed without costs for reasons stated in the decision at Supreme Court. (See Palermo v Palermo, 35 Misc.3d 1211(A), 950 N.Y.S.2d 724 )
 

Second Department Holds That Family Offense Proceeding Did Not Constitute a "Child Custody Proceeding" Within the Meaning of the UCCJEA Where it Did Not Raise an Issue of Legal Custody, Physical Custody, or Visitation with Respect to the Children

In Matter of Hassan v. Silva, --- N.Y.S.2d ----, 2012 WL 5503641 (N.Y.A.D. 2 Dept.) the father appealed from orders of the Family Court as, upon finding that the Court of Common Pleas, Monroe County, Pennsylvania, was the more appropriate forum for the father to seek custody of the subject children, or obtain any other related relief, declined jurisdiction over the matters and dismissed his child custody and family offense petitions upon the ground that New York is an inconvenient forum. The Appellate Division pointed out that a court of this state which has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, may decline to exercise it if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum (Domestic Relations Law §76-f[1]) The factors to be considered in making this determination include the length of time the child has resided outside the state, the distance between the court in this state and the court in the state or country that would assume jurisdiction, the nature and location of the evidence required to resolve the pending litigation, the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence, and the familiarity of the court of each state with the facts and issues in the pending litigation (Domestic Relations Law § 76-f[2]). Family Court providently exercised its discretion in adhering to so much of its original determination as declined jurisdiction over the father's custody petitions and dismissed those petitions on the ground that New York is an inconvenient forum. The children, who were now five and three years old, lived in Pennsylvania since August 2010 with the father's permission and, therefore, evidence regarding their care, well-being, and personal relationships was more readily available in Pennsylvania. There was no evidence that the children retained substantial connections with New York or that significant evidence was in this State. The Court of Common Pleas, Monroe County, Pennsylvania, was familiar with the family and the pending issues, having issued a final order of protection against the father in favor of the mother and children and an interim custody order in the mother's custody proceeding. Furthermore, the travel time between the courts was only 2 ½ hours, and the Pennsylvania court is willing to exercise jurisdiction. Accordingly, the Family Court properly determined that the Pennsylvania court was a more appropriate forum to determine the issues of custody and visitation.

However, the father's family offense proceeding did not constitute a "child custody proceeding" within the meaning of the UCCJEA since it did not raise an issue of legal custody, physical custody, or visitation with respect to the children (Domestic Relations Law §75-a[4] ). Accordingly, the Family Court erred in dismissing it pursuant to Domestic Relations Law 76-f. All of the acts complained of in the petition occurred in New York (Family Ct Act § 818).

 

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.