Divorce: New York

Divorce: New York

Child Support Calculations and the Significant Other

Posted in Child Support (C.S.S.A.)
Planning the budget

Planning the budget

To what extent, if any, should the courts look to step-parents and significant others to support the children of their mates? What effect should the financial arrangements between a parent and his or her new significant other (married or not married) have on the calculation of child support obligations?

Consider the November 4, 2015 decision of the Appellate Division, Second Department, in Geller v. Geller. In this case a father had petitioned for a downward modification of his $930/week child support obligation when two of his four children were emancipated.

After a hearing, Nassau County Family Court Support Magistrate Elizabeth A. Bloom determined that the father was now only required to provide support for the two youngest children, and then recalculated each parent’s pro rata share of the basic child support obligation pursuant to the Child Support Standards Act. When doing so, Magistrate Bloom also imputed income to the father for the various bills paid by the father’s employer. She determined that the father’s pro rata share of the basic child support obligation was $447 per week.

However, Magistrate Bloom deemed this amount to be “unjust or inappropriate” in light of the financial support the father was receiving from his girlfriend. Based on that, Magistrate Bloom increased the father’s formula support obligation by more than 45% to $650 per week ($33,800 per year). The father filed objections to the Support Magistrate’s order. His objections were denied by Family Court Judge Ellen R. Greenberg.

Continue Reading

Double-Dipping: The Interrelationship of Business-Based Distributive Awards and Spousal Support

Posted in Equitable Distribution, Maintenance

For the second time in six weeks the Appellate Division, Third Department, reduced an award of spousal maintenance for the failure to adjust for the distributive award based on the husband’s business. In its October 22, 2015 decision in Gifford v. Gifford, the Appellate Division, Third Department, modified a maintenance award because of the trial court’s failure to adjust the husband’s income for computation purposes to account for the distributive award to the wife based on the husband’s business. In September, in Mula v. Mula, the Third Department held that once valued, the income attributable to ownership of a professional practice may not also be the basis on which to award spousal maintenance (see, the September 14, 2015 blog post).

In Gifford, the parties in this divorce had stipulated a resolution of Equitable Distribution issues, including a $210,000 award to the wife based on the value of the husband’s geotechnical engineer business. After a trial on maintenance on counsel fees, Supreme Court Justice Vincent J. Reilly awarded the wife nondurational maintenance of $6,000 per month from January 1, 2014 through January 31, 2020, $3,000 per month from February 1, 2020 through June 1, 2022, and $800 per month thereafter, terminating upon either party’s death or the wife’s remarriage.

The Third Department held that Justice Reilley erred in utilizing the husband’s total average annual income of $332,431 for purposes of calculating a maintenance award, without making an adjustment for the distributive award of the company.

Continue Reading

Court of Appeals Restates Civil Contempt Rules

Posted in Enforcement of Support and Orders

In its October 20, 2015 decision in El-Dehdan v. El-Dehdan, New York’s highest court restates the elements of civil contempt, the burdens of proof needed to support a finding, and the effect of the assertion of a Fifth Amendment privilege against incrimination. Doing so, the Court of Appeals affirmed a 2013 decision of the Appellate Division, Second Department, which in turn upheld the finding of civil contempt made by Kings County Supreme Court Justice Eric I. Prus.

In January 2010, an Order to Show Cause was signed to bring on the wife’s motion to hold the husband in contempt for having violated a 2008 order that supposedly restrained the transfer of assets. The husband had transferred certain parcels of realty. In addition to scheduling a hearing on the contempt motion, a Temporary Restraining Order was issued directing the husband to deposit immediately with the wife’s attorney the sum of $950,000.00 “which is the sum of money he purportedly received from the transfer of [the property] 171 Ainslie Street, Brooklyn, New York and 64-17 60th Road, Maspeth, New York, minus the money paid for [the] real estate broker, transfer taxes and payment of the underlying mortgage.” The husband was personally served with this Order to Show Cause.

As it turns out, the 2008 order did not, in fact, prohibit the transactions in which the husband engaged. However, here, the husband was not found in civil contempt for having violated the 2008 order, but for violating the Temporary Restraining Order contained in the January, 2010 Order to Show Cause that looked to preserve marital assets and the status quo while the court considered whether the husband violated the 2008 order.

Continue Reading

Failing To Give Default Notice Precludes Counsel Fee Award

Posted in Counsel Fees, Enforcement of Support and Orders

The wife’s failure to send notice of default as required by the parties’ divorce judgment resulted in no award of counsel fees on her enforcement application. So held the Appellate Division, Second Department, in its August, 2015 decision in Taormina v. Taorminareversing the wife’s $7,781.25 counsel fee award by Westchester Supreme Court Acting Justice Janet C. Malone.

The wife had sought an award of a counsel fee pursuant to the parties’ judgment of divorce in connection with the husband’s alleged defaults as to certain obligations set forth in that judgment. The judgment, however, required the nondefaulting party to give notice of alleged defaults by certified mail. It was undisputed that the wife did not give such notice. Accordingly, the wife was not entitled to an award of a counsel fee pursuant to the terms of the judgment.

Moreover, as the record did not reflect that the husband’s defaults were “willful” within the meaning of Domestic Relations Law §237(c), that statute did not provide a proper alternative basis for the award of a counsel fee to the wife. Therefore, Justice Malone erred in awarding the wife a counsel fee.

Rocco V. Salerno, Jr., of Eastchester, represented the husband. Helene M. Selznick, of Somers, represented the wife.

Making It Tougher To Deviate From Presumptive Formulas on Temporary Support Awards

Posted in Temporary (Pendente Lite) Relief

Going farther than simply holding that the lower court temporary support award was inadequate, the Appellate Division, Second Department, in its September, 2015, decision in Kaufman v. Kaufman, discussed the detailed decision necessary to deviate from presumptive temporary maintenance and child support formulas. Doing so, the court reversed the May 15, 2013 order of Supreme Court Justice Edward A. Maron and remanded the matter for new determinations. The appellate court also substantially increased the interim counsel fee award. Domestic Relations Law § 236(B)(5-a) [amended after this decision], sets forth formulas for courts to apply to the parties’ reported income in order to determine the presumptively correct amount of temporary maintenance. “In any decision made pursuant to that section, the lower court shall set forth the factors it considered and the reasons for its decision.” “[A] court may deviate from the presumptive award if that presumptive award is unjust or inappropriate.” Under such circumstances, the court must “set forth, in a written order, the amount of the unadjusted presumptive award of temporary maintenance, the factors it considered, and the reasons that the court adjusted the presumptive award of temporary maintenance.”

Additionally, when a court is unable to perform the needed calculations as a result of being “presented with insufficient evidence to determine gross income, the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the divorce action, whichever is greater” (Domestic Relations Law § 236[B][5-a][g]).

Continue Reading

9% Interest Rate on Equitable Distribution Payouts

Posted in Equitable Distribution

As there is no contrary statutory authority, the interest rate on a distributive award payout is 9%.

So held the Second Department in its October 7, 2015 decision in Cohen v. Cohen. In so holding, the appellate court modified the decision of Nassau County Supreme Court Justice Arthur M. Diamond that had directed that 5% interest be paid.

In this divorce action, the Second Department held that Justice Diamond providently exercised his discretion in finding that the wife was entitled to only a 25% share of the husband’s interest in his law firm. Furthermore, the appellate court upheld the lower court’s evaluation. Nothing in the testimony of the court-appointed appraiser undermined the conclusions in his report as to the proper valuation of the husband’s interest in the firm.

However, it was error to compute postjudgment interest on the wife’s share of the husband’s interest in his law firm at a rate of 5% per annum. Interest was awarded from the date of entry of the judgment of divorce.

Unless otherwise provided by statute, interest on a judgment is to be calculated at the statutory rate of 9% per annum. . . . Here, no applicable statute authorizes interest on the judgment other than at the statutory rate.

The Second Department also held that Justice Diamond erred when failing to award the wife a 50% share of so much of parties 2001 income tax refund as constituted marital property. This appears to have been calculated based upon the pre-commencement portion of the year in which the action was commenced (2001).

Victor Levin, P.C., of Garden City, represented the wife. Sol Barrocas and Allan Cohen, pro se, of Barrocas, Mintz, Misuraca & Record, P.C., of Garden City, represented the husband.

Maintenance and the Pentagenarian Spouse

Posted in Maintenance

The award of maintenance to the divorcing unemployed or under-employed spouse in his or her 50s may be one of the more challenging exercises of a judge’s discretion in a divorce action: too old to develop a lucrative career; too young to collect retirement assets built up over a lengthy marriage.

Although not exactly on point, in its September 30, 2015 decision in Brady v. Bounsing-Brady, the Second Department modified the maintenance award of Orange County Supreme Court Justice Debra J. Kiedaisch that had limited maintenance to 5 years at $1,733 per month. Instead, the appellate court extended the duration of maintenance to the earliest of the wife’s remarriage, her attainment of age 67, or the death of either party.

The 53-year-old wife had been disabled by a workplace injury since 1998. The parties had been married 14 years at date of commencement. The wife had been collecting $20,784 in yearly Social Security disability benefits and retirement disability benefits. (The Second Department held it was error for Justice Kiedaisch to impute another $9,216 in annual income to the wife.) By contrast, the husband was employed as a New York City firefighter earning in excess of $100,000 yearly.

The duration of maintenance is a matter committed to the sound discretion of the trial court and every case must be determined on its unique facts.

The factors to be considered in awarding maintenance include the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance.

Here, the Second Department held that Justice Kiedaisch had improvidently exercised her discretion when awarding the defendant maintenance for only 5 years.

The potential for 14 years of maintenance (plus retroactive support) after a 14-year marriage violates old rules of thumb (perhaps a third of the length of the marriage). It also is outside the presumptive range for an award under the new maintenance statute signed into law by Governor Cuomo on September 25, 2015 (D.R.L. §236[B][6][f]):

  • O up to and including 15 years: 15% – 30%
  • More than 15 up to and including 20 years: 30% – 40%
  • More than 20 years: 35% – 50%

Nonetheless, blind adherence to rules of thumb, or the new statutory range may not be appropriate for the non-monied 50-year-old divorcing spouse.

Robert M. Rametta, Esq., of Rametta & Rametta, LLC, of Goshen, represented the wife.

Double-Dipping: Using an Income Stream as Both an Asset and to Calculate Maintenance

Posted in Equitable Distribution, Maintenance

A professional practice is an asset which may be valued and equitably distributed in a divorce. Generally, that value is a function of the income generated by the practice after deducting reasonable compensation being paid to the professional. However, once valued, the income attributable to ownership of the practice may not also be the basis on which to award spousal maintenance.

Take the September 10, 2015 decision of the Appellate Division, Third Department, in Mula v. Mula. There, after 42 years of marriage, the husband commenced this action for a divorce. The wife counterclaimed for divorce and, by agreement, the parties were awarded mutual divorces on the grounds of irretrievable breakdown. During the marriage, the husband earned his C.P.A. license in 1981 and became the sole proprietor of an accounting practice in 1997. During the course of the marriage, the wife was primarily involved with the upkeep of the parties’ home and raising their three children.

Among other rulings, Ulster County Supreme Court Justice Anthony McGinty awarded the wife durational maintenance of $1,500 per month.

On appeal, the Third Department reduced this award to $1,000 per month, holding that Justice McGinty had double-counted the value of the husband’s professional practice. The lower court had valued the income generated by the practice as an asset and equitably distributed that asst. However, Justice McGinty also deemed the husband’s income to include the entire income generated by the practice when calculating the maintenance award to the wife.

The accounting practice was valued at $255,000. Apparently, the husband’s C.P.A. license was separately valued at $39,000.The husband contended on appeal that Justice McGinty had erred when calculating maintenance by failing to reduce his available income to reflect the court’s distributive award of his professional practice and license.

At issue is the rule against double counting, which provides that once a court converts a specific stream of income into an asset, that income may no longer be calculated into the maintenance formula and payout.

The husband’s solely-owned accounting firm was a service business for purposes of this rule.

Continue Reading

Father’s Visitation With Son Suspended, But Child Support Suspended As Well

Posted in Child Support (C.S.S.A.), Custody and Visitation

The father petitioned the Family Court for enforcement of his rights to visit with his 13-year old son. Alternatively, the father asked to suspend his child support obligation. Instead, Westchester County Family Court Judge Hal B. Greenwald granted the mother’s cross petition to modify the prior order of custody and visitation and suspended the father’s visitation with the subject child.

The Appellate Division, Second Department, modified that order by suspending the father’s child support obligation, affirming the suspension of all visitation in its September 2, 2015 decision in Matter of Coull v. Rottman.

In determining custody and visitation rights, the most important factor to be considered is the best interest of the child. Here, the evidence demonstrated that despite the fact that the child had participated in therapy for several months in an effort to foster a relationship with his father, the child remained vehemently opposed to any form of visitation with the father. Furthermore, while the express wishes of the child were not controlling, they were entitled to great weight, particularly where the child’s age and maturity would make his or her input particularly meaningful. Here, the appellate court held that the Judge Greenwald was entitled to place great weight on the child’s wishes, since he was mature enough to express them. Judge Greenwald’s finding that further attempts to compel the child, who was then 13 years old, to engage in visitation would be detrimental to the child’s emotional well being had a sound and substantial basis in the record and, thus, would not be disturbed.

However, contrary to Judge Greenwald’s conclusion, the evidence justified a suspension of the father’s obligation to make future child support payments. The forensic evaluator testified that there was a “pattern of alienation” resulting from the mother’s interference with a regular schedule of visitation. The evaluator was unable to complete her evaluation because the mother refused to consent to the evaluator’s request to speak with mental health providers or school officials, and the child did not appear for his interview.

Moreover, after the father’s last visit with the child, the father continued to go to the exchange location on visitation days for several months. On one occasion, the mother and child appeared, but the mother said the child would not come out of the car. On the other occasions, neither the mother nor the child appeared, nor did the mother communicate with the father. The father was never told about the child’s medical needs or that the child had been hospitalized until after the fact, nor was he advised of any information about the child’s school or school events.

Further, the record reflected that the mother, who represented herself before Judge Greenwald, assumed an inappropriately hostile stance toward the father and witnesses who testified in his favor. Judge Greenwald noted in its decision that the mother stated “many times, that she will never allow [the father] to see the subject child and that she would do whatever it takes to keep the subject child away” from him.

Robin D. Carton, of White Plains, N.Y., attorney for the child.

Son Awarded $5,000 Against Mother Who Failed To Turn Over Bar Mitzvah Gift

Posted in Miscellaneous Actions and Proceedings

In his August 25, 2015 decision in Zeidman v. Zeidman, Nassau County District Court Judge Scott Fairgrieve awarded $5,000 to 17-year old Jordan Zeidman who had sued his mother, Shirley Zeidman, for refusing to deliver Jordan’s Bar Mitzvah gift from his maternal grandmother that had been entrusted to his mother.

In 1998, Jordan’s parents were divorced. In their separation agreement, the parents stipulated that they would contribute pro rata to Jordan’s college fund. The mother had not made any such contributions and, in October, 2007, Jordan moved from his mother’s home because of their uneasy relationship. Mother and son had been estranged ever since.

Also in October, 2007, Jordan and his family celebrated his Bar Mitzvah at Zachary’s restaurant in Hempstead. Neither Jordan’s mother, nor his grandmother received an invitation to the party. The two “crashed” the party, but were not asked to leave.

Jordan claimed that at the celebration, his grandmother told him that she was going to give him $5,000 for his religious achievement. The grandmother supposedly gave the $5,000 to Jordan’s mother with the understanding that it would be delivered to Jordan. According to Jordan, his grandmother told him “I have $5,000 for you. Just like I gave to your brother and sister. And I’m going to give it to your mom to hold for you.” Jordan testified his mother never delivered the $5,000 to him.

At trial, Jordan submitted into evidence a document given to him by his father, ostensibly showing that his mother had acknowledged and received Jordan’s plaintiff’s $5,000 gift. The document was a bank confirmation statement of deposits that were made into Jordan’s college fund. The top of the document contained a handwritten statement which read, “I owe Jordan $190.00 + $5,000 from Baba” [the nickname by which the family referred to the grandmother].

On cross-examination, the mother testified that she didn’t recall writing the note, but that it could have been her handwriting. She denied receiving a $5,000 gift from her mother for Jordan’s benefit. Jordan testified that he was familiar with his mother’s handwriting because of the amount of time they spent living together, and the number of times he had seen her make numerous other writings.

The grandmother testified that she neither gave a $5,000 gift directly to Jordan, nor did she give the mother $5,000 to hold for Jordan’s benefit. However, the grandmother admitted to giving $5,000 gifts, in either cash or check form, to Jordan’s siblings for their Bar and Bat Mitzvahs.

Judge Fairgrieve found that Jordan had proven by clear and convincing evidence the elements necessary to establish an inter vivos gift:

  1. donative intent to make an irrevocable transfer of ownership;
  2. actual physical or constructive delivery of the property; and
  3. acceptance of the gift by the donee.

The evidence clearly established that Jordan’s grandmother came to his Bar Mitzvah with the intention of giving Jordan a $5,000 gift. The grandmother gave direct testimony attesting to the fact that she went to the plaintiff’s Bar Mitzvah, uninvited, with the intent to give him a gift with “all of her heart.” The grandmother had given $5,000 gifts to Jordan’s older siblings for their Bar and Bat Mitzvahs in the past. The bank document further supported that a gift was made. That evidence, coupled with the fact that Jordan and the grandmother shared a family relationship, convinced Judge Fairgrieve that the grandmother came to the Bar Mitzvah with the intention of giving the plaintiff a $5,000 gift. The evidence also demonstrated an irrevocable transfer of ownership: the mother received delivery of $5,000 as agent for Jordan in a fiduciary capacity.

Further, Jordan established by clear and convincing evidence that he received constructive delivery of the $5,000 gift. Delivery may be made to someone other than the donee to accomplish a gift. That third party represents the donee as agent, and there may be a valid delivery, even in circumstances where the donee does not have knowledge of the gift.

Here, there was valid delivery of the $5,000 gift made to Jordan. The mother was acting as agent for Jordan when she retained the gift. Moreover, the handwriting on the banking confirmation statement proved that the mother received the $5,000 gift as Jordan’s fiduciary-agent.

An agent who exercises dominion or control over the property “of his or her principal beyond the extent of the agent’s authority, with the intent to dispose of it so as to alter its condition or interference with the owner’s dominion is guilty of conversion.” Fundamental to an agent-principal relationship is that an agent owes a duty of loyalty to his or her principal, and is “prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties.” Thus, Jordan was entitled to recover based upon conversion because the mother failed to pay him the $5,000 to which he was entitled.

Moreover, Jordan was entitled to recover for unjust enrichment. The elements necessary to establish a cause of action for unjust enrichment are:

  1. the other party was enriched;
  2. at that party’s expense; and
  3. that it is against equity and good conscience to permit the other party to retain what is sought to be recovered.

Here, the evidence demonstrated that the mother would be unjustly enriched if permitted to retain the $5,000 gift.

Steven Cohn, P.C., of Carle Place, represented the son. Jeffrey S. Schecter & Associates, P.C., of Garden City, represented the mother.