Divorce: New York

Divorce: New York

Relocation Clauses Must Specify Radial or Road Mileage

Posted in Custody and Visitation

It is common for divorce settlements and custody agreements to contain “relocation clauses.” These provisions spell out the radius within which the residential custodian will be able to move without first seeking judicial approval. It is a proper subject of agreement between parents. It will almost always be honored, although such a provision can never be binding upon a court’s determination of what is in the best interests of a child.

Such a clause might read:

The parents have established their custody and visitation arrangement to reflect what they believe constitutes the best arrangements to meet their child’s needs to have a continuing and close relationship with both parties. The parties recognize that an arrangement that provided for less contact between the child and each of the parties would not be in the child’s best interests. Based upon the foregoing, the residential custodial parent agrees that prior to the emancipation of the child, he/she will not establish a domicile with the child at any point beyond ____________ miles of _______________.

That distance is often referred to as the “radius.” Relocation clauses must be careful to specify whether the radius is in road miles or “as the crow flies” (radial miles).

In actuality, the concept is one of time, not distance. A parenting schedule is constructed assuming that it will take a certain amount of time for the child to be transported from the residence of the physical custodian to that of the other parent. The parents’ agreement should contemplate the distance between homes as it may relate to dropping a child off at school on a Monday morning, allowing for mid-week visits, etc. Thus, a radius clause that allows for 50 road miles near the Thruway in upstate New York contemplates something very different than 50 road miles on Long Island. The latter trip might take twice as long.

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Father Must Assist With Obtaining Renewal Passport for 10-Year Old Daughter

Posted in Custody and Visitation

A father has been directed to cooperate in obtaining a renewed passport for his now 10-year old daughter. Reversing the order of New York County Family Court Referee Marva A. Burnett in its December 11, 2014 decision in Matter of Noella Lum B. v. Kristopher T.R., the Appellate Division, First Department, directed the father to execute all documents necessary to obtain the renewal passport.

The parenting agreement entered into between the parents in 2007 provided for residential custody to the mother and visitation to the father. The agreement contemplated “air travel” by the child with one parent. It did not prohibit either party from traveling outside of the United States with the child.

The mother previously had traveled internationally with the child, both before and after the parties’ separation, until the child’s passport expired in 2009.

Although the parenting agreement required the parties to execute all documents that may be necessary to give its provisions full force and effect, the father refused to execute documents necessary for the renewal of the child’s United States passport. The mother petitioned the Family Court to compel the father’s cooperation.

Reviewing the evidence at the hearing before Referee Burnett, the First Department held the father failed to demonstrate that there had been a significant change in circumstances warranting modification of the agreement to prohibit international travel. Although the father claimed that relations with the mother had deteriorated and that he feared she would abscond with the child, he acknowledged that the mother had complied with all aspects of the parenting agreement. Moreover, the mother had never threatened to take the child, and had returned from all prior trips with the child, which she had taken with the father’s knowledge and consent, in a timely manner and without incident. Still further, although the father asserted that the mother had family living abroad (which had always been the case), the mother is a citizen of the United States and has significant family connections here.

Indeed, the father characterized the risk of the mother absconding with the child as remote or a 1% chance, and did not object to the child traveling abroad when she turned 12, which would occur three years after the hearing. Moreover, although Referee Burnett’s credibility determinations were entitled to “great deference,” in this case, the Referee’s determination that the mother posed a flight risk based upon, among other things, her two prior applications for relocation, which were made pursuant to the agreement, lacked “a sound and substantial evidentiary basis.” The evidence did not support the Referee’s finding that the mother would permanently remove the child from the country if she obtained the requested passport. (The appellate court further noted that the attorney for the child has at all times supported the mother’s application.)

For a prior discussion and links to forms, see, Passports and International Travel for Children of Divorce.

Madeleine Nisonoff, Esq., of Mallow, Konstam, Mazur, Bocketti & Nisonoff, P.C., of Manhattan, represented the mother. Karen Freedman, Lawyers for Children, Inc., (Shirim Nothenberg of counsel), served as Attorney for the Child.

Divorce Settlements: It’s Not Just What You Say, But What You Don’t Say

Posted in Agreements and Stipulations, Child Support (C.S.S.A.)

It is often said that it is difficult, if not impossible to prove a negative. The concept may be extended to finding the intent of the parties to a contract, and more particularly a divorce settlement agreement

One would think a divorce settlement agreement would provide for all of the rights and obligations of a divorcing couple arising from their marriage, children, and divorce. So what happens when a subject is not specifically covered? If the agreement does not state that a specific child support-related expense is to be paid by the non-custodial parent, does that mean that that parent does not have such an obligation? Is an agreement required to specifically provide that any obligation not specifically stated does not exist?

Take the November 26, 2014 decision of the Appellate Division, Third Department, in Malone v. Malone. In that case, the Third Department upheld the denial of an ex-wife’s requested upward modification of the ex-husband’s child support because the underlying divorce settlement agreements were not unfair or inequitable when entered into; there was no proof the children’s needs were not being met (pardon the double negative); and there was no other basis for an upward modification. Doing so the Third Department affirmed the holding of Rensselaer County Supreme Court Acting Justice Peter A. Lynch.

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Temporary Maintenance All But Denied to Wife Able to Work and Who Had Lived With Another Man

Posted in Temporary (Pendente Lite) Relief

Is a wife entitled to formula temporary maintenance in a divorce action, merely because she is the less-monied spouse? No, says New York County Supreme Court Justice Matthew F. Cooper in his October 22, 2014 decision in Joseph M. v. Lauren J.

In this matrimonial action, the wife sought temporary custody of the parties’ child, as well as an order awarding her pendente lite maintenance, child support, and counsel fees. Although the custody applications were premature, the financial issues were ripe for determination.

In many ways, this case highlights the tension that exists when imposing a statutorily prescribed formula for awarding temporary maintenance on a determination that has traditionally been left to the sound discretion of a court.

The parties were married in 1997 and had one child, a daughter, born in 2009. The couple separated eight months after the child’s birth when, in May 2010, the wife left the marital residence in Yonkers to live with a man with whom she had been involved since before the pregnancy. The wife continued to reside with this man and was largely supported by him for almost four years. They recently stopped living together because their church objected to them continuing to cohabit while she was still married to the husband. As a result, the wife had been living for the last few months in a hostel in upper Manhattan.

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Another Prenup Bites the Dust, Maybe

Posted in Agreements and Stipulations

The November 12, 2014 decision of the Appellate Division, Second Department, in Bibeau v. Sudick reversed the granting of summary judgment upholding the validity a 2000 prenuptial agreement, remanding the matter for a hearing on that issue.

In September 28, 2000, two days before their wedding, the 70-year old future husband and the 38-year old future wife executed a premarital agreement. It provided that in the event of a divorce, the wife would receive, in lieu of maintenance, support, and equitable distribution, the sum of $25,000 for each year of the marriage. The parties also agreed to waive their interest in the elective share of each other’s estate, and to make no claim to property titled in the other’s name.

According to financial statements attached to the premarital agreement, the future husband had assets of more than $10,000,000, while the future wife had assets of approximately $170,000. The agreement was signed in the office of the husband’s attorney, in the presence of another attorney who was purportedly representing the wife.

At the time of the marriage, the wife, who had a background in marketing works of fine art to corporations, had recently opened an art gallery in California. She closed this business and relocated to Pine Bush, New York, in order to reside with the husband in preparation for their marriage, and assist him in his business endeavors. These included real estate development, as well as breeding thoroughbred horses and managing polo ponies.

In October, 2010, within days of New York’s adoption of no-fault divorce, the husband commenced this action for divorce. There were no children of the marriage.

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Appellate Reversals of Custody Decisions

Posted in Custody and Visitation

Two of three November 5, 2014 custody decisions of the Appellate Division, Second Department, reversed Family Court determinations.

In the only affirmance in Mondschein v. Mondschein, the Second Department upheld the order of Westchester County Family Court Judge David Klein which, after a hearing, granted a father’s petition to modify the custody provisions of the parties’ divorce (2011) stipulation of settlement, awarding the father sole legal and physical custody of the parties’ two younger children, with supervised visitation to the mother. Affirming Judge Klein, the Second Department noted:

Since custody determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the Family Court’s findings. Therefore, its findings should not be set aside unless they lack a sound and substantial basis in the record.

Here, contrary to the mother’s contention, the appellate court found that Judge Klein had properly considered the totality of the circumstances, and that the record supported his determination that there had been a sufficient change in circumstances requiring a change in custody to protect the best interests of the parties’ two younger children. That record included the hearing testimony and the recommendation of the court-appointed forensic evaluator.

In Burke v. Cogan, the Second Department reversed the determination of Suffolk County Family Court Judge Martha Luft that had dismissed the petition of a mother to modify a prior custody order by awarding her sole residential custody of the parties’ 13 year-old child. The appellate court awarded the mother such custody.

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A Party’s Sworn Statement Of Irretrievable Breakdown Is Incontestable: The First Department Weighs In

Posted in No-fault (irretrievable breakdown)

In its October 30, 2014 decision in Hoffer-Adou v. Adou, the Appellate Division, First Department, affirmed the granting of summary judgment awarding a no-fault divorce solely upon the plaintiff’s (here the wife) sworn statement. That award had been made below by Supreme Court, New York County Justice Deborah A. Kaplan.

In so holding the First Department joined the Fourth Department in holding that whether there has been an irretrievable breakdown is purely subjective. In a decision issued November 9, 2012 in Palermo v. Palermo, the Fourth Department (December 13, 2012 blog post) had affirmed a decision of Monroe County Supreme Court Justice Richard A. Dollinger (January 30, 2012 blog post) for the reasons stated in Justice Dollinger’s opinion: a party’s sworn statement of irretrievable breakdown is incontestable. It is not subject to attack at trial.

The First Department, here, held:

Contrary to the husband’s contention, the wife was entitled to a judgment of divorce under the no-fault provision of DRL § 170(7), since her statement under oath that the marriage was irretrievably broken for a period of six months was sufficient to establish her cause of action for divorce as a matter of law.

However, as noted in prior blog posts, the subject has not been without debate. Two decisions of the Nassau County Supreme Court, Townes v. Coker (relied upon by the First Department and discussed in the blog post of February, 20, 2012), and A.C. v. D.R. (discussed in the April 4, 2011 post), both held that New York’s new no-fault ground was purely subjective.

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Attacking Open-Court Divorce Stipulations: Is There a Double Standard?

Posted in Agreements and Stipulations

In its October 22, 2014 decision, the Appellate Division Second Department in Ebel v. Ebel  upheld an open-court divorce settlement stipulation against the attack of the wife.

In his June, 2012 determination of the lower court, then Supreme Court Suffolk County Justice Hector D. LaSalle (now himself an Associate Justice on the Appellate Division Second Department) had rejected the argument of the wife that her emotional state prevented her from entering that May, 2011 settlement stipulation knowingly, voluntarily and intelligently.

On appeal, the Second Department first noted that the wife’s contention that the terms of the parties’ stipulation of settlement were unconscionable was not properly raised on appeal, as it was not raised at the trial level.

The wife’s additional contention on appeal that the stipulation should have been vacated because it did not address, and she did not waive her claims regarding, certain financial issues was also found to be without without merit.

The Second Department noted that stipulations of settlement are favored by the courts and are not lightly cast aside, particularly when the parties are represented by attorneys.

Where, as here, the record demonstrates that the parties validly entered into a comprehensive open-court stipulation by which the plaintiff knowingly, voluntarily, and intelligently agreed to be bound, the agreement will not be set aside.

Here, the terms of the parties’ agreement, including issues of financial support and equitable distribution of the marital residence, were placed on the record in what the Justice LaSalle characterized as a “global stipulation of settlement.” Moreover, the wife’s counsel affirmatively waived all other equitable distribution matters and withdrew all outstanding requests for relief.

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It Just Became Tougher To Validate Prenuptial Agreements

Posted in Agreements and Stipulations, Temporary (Pendente Lite) Relief

The Second Department seems to have taken another bite out of prenuptial agreements. My March 25, 2013 post asked, Is it Open Season on Prenuptial Agreements? That post discussed the Second Department’s February, 2013 decision in Cioffi-Petrakis v. Petrakis and its December, 2012 decision in Petracca v. Petracca. Both cases affirmed Supreme Court Nassau County decisions setting aside the prenuptial agreements in issue,

Now, in an October 15, 2014 decision in McKenna v. McKenna, the Second Department modified an order of Nassau County Supreme Court Justice Margaret C. Reilly that had granted a husband summary judgment motion declaring the parties’ prenuptial agreement to be valid and enforceable. Justice Reilly had also denied the wife’s motion for an award of pendente lite maintenance and counsel fees.

Holding that summary judgment was not warranted, the appellate court may have increased or changed the burden needed to uphold a prenuptial agreement; changing the role of a contract’s “merger clause.” That clause declares that no factual representations not specifically referenced in the contract may later be used to claim the contract was fraudulently induced. Typically, it is a shield used to protect the agreement from attack.

In McKenna, the Second Department suggests a merger clause may be used as a sword: preventing a court from learning the wife’s actual knowledge of the husband’s finances at the time the prenuptial agreement was entered. As that knowledge could only have come from representations of the husband, the merger clause would bar proof of such representations not referenced by the agreement.

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Ex-Husband May Fire Ex-Wife Despite Intent to Use Employment As Support Device

Posted in Agreements and Stipulations, Maintenance

A couple that used “employment” of the ex-wife by the ex-husband as a device to provide post-remarriage support to the ex-wife was bound to employment rules. The wife could be fired for misconduct. So held the Appellate Division, Fourth Department, in its September 26, 2014 decision in Anderson v. Anderson.

The Separation and Property Settlement Agreement that was incorporated into, but survived the entry of the parties’ divorce decree, provided that if the wife remarried, terminating the husband’s maintenance obligation, the husband would “employ” the remarried wife as a “consultant” for a stated weekly salary. That “employment” was to continue until husband’s child support obligations under the Agreement terminated. Although the Agreement did not require the wife “to work any particular number of hours,” it did require her to “be available at reasonable times and from time to time to consult, as needed by the [husband], with respect to [his] various business interests.”

After her remarriage, however, the wife opened a business in competition with her prior husband. He moved to terminate the consultation fees being paid to his former wife on the ground that she, as his employee, had breached her duty of loyalty.

Niagara County Supreme Court Justice Frank Curso denied the motion, concluding in relevant part that “the employment provision is not a contract for employment, but rather . . . is a support provision which allow[ed] the defendant’s business to make payments to plaintiff instead of the defendant himself.”

The Appellate Division, Fourth Department, reversed. The appellate court concluded that the Agreement provision constituted an employment contract, thereby permitting the husband to terminate the payments upon the wife’s breach of her duty of loyalty to him as her employer.

The separation agreement was required to be “enforced according to the plain meaning of its terms.” The Fourth Department did agree with the wife and Justice Curso that the clear and unambiguous intent of the Agreement was to provide a substitute source of monetary support for the wife after the husband’s maintenance obligation terminated. Nevertheless, the appellate court concluded that:

the reason defendant agreed to employ plaintiff does not change the fact that the Agreement established an employment relationship with corresponding rights and obligations for both parties.

An employee may not compete with his or her employer’s business during the time of his or her employment. Here, when the wife opened a business in direct competition with the husband’s business, the wife breached her duty of loyalty to her employer, thereby permitting the husband to terminate the consultation fees and the employment relationship.

Comment: If, indeed, the “employment” of the ex-wife was simply a device to continue to provide support to the ex-wife despite her remarriage that was tax deductible to the husband (and includable in the income of the wife), the device seems wholly unnecessary. Post-remarriage maintenance (alimony) payments need not lose their tax deductibility if other tests for deductibility under the Internal Revenue Code are met. The obligation must terminate if the ex-wife dies before the end of the stated support period (I.R.C. §71[b][1][D]).

Lawrence J. Vilardo, of Connors & Vilardo, LLP, of Buffalo, represented the husband. Joseph M. Finnerty, of Hiscock & Barclay, LLP, of Buffalo, represented the wife.