Divorce: New York

Divorce: New York

Temporary Maintenance Award Increased From $96 to Presumptively Correct $784.62 Per Week

Posted in Temporary (Pendente Lite) Relief

Gavel mainIn its February 18, 2015 decision in Dunleavy v. Dunleavy, the Second Department modified the order of Suffolk County Supreme Court Justice Carol Mackenzie by increasing the wife’s temporary maintenance award from $75 to $784.62 per week.

The Second Department noted that Domestic Relations Law § 236(B)(5-a) sets forth formulas for the courts to apply to the parties’ reported income in order to determine the presumptively correct amount of temporary maintenance. It further provides that the court shall order the presumptive award of temporary maintenance in accordance with the formulas, unless it finds that the presumptive award is unjust or inappropriate. If so, the court must set forth, in its written order, the enumerated factors it considered and the reasons it adjusted the presumptive award of temporary maintenance.

Here, Justice Mackenzie applied the statutory formulas set forth in Domestic Relations Law § 236(B)(5-a) and arrived at a presumptive award of $784.62 per week, but found that the presumptive award was unjust and inappropriate. The court awarded the wife only $75 per week in temporary maintenance, a 96% reduction of the presumptively correct award.

The appellate court held that the record did not support any reduction of the presumptively correct award, or otherwise lead to the conclusion that the presumptive award was unjust or inappropriate under the circumstances of this case.

While an appellate court should rarely modify a temporary maintenance award, here, we conclude that justice requires an award equal to the statutorily presumptive award.

The Second Department also held that Justice Mackenzie had improvidently exercised her discretion in awarding the plaintiff an attorney’s fee in the sum of only $2,500. Considering the parties’ relative circumstances, including the disparity in the parties’ respective incomes, and considering all of the relevant factors, the appellate court increased the attorney’s fee to the sum of $7,500.

Of interest here may also be the fact that Justice Mackenzie’s order was dated June 21, 2013 (the motion having obviously been made months before that). It thus took some 20 months for the wife’s temporary support to be increased.

Erik C. Howard, of Foster, Vandenburgh, & Riyaz, LLP, of Westhampton, represented the wife. Alan M. Wolinsky, of Wolinsky, Parnell & Montgomery, LLP, of Lake Ronkonkoma, represented the husband.

Do You Kiss Your Mother With That Mouth?

Posted in Child Support (C.S.S.A.)

Knight1All hail Sir Richard of Rochester! Chivalry is not dead.

Although opening his January 17, 2015 opinion in Cornell v. Cornell with “Sticks and stones will break my bones, But words will never harm me,” Monroe County Acting Supreme Court Justice Richard A. Dollinger nevertheless held that vile words to a child support-paying mother from her college-aged son were not to be tolerated.

As Justice Dollinger summarized, this case tested whether a son who engaged in vile disparagement of his mother, may strip his father of his right to claim support, including payment of college expenses. The Court held that it did.

No one should be permitted to refer to their mother in such fashion, and then, without recanting or asking for forgiveness, seek the court’s assistance to have that person support their future life. This court will not condone such actions by an unworthy son.

In his motion papers before the Court, the father sought child support from the mother and payment for college expenses. The mother argued that her obligations to pay any support – including the cost of college education – were obviated because of the child’s calculated estrangement from her. She claimed that her son described her as a “douche bag” and an “asshole,” and that this, among other behavior, has caused alienation between her and the son.

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Disqualification of Counsel: Is It A Shield Or A Sword?

Posted in Attorney and Client

In a 3-1 decision on February 4, 2015 in Cohen v. Cohen, the Second Department disqualified a prominent Long Island matrimonial firm from representing the wife in this 2011 divorce action.

It was disputed whether in November 2010 the husband had consulted Steven J. Eisman, senior partner in Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP. The husband was unable to substantiate his allegation that he consulted with Mr. Eisman. Mr. Eisman stated that while the husband had scheduled an appointment for a consultation, he canceled it. Mr. Eisman further asserted that the husband had consulted with various top matrimonial attorneys in the area to prevent the wife from hiring an attorney.

However, it was not disputed that the husband’s brother met with Mr. Eisman in July, 2010. The brother stated that he had shared with Mr. Eisman confidential information concerning various businesses the husband and his brother owned and in which they shared common interests. This included detailed information concerning the day-to-day operations of the businesses which he operated jointly with the husband, illustrated by a diagram, described how the businesses earned a profit, and provided his opinion as to the value of the businesses. Mr. Eisman acknowledged that he had discussed with the husband’s brother “surface details” concerning, among other things, the husband’s brother’s employment, the brother’s marriage, residence, and children.

The brother (and obviously the husband) never retained the law firm as his counsel. The wife did. The husband moved to disqualify Mr. Eisman’s firm.

The Second Department first noted that the disqualification of an attorney is generally a matter resting within the sound discretion of the court. In his ruling below, Supreme Court Justice Norman Janowitz had denied that motion.

Nonetheless, the Second Department reversed, noting “doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety.” The appellate court held that here, Justice Janowitz should have granted the husband’s motion to disqualify the law firm. Given the undisputed evidence of the consultation between Mr. Eisman and the husband’s brother, as well as the nature of the matters disclosed there was a resulting substantial risk of prejudice.

The very appearance of a conflict of interest was alone sufficient to warrant disqualification of the law firm as a matter of law without an evidentiary hearing, and notwithstanding the existence of a factual dispute as to whether Eisman met with the [husband].

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Court Removes Forensic Evaluator In Custody Case

Posted in Custody and Visitation

In its January 28, 2015 decision in Carlin v. Carlin, the Appellate Division, Second Department, upheld the removal of the forensic evaluator previously court-appointed in the parties’ divorce action.

On the renewed motion for the removal made by the wife, she submitted a letter from the Mental Health Professionals Certification Committee for the First and Second Judicial Departments to the evaluator, informing him that he had been removed from the Mental Health Professionals Panel. On that basis, Suffolk County Supreme Court Justice Joseph Santorelli vacated the prior appointment.

In any case involving custody, visitation and other specified family matters, a judge is authorized to appoint a mental health professional to evaluate the family

The Mental Health Professionals Panel was established by the Appellate Division, First and Second Judicial Departments, to ensure that courts and parties have “access to qualified mental health professionals” who are available to evaluate the parties and to assist courts in reaching appropriate decisions as to, inter alia, custody and visitation (22 N.Y.C.R.R. 623). The Certification Committee is tasked with the responsibility of recommending eligible mental health professionals for appointment to the panel, investigating complaints against panel members, and recommending removal of panel members to the Presiding Justices of the First and Second Judicial Departments.

The panel is comprised of approximately 266 licensed psychiatrists, psychologists and social workers, whose names can be accessed in the MHP Resource Directory 2014.

The Departments publish a 2013 Mental Health Professionals Handbook which serves to familiarize the panel with the procedures and protocols for handling court ordered mental health evaluations. It includes relevant regulations and statutory provisions, administrative policies, court forms, and sample orders.

Peter Panaro of Massapequa represented the wife. Christopher J. Chimeri of counsel to Campagna Johnson, P.C., of Hauppauge represented the husband.

Title Controls Premarital Contributions To The Acquisition and Expenses of Property

Posted in Equitable Distribution

Once again, it has been made clear that where either or both spouses have assets or liabilities at the date of marriage, it is foolhardy (or at least imprudent) to enter the marriage without a prenuptial agreement and/or the assembly of proof of the extent, nature and value of those assets or liabilities.

Take the January 8, 2015 decision of the Appellate Division, Third Depatrtment, in Ceravolo v. DeSantis. In that case, the parties were married in July, 1996. The wife commenced the action for divorce in June, 2010. Acting Albany Supreme Court Justice Kimberly O’Connor determined, among other things, that the marital residence, which had been purchased by the husband prior to the marriage, was marital property and awarded the wife, among other things, half of its value. The husband appealed.

The Third Department agreed with the husband that Justice O’Connor erred in classifying the marital residence as marital property. Marital property is defined as “all property acquired by either or both spouses during the marriage” (Domestic Relations Law §236[B][1][c]), while “property acquired before marriage” is separate property (D.R.L. §236[B][1][d][1]).

Title is a critical consideration in identifying the nature of real property acquired before the marriage. The circumstances surrounding the purchase of the residence and the parties’ intent relative thereto are irrelevant to the legal classification of the residence as separate or marital property.

Here, the husband purchased the marital residence in January 1994 — 2½ years prior to the parties’ marriage — paying $130,000 of his own funds and borrowing an additional $100,000 from his father, secured by a note and mortgage. Although the wife contributed $30,000 of her separate funds to the initial purchase of the residence, the husband took title to the property in his name alone.

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Wife’s TV Home Shopping Was Wasteful Dissipation Of Marital Assets

Posted in Equitable Distribution

In last month’s decision in Lowe v. Lowe, the Third Department upheld subtracting one half of the amount spent by a wife on TV home shopping from her distributive award.

The parties had married in 2005 and had no children together. In February 2012, the husband commenced this action for divorce. Following the non-jury trial, Tompkins County Supreme Court Justice Phillip R. Rumsey ordered the distribution of the marital property, including several bank and investment accounts and the marital residence. The court also ordered that the husband pay the wife $23,000 in counsel fees, as well as $3,000 per month in spousal maintenance for approximately 2 1/2 years. The husband appealed and the wife cross-appealed.

The Third Department upheld Justice Rumsey’s award to the wife of 50% of the appreciation of the husband’s separate property investment portfolio, 401(k), pension and residence. However, offsetting what may have been that very generous percentage of separate property appreciation [comment: no part being attributed to market forces] was Justice Rumsey’s decision to subtract from the wife’s distributive award one half of the total amount the wife spent during the marriage on television home shopping.

The Third Department agreed. The almost $32,000 the wife spent over this seven-year marriage was a wasteful dissipation of marital assets.

It is undisputed that, during the course of the marriage, the wife developed a shopping problem and, despite the husband’s effort to stop her, bought over $30,000 worth of items from television shopping channels. Thus, we find no abuse of Supreme Court’s considerable discretion in reducing the wife’s award by one half of the amount dissipated, or $15,955.

Dirk A. Galbraith, of Holmberg Galbraith & Miller, of Ithaca, represented the husband. Sharon M. Sulimowicz, of Ithaca, represented the wife.

Litigating Prenuptial Agreements Is Going To Get Messier

Posted in Agreements and Stipulations, Counsel Fees, Maintenance

Particularly in the Second Department, the last few years have brought a host of cases threatening the enforceability of prenuptial agreements. To review a few just type “prenup” in the keyword search at right. It’s going to get worse.

New York’s Domestic Relations Law §236(B)(3) provides that prenuptial and other marital agreements executed with proper formalities are valid and may include

(1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will;

(2) provision for the ownership, division or distribution of separate and marital property;

(3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment;

and (4) provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this article.

The December 24, 2014 decision of the First Department in Anonymous v. Anonymous, is a case in point.

In this matrimonial action the wife had sought, among other things, to set aside the parties’ prenuptial agreement.Ruling on several motions, Supreme Court, New York County Justice Ellen Gesmer upheld the validity generally of the the prenuptial agreement, but held the issue of the current unconscionability of the spousal support provision would be resolved at trial.

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Keeping Dads Around After Divorce

Posted in Custody and Visitation

Children in families without fathers in the home are not doomed to failure, or anything close to that. So concludes an article in Scientific American Mind, “Where’s Dad,” by Paul Raeburn of the Knight Science Journalism Tracker, and author of Do Fathers Matter?: What Science Is Telling Us About the Parent We’ve Overlooked.

However, as the article also noted, “The discovery of the father is one of the most important developments in the study of children and families. Our failure to address the question of fathers’ value is more than simply a matter of academic bickering.”

Fathers make unique contributions to their children. “Fatherhood is about helping children become happy and healthy adults, at ease in the world, and prepared to become fathers (or mothers) themselves.”

 

Fathers are disappearing: fewer dads are participating in the lives of their children now than at any time since the U.S. began keeping records. This shift matters because the effects of a missing father can be profound . . . .

Mothers today continue to perform the majority of primary caregiving tasks (feeding, bathing, comforting) notes science journalist Roni Jacobsonin her Scientific American Mind article, “Build Your Own Family.” Fathers tend to take part in supplementary activities, such as play, which matters less to survival than to cognitive development. For that, the quality of a father’s involvement appears to matter more than the quantity.

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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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