Mother’s Driving While Impaired Warrants Hearing on Father’s Application to Limit Mother’s Visitation

By Neil Cahn on May 21, 2013 Posted in Custody and Visitation

The Appellate Division, Second Department, has held that a father’s application for sole custody and for supervised visitation for the mother, should not have been denied without a hearing, where the father had alleged that the mother operated a motor vehicle in a impaired state, posing a danger to the children.

In Nusbaum v. Nusbaum, the parties in 2011 had entered a so-ordered stipulation of settlement of their divorce action under which they were to share joint legal custody of their then 14-year-old twins. The father was awarded residential custody, with the mother having unsupervised visitation.

Here, the father had moved to modify the provisions of that stipulation so as to award him sole legal custody of the children and to suspend the mother’s visitation with the children, unless supervised. The father alleged, among other things, that the mother had operated a motor vehicle while impaired, endangering the children. The father also sought an order directing the mother to attend and complete programs in drug and alcohol rehabilitation and anger management.

Pending the determination of the father’s motion, the parties agreed to certain supervised visitation. Moreover, pending his decision on the father’s application, Westchester County Supreme Court Justice John P. Colangelo, in effect, issued a temporary restraining order prohibiting the mother from operating a motor vehicle with the children as passengers.

Ultimately, in an October 23, 2012 order, Justice Colangelo denied the father’s application without holding a hearing.

The father appealed. On December 17, 2012, the Second Department stayed enforcement of the order denying the father’s motion pending the determination of his appeal. The mother’s visitation with the children was limited to visits on two days per week, two hours per day, and the mother was prohibited from operating a motor vehicle with the children as passengers.

Deciding the appeal May 8, 2013 decision, the Second Department held that the father had satisfied his burden to show a subsequent change of circumstances so that modification may be required to protect the best interests of the children. Moreover, the appellate court held, it did not appear that Justice Colangelo possessed adequate relevant information to enable him to make an informed and provident determination as to the children’s best interest so as to render a hearing unnecessary.

Accordingly, the father’s motion should not have been denied without first conducting a full evidentiary hearing to ascertain the children’s best interests. The Second Department sent the case back for such a hearing. Moreover, the Second Department again directed that in the interim, and until further order of the Supreme Court, the mother’s visitation was to be limited to two days per week, two hours per day, with the mother prohibited from operating a motor vehicle with the children as passengers.

Joseph J.A. Tringali, Sr., of counsel to Lawrence G. Nusbaum, Jr., of New Rochelle, represented the father. Donna E. Arams of Harold, Salant, Strassfield & Spielberg, of White Plains, represented the mother.

The Second Department Rules on Child Support Parental Income Cap, Transfer of the Marital Residence, and Judgment Formalities

By Neil Cahn on May 14, 2013 Posted in Child Support (C.S.S.A.), Equitable Distribution, Forms, Judgments and Orders, Statutes

In a May 8, 2013 decision in Mejia v. Mejia, the Appellate Division, Second Department, modified a divorce judgment’s provisions concerning the cap on combined parental income, the disposition of the marital residence, college expenses for three children ages 14, 10 and 6, and judgment inconsistencies with the underlying decision and judgment formalities.

After the parties separated, they each petitioned the Family Court for custody of the children. The parties consented that they share joint legal custody, and that the father have primary physical custody.

After a non-jury trial on certain financial issues, the Family Court considered the first $200,000 of combined parental income in determining child support, based upon, among other things, “the economic reality of life in Rockland County,” and a determination that the gross income of the mother was substantially less than that of the father. The mother’s pro rata share of the basic child support obligation was 37% of 29% of the first $200,00 of combined parent income was fixed at $1,789 per month in the 2011 Family Court order.

The marital residence, titled in the parties’ joint names, was awarded to the father and the children, based upon the father’s claim that there was no equity in the house. The court further concluded in its decision that the father should maintain health insurance for the children, and that the mother should pay 37% of the college expenses of the children.

The Second Department lowered to $150,000 the applied cap on combined parental income, “considering the substantial difference between the parties’ income, the fact that the [mother] has less income than the [father], and the amount of parenting time awarded to the [mother].” Calculated on that basis, the mother’s pro rata share of the child support obligation was $1,341 per month.

Attorney Representing Sister in Child Support Matter Arrested Following Alleged Altercation with Former Brother-In-Law

By Neil Cahn on May 12, 2013 Posted in Attorney and Client, Enforcement of Support and Orders

Patrick Bisogno, an attorney representing his sister in a Staten Island Family Court child support matter, was arrested after allegedly assaulting his former brother-in-law. In reports by the New York Law Journal and the Staten Island Advance (SILive.com), Bisogno was accused of punching the father, John Libertella, of Valley Stream, in the nose.

Bisogno, of Bisogno & Meyerson, LLP in Brooklyn, denied the allegations during a phone call with the Advance. Libertella told the Advance that the altercation occurred May 9th, in a Family Court elevator, after Bisogno hurled insults at him, calling him “deadbeat dad.”

Bisogno does not deny making that statement. He told the Advance that Libertella was $47,000 in arrears in his child support payments. Libertella told the Advance that he was a self-employed podiatrist, and that the judge in the original divorce proceeding imputed a salary number to him “that’s not reflective of what my taxes say.” “To me, that’s false,” he said.

According to the Advance, Libertella claimed Bisogno said Libertella would never see his daughter again, a statement Bisogno denies making.

Libertella said he was treated at Richmond University Medical Center and released. He told the Advance that the vision in his left eye was blurry as a result of the incident. In the story by Andrew Keshner in the Law Journal, a police spokesman stated that there were “no visible injuries.”

Bisogno told the Law Journal and Advance said that he never laid a hand on Libertella. Rather, after Libertella told him he was videotaping him at the Family Court, he put up his hand to block the camera, never touching Libertella. Bisogno said that Libertella’s allegations were a ploy to have him removed as his sister’s attorney.

Custody Issues Considered in Five Second Department Cases Decided May 1st

By Neil Cahn on May 6, 2013 Posted in Custody and Visitation

In five cases decided May 1, 2013, the Second Department continued to voice its concern when parents just don’t get along. Again, the court considered joint custody, hampering the child’s relationship with the other parent, private interviews of children by the judge, contempt for violations of visitation orders, and whether a non-parent may be granted custody over a surviving parent.

In Wright v. Kaura, the Second Department reversed a joint legal custody award to grant sole legal custody to a mother. The appellate court noted that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion.

Here, joint legal custody was inappropriate as the parties demonstrated an inability to cooperate on matters concerning the child. The record was replete with examples of hostility and antagonism between the parties, indicating that they were unable to put aside their differences for the good of the child. Thus, Acting Westchester Family Court Judge Thomas R. Daly erred when awarding the parties joint legal custody of their child.

In Lawlor v. Eder, the Second Department held that a father’s refusal to encourage and foster meaningful contact between the child and the mother was the basis to award residential custody to the mother, although the parents shared joint legal custody.

A custodial parent’s interference with the relationship between a child and the noncustodial parent is deemed an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent.

Grandmothers Denied Visitation in Two Recent Appellate Reversals

By Neil Cahn on April 29, 2013 Posted in Custody and Visitation

In two decisions this month, appellate courts reversed Family Court orders and dismissed petitions for grandparent visitation.

In Pinsky v. Botnick, the petitioner was the paternal grandmother. Her son had died at the age of 35, survived by his widow and 4 children, then ages 9, 7, 5, and 3. Her Family Court petition for visitation was filed approximately six weeks after her son’s death.

At the hearing, the grandmother testified that she had a close relationship with the children. The grandmother also acknowledged that the mother was a fit parent. However, according to the mother, the children were hysterical about the court proceeding, fearful that the grandmother would take them away from their mother. The attorney for the children informed the Family Court that the children did not wish to see their grandparents.

Nassau County Family Court J.H.O. (and former Judge) Elaine Jackson Stack denied the mother’s application to appoint a neutral forensic evaluator. The mother retained Peter J. Favaro, Ph.D., whose report was received in evidence. Dr. Favaro reported that the children were experiencing a “complicated bereavement”: the three older children had reported having bad dreams about seeing their grandmother and that she would take them away. Dr. Favaro concluded that forcing interaction between the children and grandparents would only strengthen those fears.

Mother Granted Decision-Making Where Agreement Failed to Provide for Parental Conflicts

By Neil Cahn on April 15, 2013 Posted in Custody and Visitation

Where the parties’ joint legal custody agreement only provided for each parent to have equal input on all major decisions, including education, but did not provide for conflict resolution, the mother, after a hearing, was awarded temporary decision-making authority. Such was the holding of the April 11, 2013 decision of the Appellate Division, First Department, in Sequeira v. Sequeira.

The appellate court held that on the motion for such relief, New York County Supreme Court Justice Lori Sattler properly exercised her discretion in determining that it was in the child’s best interest to award the mother that power.

The parties had agreed to joint legal custody, which their agreement defined as including equal input with respect to all major decisions, including education. They did not, however, provide for a situation, such as the one presented, where the parents could not agree on where their child should attend school. The failure of the parents to agree on this issue thus presented the change in circumstances necessary for the court to modify the parties’ arrangement to protect the best interests of the child.

The record supported the temporary award of educational decision-making to the mother. The father’s due process rights were honored by the fair hearing held by Justice Sattler. He was permitted to cross-examine the mother, testify on his own behalf, and argue his case. As to this argument to the appellate court that he was denied an opportunity to hire an attorney, he never made a request to do so.

Comment: “Joint custody” is a nebulous term. Thus, care should be taken to carefully define what the parties intend by the use of that term. If shared decision-making is intended, the particular subjects or criteria requiring the parents’ agreement should be specified. Moreover, the procedure to resolve conflict must be detailed. The steps to be taken before asking a court to intervene should be made clear. Whether the parents are required to work with a therapist, consult an expert, or engage a mediator as a condition to making a judicial application should be set forth. Moreover, although in New York, the delegation of decision-making to a third party other than the court may be against public policy, providing some authority to an agreed-upon tie breaker may be determined to be in the best interests of the children.

On this appeal, the father represented himself. The mother was represented by Lara Ott of Stein & Ott, LLP, of Manhattan.

Judge Calls for Bickering Parents to be Mature

By Neil Cahn on April 8, 2013 Posted in Custody and Visitation

Kings County Justice Matthew J. D’Emic, in his April 3, 2013 decision in E.S. v. S.S., blamed both parents for the stress upon their young daughters. As a result, no change was made to the custody and visitation provisions of the parents’ divorce judgment.

Both sides sought changes to the judgment’s visitation schedule. The mother asked to partially eliminate visitation; the father sought sole custody, as well as changes to the pick-up and drop-off location.

Reviewing the parties’ combative history, Justice D’Emic noted that before the divorce judgment, the parents had held onto their strident positions longer than they served a purpose. Therapy for the elder daughter was sought. The father was forced to endure a lengthy and humiliating term of supervised visitation with both of his children.

The long and contentious trial followed,which the father estimated cost the parties more than $1,000,000.00. Not surprisingly, the Court noted, neither parent has recovered, and motions for various relief are submitted on a regular basis.

Several months ago, at the mother’s request, and based on reports of the children’s stress over visitation with the father, the court allowed the mother to seek family therapy, encouraging the father to participate. Neither side was now satisfied with the way things were going.

Unfortunately, courts are never in an ideal position to make decisions for parents. More unfortunate is the fact that courts are too often asked to do so.

The children’s therapist recommended that the whole family, together with a parent coordinator “all meet together and work out a clear agreement specifying the parameters of visitation to provide the children with some sense of security and control over visitation with the father.”

To alleviate stress and to provide consistency and regularity to the children, the Court directed the parents to adhere literally to the visitation provisions of the divorce judgment.

Furthermore, the mother and the father are directed to exercise custody and visitation in a manner appropriate to their responsibilities to their daughters. Maturity must have a role here.

Justice D’Emic made no change to prior award of sole custody to the mother, or to the decision-making rights and visitation schedule for the father.

It is the court’s opinion that any stress to the daughters is being caused by their parents nit-picking, one-upmanship and lingering resentments. If the relationship between father and daughters is strained, it is up to the parents – both parents – to repair it.

The father was opposed to the family therapist. Nevertheless, Justice D’Emic encouraged him to cooperate and participate in the therapy as a step towards repairing his relationship with his daughters.

The Court concluded that the issues between the parents were not insurmountable. “With a minimum of trust and accommodation these girls can have an enjoyable experience with both parents – an experience to which they are entitled.”

Aurora Cassirer, of Troutman Sanders LLP, of Manhattan, represented the father; Mark Holtzer, of Snitow, Kanfer, Holtzer & Millus, LLP, of Manhattan, represented the mother.

Wife Wins Million-Dollar Lottery While Divorce Action Is Pending

By Neil Cahn on April 1, 2013 Posted in Child Support (C.S.S.A.), Counsel Fees, Equitable Distribution, Temporary (Pendente Lite) Relief

What does a court do with a wife who claims not to have discovered that she was a million-dollar winner of a May 19, 2011 lottery drawing until only days before the ticket would have expired a year later, and 11 months after she was awarded temporary support and counsel fees in her pending divorce action?

Almost a year ago, the media covered the claim of Lolymary Questel, a Queens pre-school teacher, that she discovered her million-dollar lottery ticket in her purse only days before the one-year deadline to produce the ticket to the Lottery Commission would have expired. “I was cleaning out an old bag and found some Lottery tickets,” explained Questel to the Lottery Commission. “I checked the drawing results on the Lottery’s website and realized one of the tickets was a million dollar winner.” Questel, a regular Mega Millions player, spent $1 on a set of Quick Pick numbers for the twice weekly drawing.

Seven months before the drawing, Ms. Questel’s husband had commenced his divorce action on October 28, 2010 (just weeks after New York’s no-fault law went into effect).

On June 22, 2011, 5 weeks after the lottery drawing, Queens County Supreme Court Justice Pam B. Jackman-Brown awarded Ms. Questel temporary maintenance of $127.39 per week and $4,500.00 in interim counsel fees. In April, 2011, less than a month before the drawing, Mr. and Ms. Questel had entered a Stipulation under which Mr. Questel agreed to pay C.S.S.A.-formula interim child support and his then 77% pro rata share of educational, extracurricular, summer camp and unreimbursed health expenses.

Is it Open Season on Prenuptial Agreements?

By Neil Cahn on March 25, 2013 Posted in Agreements and Stipulations

In its February 20, 2013 decision in Cioffi-Petrakis v. Petrakis, the Second Department affirmed the decision of former Nassau County Supreme Court Justice Anthony J. Falanga which set aside the parties’ prenuptial agreement. Indeed, decisions over the past year indicate that there may be a pendulum swinging towards easing the burden on the party (generally, the wife) attacking such agreements.

For example, in its December 5, 2012 decision in Petracca v. Petracca, the Second Department affirmed the decision of Nassau County Supreme Court Justice Jeffrey S. Brown that set aside a postnuptial agreement due to the husband’s overreaching at the time of signing some 16 years earlier (see the blog post of December 10, 2012: “Postnuptial Agreement Vacated for Overreachong 16 Years After Entry).

In Cioffi-Petrakis, the wife contended that her husband had reneged on his oral promise to tear up their prenuptial agreement once she had children made shortly before the pre-nuptial agreements’s execution (the parties now have two sons and a daughter). That promise was not referenced in the parties’ written agreement entered just four days before the parties’ marriage. Moreover, the parties had disclaimed reliance upon oral statements by either party, a relatively standard provision in the agreement, itself. Nevertheless, the Second Department agreed with Justice Falanga that the evidence supported the wife’s claim that she had been fraudulently induced to accept the deal.

Ironically, three years earlier (72 A.D.3d 868, 898 N.Y.S.2d 861), the Second Department affirmed Justice Falanga’s prior order dismissing the wife’s causes of action which attacked the very same agreement on the grounds of unconscionability. There, the Second Department was satisfied with the record’s demonstration that the wife was represented by independent counsel during the prenuptial agreement negotiations (her counsel signed the agreement as a witness). Moreover, the agreement itself recited that the wife entered into it “freely, voluntarily and with full knowledge of all circumstances having a bearing on this agreement.” At that time, the Second Department opined that the wife was provided with meaningful bargained-for benefits, including a one-third interest in one of the defendant’s businesses. The wife had advanced nothing but conclusory and unsubstantiated assertions insufficient to defeat the husband’s motion for summary judgment dismissing the cause of action to set aside the parties’ prenuptial agreement on the ground of unconscionability.

Collecting Counsel Fees in Divorce Actions: Charging Lien Against IRA Denied

By Neil Cahn on March 12, 2013 Posted in Counsel Fees, Enforcement of Support and Orders

In his February 26, 2013 decision in J.K.C. v T.W.C., Monroe County Supreme Court Justice Richard A. Dollinger held that an attorney could not have a charging lien under Section 475 of the Judiciary Law against the IRA received by his former client (the wife) as her marital share of the husband’s IRA. IRAs, generally, are exempt from creditor’s claims pursuant to CPLR §5205(c)(2).

The attorney had represented the wife in a divorce action. In the retainer agreement, the attorney noted that if fees were due and owing at the time of his discharge, the attorney had the right to seek a charging lien which the agreement described as “a lien upon the property that was awarded to you as a result of equitable distribution in the final order or judgment in the case.” The client also signed a “statement of client’s rights and responsibilities” which stated that a court could give the attorney a charging lien which “entitled your attorney to payment for services already rendered at the end of the case out of the proceeds of the final order or judgment.”

Justice Dollinger recognized several facts as pertinent to his analysis:

There was no evidence that the wife ever contested her attorney’s charges until after the judgment of divorce;
There was no allegation before the court that the wife ever agreed to pay the attorney’s fees specifically from the IRA account;
There was no evidence that the wife possesses any other assets, distributed under the divorce judgment, available to satisfy the charging lien; and
There was no allegation that the client, in the divorce judgment, engaged in any collusive or other improper behavior to thwart the attorney’s recovery of his fees.

Holding that a charging lien could not be asserted against an IRA, Justice Dolinger also considered:

The federal tax consequences on any withdrawal;
The penalty imposed when an unqualified withdrawals is made;
The actual ownership of the trust funds by the trustee;
The “anti-alienation” provisions of ERISA;
The wife’s never having “available cash proceeds” during the trustee-to-trustee transfer of the funds from the husband’s IRA to her own;
The broad language protecting IRA roll-overs from the reach of creditors in CPLR §5205;
The lack of express direction in Section 475 in the Judiciary Law to permit a charging lien against retirement funds; and
The lack of any provisions relating to a charging lien for attorneys fees under New York’s Domestic Relations Law.