April 2011

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There is perhaps no greater opportunity for courts to state their philosophies or to become instruments of social change than in cases involving the surnames of children of divorced and unmarried parents.

Take the March 29, 2011 Second Department case of Matter of Eberhardt. In that case, Mariah, the now nine-year-old daughter of Michelle Esquenazi and John Eberhardt, was born out of wedlock.  At the time of her birth, Mariah’s parents had been in a committed relationship and for a number of years and lived together with the mother’s three children from a prior marriage. Mariah’s birth certificate reflected the sole surname of her father. The father had acknowledged paternity. The parties’ intended wedding never took place. Approximately 1½ years after the child’s birth the father moved out. The mother maintained physical and legal custody, and the father visited regularly in accordance with an arrangement sanctioned by the Family Court.

In 2008, Ms. Esquenazi petitioned to change the child’s surname to Esquenazi-Erberhardt. Nassau County Supreme Court Justice Karen Murphy conducted a hearing at which the parties disputed the extent to which the father had been made aware that the child had been using the hyphenated surnames since age 2, and the extent of his protests once the use was known. Justice Murphy denied the mother’s petition, crediting the father’s testimony. Justice Murphy found that the objections of the father, who was emotionally and financially a part of Mariah’s life, were reasonable. The name change, Justice Murphy ruled, benefited the mother, not the child. To rule otherwise would reward the mother for her self-help and her knowing violation of the proper procedures for a name change under Civil Rights Law §§60 through 63.

A Second Department panel of three women and one man reversed, holding the father’s objections were not reasonable. Rather, his objections were raised to teach the mother a lesson. Moreover, the benefits to the child would not be denied simply to punish the mother for her self-help. Distinguishing the cases in which a mother was seeking to change the child’s surname to that of the mother, eliminating the father’s surname, the Second Department disagreed with Justice Murphy, and held:

[T]he emotional and financial involvement of the father is not a bar to a change to hyphenated surnames.

Continue Reading Changing the Name of the Child of Divorced or Unwed Parents

Have you looked at an IRS Form 1040 (pdf) lately?

Looking at the 1040 is supposed to begin the C.S.S.A. calculation for determining child support.  For actions commenced on or after October 13, 2010, it is also the first step when determining temporary maintenance. When computing child support under either the Family Court Act or the Domestic Relations Law, the calculation starts with a determination of parental income. F.C.A. §413(c)(1) or D.R.L. §240(1-b)(c)(1). Determining parental income under either F.C.A. §413(b)(5)(i) or D.R.L. §240(1-b)(b)(5)(i) begins by looking at the:

gross (total) income as should have been or should be reported in the most recent federal income tax return.

The recent amendment to D.R.L. §237(B) adopts the C.S.S.A. definition to begin the calculation of a temporary support award under D.R.L. §237(B)(5-a)(b)(4):

“Income” shall mean:

(a)  income as defined in the child support standards act . . . .

There actually is a line on the federal income tax return which reports the “total income.”  It’s line 22: Total Income.jpg

Although “gross” income is a term in the statute, but not the 1040, its context is made clear when reference is made to the calculation of Adjusted Gross Income which begins on line 23.Continue Reading "Gross (Total) Income" for the Purposes of Child Support and Temporary Maintenance

Calulator on 100s 2.jpgIn this second of two blogs discussing Supreme Court Nassau County Justice Anthony J. Falanga‘s March 28, 2011 decision in A.C. v. D.R., we look at the Court’s temporary financial relief rulings under the recent amendments to D.R.L. §§236B(5-a) and 237. Last Monday’s blog discussed the joinder for trial of the wife’s post-no-fault action with the husband’s pre-no-fault action, as well as the Court’s denial of the wife’s partial summary judgment motion on her no-fault claim, although the Court recognized no defenses were available to a subjective irretrievable breakdown claim.

The parties were married in 1992 and have 3 children, ages 13, 10 and 7. The parties continue to reside in the marital residence.

The husband, a 52-year old physician, had 2009 earnings of $530,645.00, although the Court noted that he has $15,833.00 in monthly gross W-2 income from private practice. The wife, a 46-year old homemaker, had $8,516.00 in 2009 dividend income.

At the Preliminary Conference, the husband stipulated to pay the marital residence realty taxes (there is no mortgage), gas electric, telephone including cell, water, homeowner’s, automobile, umbrella, medical and disability insurance, cable TV and Internet, alarm, domestic help, gardening and landscaping, snow removal, sanitation and exterminating, and in-network health expenses. The husband claimed the fixed expenses totaled $7,274.00 per month ($87,288.00 per year).

Based on its determination that the husband’s income net of FICA and Medicare taxes was $529,857.00, the Court first applied the new temporary support formula to determine that the presumptive temporary maintenance award would be $148,297.00 (30% of $529,857.00 minus $8,516.00, as that result is less than 40% of the parties’ combined income less the wife’s income). The Court, then, noted that blind adherence to this formula was likely to lead to inequitable results:

. . . [I]n this court’s view, the statute requires some remedial language as strict application in almost every case will not effectuate the statute’s purpose and will result in awards that are unjust and inappropriate . . . .

Continue Reading Court Tempers Temporary Maintenance Formula and Temporary Child Support with Reality Check

Falanga.jpgIn his March 28, 2011 decision in A.C. v. D.R., Supreme Court Nassau County Justice Anthony J. Falanga gave full effect to New York’s new no-fault divorce law and temporary financial relief amendments.

In this first blog of two parts, the Court’s joinder of the wife’s no-fault action with the husband’s pre-no-fault action will be considered, together with the denial of the the wife’s motion for partial summary judgment on her no-fault grounds.  Although holding there is no defense to a no-fault claim, the Court declared that summary judgment and bifurcation of grounds issues are inapproriate.

Wednesday’s blog will consder the financial awards granted under the recent D.R.L. amendments.

The parties were married in 1992 and have 3 children, ages 13, 10 and 7. The husband, 52, is a physician; the wife, 46, a homemaker.

The husband commenced his divorce action on July 27, 2010 on the grounds of constructive abandonment and/or cruelty, although the wife was not served until October 22, 2010 (well within the 120 days of filing needed for timely service). However, four days before such timely service, the wife filed her own Summons with Notice, commencing an irretrievable-breakdown divorce action under D.R.L. §170(7) [effective October 13, 2010].

Earlier in this case, Justice Falanga resolved by January 18 Order, the husband’s motion to consolidate the two actions. The wife opposed on the grounds that if her action was subsumed within the earlier action, she would be prejudiced by her inability to avail herself of the new financial statutes. Represented by Robert Broderick, Esq., the wife argued instead for joinder for trial under C.P.L.R. §602(a), leaving the two actions intact, yet bringing the two actions together in one venue for pretrial and trial proceedings.

Justice Falanga noted that by joining the cases, as opposed to consolidating them, the husband would preserve his earlier commencement date for Equitable Distribution purposes, yet the wife would be entitled to relief under the later-enacted amendments to D.R.L. §§236B(5-a) and 237. In its January 18 Order, the Court granted a joint trial and joint discovery, after a bifurcated immediate grounds trial.

However, before that trial, the wife moved for partial summary judgment to establish her no-fault grounds as well as for interim financial relief.

In its March 28 Order, the Court re-analyzed the issues addressed in its January 18Order, denied partial summary judgment and canceled the grounds trial. In doing so, Justice Falanga gave true meaning to the no-fault nature of New York’s new divorce ground.

. . . [A] plaintiff’s self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken. . . . In adopting no-fault divorce, the Legislature implicitly recognized that the parties to a marriage should be able to make personal and unavoidably subjective decisions about the continuation of their marriage partnership.

. . . .

Therefore, in this court’s view, the Legislature did not intend nor is there a defense to DRL § 170(7).

Denying partial summary judgment, Justice Falanga also gave full import to the second sentence of D.R.L. §170(7), which provides that “no judgment of divorce shall be granted” until the custody and financial issues have been resolved. Such, the Court held, precludes the granting of summary judgment.Continue Reading Court Recognizes There Is No Defense to No-Fault Divorce, But Withholds Summary Judgment