The Appellate Division, Second Department, has held in its June 15, 2016 decision in Schiero v. Perrotta, that a mother’s testimony was a sufficient foundation for the admission in evidence of her children’s medical bills and her proof of payment of those bills.

The mother had filed a violation petition alleging that the father had failed to pay his pro rata share of the children’s unreimbursed medical expenses. At the ensuing hearing, the mother testified that she had incurred $980 in medical expenses for the children. She attempted to offer into evidence copies of medical bills and proof of payment.

Support Magistrate Rachelle C. Kaufman, however, refused to admit the medical invoices into evidence on the ground that the medical invoices were hearsay, and were not admissible through the mother’s testimony. Magistrate Kaufman then held that the mother failed to demonstrate the amounts of each individual medical expense, or when they were incurred. The Magistrate dismissed that branch of her petition. The mother filed objections, which were denied by Rockland County Family Court Judge Sherri L. Eisenpress.

Continue Reading Mother’s Testimony Sufficient Foundation for Receipt in Evidence of Health Care Invoices and Payment Records

“Estoppel” is the principle that precludes a person from asserting something contrary to that inconsistent with a previous statement, position or ruling. Two decisions last month bringing the principal and to focus.

First, the June 4, 2014 decision  of Kings County Supreme Court Justice Jeffrey S. Sunshine in Zito v. Zito primarily resolved the wife’s motion for temporary relief in a divorce action commenced by the husband on June 7, 2011. The parties had been married 10 years before that, and had a daughter (then 5) and a son (then 3).

The husband works in the family-owned Smiling Pizzeria. The wife, although a licensed pharmacist, alleged that she had been a full-time homemaker since the children were born. Those children attend private school and participate in a number of organized activities.

However, in addition to the wife’s motion for temporary relief, Smiling Pizzeria, itself, had moved to be allowed to intervene in the divorce action. The pizzeria wanted to establish that it was owned only by the husband’s father; that the husband had no ownership interest. Without an ownership interest of the husband, it was argued, it could not be subject to equitable distribution.

Continue Reading Being Bound by Statements in Tax Returns and Court Papers

Filing income tax returns as “single” for the 11 years before a decedent’s death, did not, as a matter of law, estop a woman from claiming to be the decedent’s surviving spouse in contested estate proceedings. So held New York County Surrogate Nora S. Anderson in the May 22, 2014 decision in Estate of Tran (pdf).

Sang Kim Nguyen filed a petition to be appointed Administratrix of the Estate of Truong Dinh Tran. Ms. Nguyen claimed to be Mr. Truong’s widow under the common law of Vietnam. Separate cross-petitions for appointment were filed Mr. Truong’s alleged son, duaghter’s and grandson, who all sought summary dismissal of Ms. Nguyen’s petition.

Mr. Truong died at the age of 80 on May 6, 2012, leaving an estate that has been estimated to be worth more than $100 million.

According to Wikipedia, Truong was the principal owner of the Vishipco Line, the largest shipping company in South Vietnam in the 1970s. As a shipowner, he earned millions of dollars hauling cargo for the United States military. Truong left Vietnam on April 30, 1975, the day that Saigon fell to the communists. Truong boarded one of his eleven ships and traveled to the United States with two suitcases of gold.

Continue Reading Filing Tax Returns as “Single” May Not Estop Claim to Be Decedent’s Widow

Mom with daughter homework.jpgThe November/December issue of Scientific American Mind magazine presents the article, What Makes a Good Parent? A growing body of research conducted over the past 50 years shows fairly clearly that some parenting practices produce better relationships between parent and child and happier, healthier, better functioning children.

A new study by the article’s author, Robert Epstein, conducted with Shannon L. Fox, a student at the University of California, San Diego, was presented at the annual meeting of the American Psychological Association this past August. Dr. Epstein, a longtime researcher and professor of psychology, is a contributing editor for Scientific American Mind and former editor-in-chief of Psychology Today.

The study compared the effectiveness of 10 parenting competencies recognized as predictors of good parenting outcomes. Although this blog article will leave the “Ten Competencies” for another discussion, the author concludes, not surprisingly, that the best thing parents can do for their children is to give them lots of love and affection.

Getting along with the other parent is necessary. Even in co-parenting situations where parents live apart, it is crucial to adhere to practices that do not hurt children, to resolve conflicts out of sight of the children, to apologize to one another and forgive each other (both can be done in front of the kids), to speak kindly about the other parent, and so on. Stress management is also important for good parenting.

The study also determined that all types of people are equally competent at child-rearing; that the characteristics that people often associate with good parenting are probably not very significant.

  • Women appear to be only a hair better than men at parenting (women scored 79.7 percent on the study’s test, compared with 78.5 percent for men).
  • Parents who were older or who had more children also did not produce significantly better parenting outcomes.
  • Parents seem to perform just as well whether or not they have ever been married.
  • Divorced parents appear to be every bit as competent as those who are still married, although their children are somewhat less happy than the children of parents who were never divorced.
  • Neither race, nor ethnicity seems to contribute much to parenting competence.
  • Gays and straights are just about equal in parenting ability (gays are a “hair” better).

One characteristic that did seem to make a difference was education: generally speaking, the more education, the better the parenting.

The bottom line was that when judging an individual’s competence as a parent, one should measure that competence directly rather than default to commonly held stereotypes and prejudices.

Finally, the study concluded that parents are trainable. Parents who have taken parenting classes produce happier, healthier and more successful children; and more training leads to better outcomes.

The playing-field in custody litigation is now supposed to be gender-neutral. One cannot help but believe, however, that remnants of prejudices and stereotypes remain.

This study may not only help to level the field, it should provide a focus for facts and issues when making decisions in custody litigation. Measured against the Ten Competencies, how does each parent stack up? What is each parent doing, under the circumstances, to maximize the opportunity to raise happier, healthier, better functioning children?

lawyer thinking small.jpg

If a spouse wilfully fails to provide financial information during the discovery phase of a divorce action, one remedy may be an order of preclusion under C.P.L.R. §3126.  Thus, an August, 2010 decision of the Appellate Division, Second Department, in Raville v. Elnomany, affirmed the preclusion of the husband “from offering financial evidence at the hearing on equitable distribution based on his willful failure to comply with discovery.” 76 A.D.3d 520, 906 N.Y.S.2d 586.

But what, precisely, is an order of preclusion from offering evidence?  Is it really what you want?  Is it everything you need?  A brief review of some decisions granting “orders of preclusion” may highlight the open issues even after preclusion is granted.

  • For example, is precluding the husband from offering evidence the same as precluding “testimony?” Casey v. Casey, 39 A.D.3d 579, 835 N.Y.S.2d 277 (2nd Dept. 2007).
  • Is preclusion the same as eliminating the right to cross-examine? Grande v. Grande, 129 A.D.2d 612, 514 N.Y.S.2d 250 (2nd Dept. 1987); cf., Settembrini v. Settembrini, 270 A.D.2d 408, 704 N.Y.S.2d 641 (2nd Dept. 2000).
  • If the husband is allowed to cross-examine, may cross-examination be curtailed if the subject matter involves the very information which the husband failed to produce? Cohen v. Cohen, 228 A.D.2d 961, 644 N.Y.S.2d 831 (3rd Dept. 1996).
  • Does it require that there be an “inference” in favor of the non-offending party? Dolny v. Dolny, 32 A.D.3d 818, 820 N.Y.S.2d 520 (2nd Dept. 2006).
  • Does preclusion from offering evidence necessarily require that financial issues of fact be deemed resolved in favor of the non-offending party? Pearl v. Pearl, 266 A.D.2d 366, 698 N.Y.S.2d 160 (2nd Dept. 1999).
  • Is it the same as permitting the wife “to proceed at trial solely upon her proof of the financial matters.” Is the wife entitled to “a default equitable distribution?” Reed v. Reed, 93 A.D.2d 105, 462 N.Y.S.2d 73 (3rd Dept. 1983).

“Preclusion” can be a very imprecise remedy. Counsel should be careful to request, and the Court should be careful to detail the metes and bounds of the remedy. However, for counsel, a detailed request may be unavailable until there is a clear understanding of the fact issues to be determined and the available proof. This may require delaying the motion; or seeking leave to obtain additional or different relief once more is known.