Service by Facebook of a father’s petition to terminate child support was directed by Richmond County Family Court Support Magistrate Gregory L. Gliedman in a September 12, 2014 decision in Matter of Noel B. v. Maria A. (NYLJ link).

The father filed that application to terminate child support based on the alleged emancipation of his son.

The father was unable to effect service of court papers upon the mother by normal means. He submitted an affidavit that the mother was unknown to the current occupant of the the mother’s last known address. The father called and sent text messages to his 22-year old daughter to ask the mother’s location, but that no one answered the call or replied to his texts and voicemail. He also called and sent a text message to his son (the subject child on the instant petition) requesting that information, but again there was no reply of any kind. The father also did a Google search, but was unable to find any location for the mother.

Magistrate Gliedman noted that the Support Collection Unit (“SCU”) to which the father mailed his support checks still had that same last known address on file for the mother, meaning that all correspondence and communication with respect to the funds she was receiving for child support were being  sent to that address. The magistrate further noted that the mother provided that same address to the court when she sent an electronic testimony application to the court in March, 2013 in connection with a prior matter between the parties.

The father told the court that the mother maintains an active social media account with Facebook. The mother’s current spouse maintains her own Facebook account, and has posted photos that have been “liked” by the mother as recently as July, 2014.

Magistrate Gliedman described Facebook as a social networking website that allows its users to interact with friends, relatives, acquaintances and individuals with common interests. Due to its online nature, there are no geographic limitations on Facebook — people with whom an individual interacts with on Facebook can be as close as the house next door or as far away as a continent on the other side of the world.

Continue Reading Court Authorizes Facebook Service Of Child Support Petition

In the fourth “international” decision this month, Westchester County Supreme Court Justice Paul I. Marx dismissed a divorce action over which the Court had jurisdiction, deciding, however, that Nicaragua was the better forum. In L.A.B. v. B.M.decided July 9, 2014, the importance of the majority of witnesses and assets being in Nicaragua overcame the wife’s choice of court.

The wife was born and raised in Nicaragua, holding only a Nicaraguan passport. The husband is a U.S. citizen with a U.S. passport. The parties met in Nicaragua and were married in Nicaragua in a civil ceremony in 2003 and a religious ceremony in 2004. After they were married, the parties lived together in the husband’s Manhattan apartment. The parties have two children, the first born in Manhattan; and the younger, born in Nicaragua.

Shortly after the birth of their first son, the wife moved back to Nicaragua. She remained there as a homemaker residing with the parties’ children in one of the parties’ properties in Managua, Nicaragua. The husband is a Risk Manager at Credit Suisse Securities, LLC, residing in a condominium in White Plains, New York.

According to the wife, the husband obtained permission from his employer to work remotely from Nicaragua for several days each month.This allowed The husband to travel each month between New York and Nicaragua, where the wife and the parties’ child (and later children) resided.

The parties owned three properties in Nicaragua. In addition, the husband owned a condominium in Westchester. The parties established a corporation in Nicaragua to purchase two of their Nicaraguan properties and proceeded to build homes on those two properties.

The parties’ marital difficulties began in Fall 2013. In October, the wife notified her husband of her desire to divorce. On December 23, 2013, she wife filed a divorce summons with notice in New York asserting no-fault grounds. On January 13, 2014, the husband filed for divorce in Nicaragua.

The wife moved for an interim award of counsel fees. The husband cross-moved to dismiss the action, arguing that New York was without jurisdiction to hear this divorce action under DRL §§ 230 and 231 and that New York was an improper and inconvenient forum (forum non conveniens).

Justice Marx first held that the court had both personal and subject matter jurisdiction; it had the authority to decide the divorce issues. The residency requirements of D.R.L. §230 had been met. It was undisputed that the parties lived together as husband and wife in Manhattan for approximately three years. The parties further agreed that the wife was not a New York resident.

Continue Reading Melting Pot (Part 4 of 4): Although New York Had Jurisdiction, Case Dismissed Because Nicaragua Was Better Forum

The second of four decisions this month with an international flavor was also decided by New York County Supreme Court Justice Ellen Gesmer.

In M v. M, 2014 N.Y.Misc. Lexis 3201, decided July 3, 2014, Justice Gesmer again voided a marital agreement, this time applying the laws of Spain and the Dominican Republic.

On June 27, 2001, one year and five months before their marriage, the parties signed an Agreement in Madrid, Spain, that purported to govern the disposition of property in the event of marriage and divorce. As with the Agreement in J.R. (see yesterday’s blog post), it provided that the parties would marry in a system of absolute separation of property.

At the time of the Agreement, the wife, born in the Dominican Republic, had Italian citizenship and was a domiciliary of Spain. The Husband is a citizen of Spain.

The parties were married in the Dominican Republic on December 12, 2002. Their marriage certificate, and the certification issued by the Office of Vital Statistics from the local government district, so listed the husband as a Spanish citizen, domiciled in Spain, and the wife as an Italian citizen, domiciled in Spain.

The wife commenced this divorce action in New York in 2012. Seeking now to invalidate the Agreement, the wife alleged that she never read the Agreement before signing it, that no one else read it to her, and that no formalities, particularly an oral recitation of the Agreement, were conducted when it was signed. She claimed that the husband brought her to the office of his attorney, and asked her to sign an accounting document drafted by his attorney to help him protect assets from business dealings. She claimed she never saw the document before the evening she signed it, and never saw or discussed it with the husband again until he raised it after commencement of this action. The husband disputed the wife’s claimed lack of awareness of the contents and significance of the Agreement.

Continue Reading Melting Pot (Part 2 of 4): Prenuptial Agreement Voided Applying the Laws of Spain and the Dominican Republic

Among the challenges for the matrimonial bench and bar is the need to become instantly familiar with any type of business and any family situation. Applying the ever-changing New York family law to matters routine and novel is a Herculean task, worthy of  Dwayne “the Rock” Johnson’s IMAX 3D movie opening this weekend.

New York’s cosmopolitan population often presents still another layer of law and fact through which our judges must navigate. Four decisions this month reveal the breadth and complexity of those international issues.

In a July 21, 2014 decision in J.R. v. E.M.New York County Supreme Court Justice Ellen Gesmer decided to apply New York law to set aside a marital agreement for its failure to meet New York formalities, although the procedure followed in the Spanish Consulate where it was signed may have been far better able to achieve the goals New York’s formalities were designed to achieve.

On March 3, 2004, the day after they were married in New York City, the parties signed a “Matrimonial Property Agreement” before the Spanish Consul at the Consulate in New York City.

The wife is a Peruvian citizen; her husband is a Spanish citizen. Justice Gesmer noted that both parties are well-educated and accomplished native Spanish-speaking professionals, both currently employed by the United Nations.

After commencing her divorce action in 2013, the wife moved to set aside the marital agreement. She claimed that although the Agreement had been drafted before the parties went to the Consulate, she did not first see it until arriving at the Consulate on March 3, 2004.

Continue Reading New York: The Divorce Melting Pot (Part 1 of 4)

Not according to Richmond County Civil Court Judge (and Acting Suprme Court Justice) Philip S. Straniere, seemingly running afoul of a contrary body of case law, particularly in the Second Department.

Small Claims Court proceedings may well be the only practical way to redress relatively modest, but often important breaches of divorce settlement agreements as to matters of support and property. Such proceedings are quick, inexpensive, can be pursued without lawyers, and do substantial justice. Eliminating Small Claims Court as a proper forum for such relief would often leave parties without a reasonable remedy.

In his February 19, 2014 decision in Pivarnick v. Pivarnick, Judge Strainiere, held that Small Claims Court was without subject matter jurisdiction to enforce a divorce settlement agreement.

Doing so, he vacated an arbitrator’s $4,000 award to an ex-wife for counsel fees she incurred in connection with her submission to the Supreme Court of a proposed Qualified Domestic Relations Order to implement a division of the ex-husband’s pension and her defense of the ex-husband’s motion to dismiss that proposed QDRO. The ex-wife had cross-moved for sanctions “in the form of ‘attorneys’ fees for his engagement in frivolous conduct.’” Those post-divorce Supreme Court submissions were resolved by a so-ordered stipulation under which the entitlement of the ex-wife to share in the ex-husband’s pension was restated. No reference in the stipulation was made to the wife’s “attorneys’ fee claim” by cross-motion.

Thereafter, the ex-wife sought her counsel fees in Small Claims Court. The arbitrator had awarded the claimant legal fees in the amount of $4,000.00 and dismissed the defendant’s counterclaim for his own counsel fees.

Continue Reading Does Small Claims Court Have Jurisdiction to Resolve Divorce Settlement Agreement Disputes?

Handshake 1.jpgParticularly when it comes to agreements fixing child support obligations, “shaking on it” is simply not enough.

Both the Domestic Relations Law and the Family Court Act authorize parents to enter agreements which establish their child support obligations. DRL §§236B(3) and 240(1-b)(h) and FCA §413(1)(h) set out many requirements for such agreements.

Nothing suggests that modifications of such agreements are any less prescribed. Indeed, a “belt and suspenders” approach calls for nothing less than a fully-restated support obligation agreement to implement the slightest change to which parents agree.

Consider the March 29, 2012 decision of the Appellate Division, Third Department, in Hirsch v. Schwartz. The parties’ 2007 separation agreement was incorporated into and survived their 2009 judgment of divorce. It required the father to pay 96% of all child-care expenses for the parties’ two children. Shortly after the divorce, the mother sent the father a letter offering to  reduce the father’s child-care expenses from 96% to 75%. Although the father did not sign and return the letter, he made at least two full reimbursement payments and several partial payments in the months that followed.

The mother subsequently commenced a Saratoga County Family Court proceeding to enforce the child support provisions of the original judgment of divorce. The father argued that the mother’s letter offer served to modify his support obligations and that the terms of this subsequent agreement should be enforced. Following a trial, the Support Magistrate found that the letter offer did constitute a valid modification of the parties’ separation agreement; the father’s child-care share of expenses was reduced to 75%. However, upon the mother’s written objections, Family Court Judge Gilbert Abramson concluded that the Support Magistrate lacked the authority to enforce the terms of the purported modification agreement. Therefore, the original provisions of the judgment of divorce concerning the father’s child-care obligations controlled.

The Third Department affirmed, holding that the Family Court, as a court of limited jurisdiction, may only enforce or modify child support provisions contained in a valid court order or judgment. Thus, even assuming that the mother’s letter offer constituted a valid modification of the parties’ separation agreement, the Family Court “does not have subject matter jurisdiction [to] enforce the amended agreement which stands as an independent contract between the parties.”

It is noted that the Appellate Division, Second Department, in its April 24, 2012 decision in Tammone v. Tammone, also held that “the Family Court did not have jurisdiction to make a declaration as to the validity of an alleged oral modification of a separation agreement.”

The Third Department in Hirsch did not discuss whether the father might have a separate contract remedy enforceable in Supreme Court to recoup any “over-payments.” However, perhaps the lesson to be learned is that nothing less than a fully-restated court-approved child support agreement is sufficient to put into effect the slightest of modifications. Thus, among other provisions, the restated modification agreement should:

  • be in writing;
  • be signed by the parties;
  • be acknowledged before a notary public;
  • include a provision stating that the parties were advised of the provisions of the CSSA (Child Support Standards Act) and that the basic amount of child support provided for in the CSSA would “presumptively result in the correct amount of child support to be awarded”;
  • set forth the amount that the basic child support obligation would have been and the reasons why the parties may not have provided for the CSSA amount in their agreement or stipulation;
  • contain opting-out language limiting future modifications;
  • contain recitations regarding enforcement methods; and
  • contain, or at least reference and reaffirm all other related agreement provisions such as emancipation, health insurance and expenses, child care and college.

Then, the agreement should be submitted, on consent, to the Supreme Court to obtain a modified divorce judgment or order of support.

Yes, all this means that lawyers, for both parents, must be re-involved. However, nothing less will give peace of mind.

Anne Reynolds Copps of Albany represented the father. Jennifer P. Rutkey, of Gordon, Tepper & DeCoursey, L.L.P., of Glenville represented the mother.