Divorce: New York

Divorce: New York

Melting Pot (Part 3 of 4): Domesticating the Foreign Child Support Judgment

Posted in Child Support (C.S.S.A.), Counsel Fees, Enforcement of Support and Orders

The third of four decisions this month with an international context was decided by New York County Supreme Court Justice Manuel J. Mendez.

In Bond v Lichtenstein (pdf), decided July 15, 2014, Justice Mendez granted a mother summary judgment in lieu of complaint under C.P.L.R. §3213 domesticating a $570,110.05 Hong Kong judgment for child support arrears.

The parties lived together for approximately one year beginning in April of 2006. The mother is a citizen of the United Kingdom and the father is a citizen of the United States. Not long after the mother found out she was pregnant, the relationship fell apart, and by April of 2007, the parties had separated.

On August 31, 2007, their female child was born in England. The mother currently resides with the daughter in Hong Kong and with another man.

On November 21, 2008, the mother commenced child support and paternity proceedings in England. There was a trial and resulting December 3, 2010 Support Order from the High Court of England.

The parties then entered into a consent summons for the purpose of obtaining a “mirror order” in Hong Kong reflecting the support obligations obtained by the mother in England and vacating the English Order. In November of 2012, the father submitted to jurisdiction in Hong Kong for obtaining the “mirror order” and resolving other related issues.

In May of 2013, the proceeding brought before the High Court of Hong Kong resulted in a four-day trial concerning child support. The father appeared for the trial by video. He submitted evidence and was represented by attorneys. On June 28, 2013, the High Court of Hong Kong, by Deputy High Court Judge, Bebe Pui Ying Chu, rendered an 87-page Opinion.

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

Posted in Agreements and Stipulations, Jurisdiction

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.

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

Posted in Agreements and Stipulations, Jurisdiction

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.

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Child Support and the New Job: Heads You Win; Tails I Lose

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

A parent’s decision to take one step back to later take several steps forward will not prejudice the child while the plan plays out.

So held the Appellate Division, Second Department, in its July 2, 2014 decision in Bustamante v. Donawa, upholding the order of Kings County Family Court Judge Michael L. Katz. That order, in turn, denied the father’s objections to an order of Support Magistrate Nicholas Palos that imputed income to the father when granting a mother’s petition for an upward modification of the father’s child support obligation.

The Support Magistrate based the increase in the father’s support obligation from that contained in a 2008 order on the father’s 2011 annual income of $54,342.00. That was earned by the father from a former occupation as a Traffic Device Maintainer. The father argued that the Magistrate should have used his current annual income of $31,756.40, as reflected in his most recent pay stub arising out of his current occupation as an Emergency Medical Technician.

The Second Department held the father’s contention was without merit. The Court noted that a Support Magistrate may impute income based on the party’s past income or demonstrated earning potential. The Magistrate is afforded considerable discretion and that determination may properly be based upon a parent’s prior employment experience.

Here, the Court held it was appropriate to impute the higher past income to the father where he had voluntarily left his employment.

While a parent is entitled to attempt to improve his vocation, his children should not be expected to subsidize his decision.

Here, there was no discussion of how the mother met the changed circumstances threshold needed to obtain an upward modification of support. Neither was there any suggestion that the father was motivated by anything other than a desire to get ahead.

However, the decision invites the question whether the father will be entitled to some credit or leeway if and when his attempt to better himself pans out. If and when the father’s income exceeds what he would have earned as a Traffic Device Maintainer, will the mother be entitled to still another increase?

Both parties represented themselves.

Being Bound by Statements in Tax Returns and Court Papers

Posted in Equitable Distribution, Evidence

“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.

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The Divorce Life Insurance Trust

Posted in Insurance

A court may order that life insurance be maintained to secure the payment of child or spousal support or the payout of a distributive award. It is not to be an award in an of itself. Its purpose is not to create an additional fund on the death of a party, but rather to secure that support and property payments contemplated by the divorce decree will be made, even on death.

Thus, in its June 20, 2014 decision in Marfone v. Marfone, the Appellate Division, Fourth Department, modified the judgment of Oneida County Acting Supreme Court Justice Joan E. Shkane to reduce the required life insurance from $500,000.

We agree with defendant, however, that the amount of life insurance the court required defendant to maintain with respect to his child support obligations is excessive, and we therefore modify the amended judgment by reducing the amount of that life insurance from $500,000 to $300,000.

Domestic Relations Law §236B(8)(a) authorizes the use of life insurance to secure the divorce payments:

8. Special relief in matrimonial actions.
a. In any matrimonial action . . . the court may also order a party to purchase, maintain or assign a policy of . . . on the life of either spouse, and to designate in the case of life insurance, either spouse or children of the marriage . . . as irrevocable beneficiaries during a period of time fixed by the court. The obligation to provide such insurance shall cease upon the termination of the spouse’s duty to provide maintenance, child support or a distributive award.

Thus, insurance can be ordered to be maintained on the life of either party, to be owned by either party, naming either spouse or the children as irrevocable beneficiaries for a period no longer than the divorce decree payments.

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Divorce: Hard Choices

Posted in Divorce

In this week’s Ted Talk, Ruth Chang discusses hard choices. Soon after finishing Harvard Law School, Dr. Chang regretted her decision and switched paths. She received her doctorate in philosophy at Oxford University, and is now a professor at Rutgers focused on choice, freedom, value and action.

For Dr. Chang, “understanding hard choices uncovers a hidden power each of us possesses.” It would seem that the full use of that power is vital when dealing with divorce.

In any easy choice, one alternative is better than the other. In a hard choice, one alternative is better in some ways, the other alternative is better in other ways, and neither is better than the other overall.

“We also shouldn’t think that hard choices are hard because we are stupid.” Choosing after college between law school and philosophy, Dr. Chang remembers thinking:

If only I knew what my life in each career would be like. If only God or Netflix would send me a DVD of my two possible future careers, I’d be set. I’d compare them side by side, I’d see that one was better, and the choice would be easy.

At the time, Dr. Chang “did what many of us do in hard choices: I took the safest option.” But she learned being a lawyer was not who she was. It’s a mistake to think that in hard choices, one alternative really is better than the other, but we’re too stupid to know which, and since we don’t know which, we might as well take the least risky option.” Even with full information, a choice can still be hard.

For Dr. Chang, making hard choices may best be solved by our  “normative powers,” our “power to create reasons.” You create the reasons to pursue your choices.

We get to exercise our normative power, the power to create reasons for yourself, to make yourself into the kind of person for whom [your decision is the right choice].

Making the hard choice is not dictated by reasons given to us. “Rather, it’s supported by reasons created by us. . . . You might say that we become the authors of our own lives.”

In almost all instances, making the decision to end a marriage is a hard choice. But then making the decision what to do when your spouse tells you, “I want a divorce” is a hard choice as well. You are not handed the DVDs of your alternative lives if you stay married or get divorced; of the alternatives of seeking to win the spouse back, or get revenge, or move on.

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Husband Compelled to File Joint Tax Return?

Posted in Tax Matters, Temporary (Pendente Lite) Relief

Spouses can be compelled to file joint tax returns. Such was among the rulings made by Essex County Supreme Court Justice Robert J. Muller on a motion for pendente lite (temporary) relief made in his May 20, 2014 decision in the divorce action, S.Z. v. C.Z. (N.Y.L.J. June 9, 2014).

The parties had been married for 25 years, when this divorce action was filed in March, 2014. They own 6 parcels of realty including the marital residence on which there is a farm. The wife left the marital residence in December, 2013 with 3 of the parties’ 9 children. 6 of the children are under the age of 21: the 3 who live with the wife, 2 live with husband, and apparently the 6th began living on his own.

Prior to reaching the tax  issue, Justice Muller made rulings on:

  • temporary maintenance for the wife (in which he denied the husband’s request that such be paid in the form of produce, meat, eggs, vegetables, etc., from the family farm);
  • child support for the under-21 6 children;
  • health insurance and expenses;
  • appraisal and counsel fees;
  • access by the wife to personal property left by her at the marital residence; and
  • access to a home equity line that apparently did not exist.

Then, Justice Muller addressed the wife’s request for an order directing the parties to cooperate in the timely filing of a joint income tax return for 2013. Granting that relief, the Court stated:

While the April 15 deadline for filing has now come and gone, defendant indicates that the parties’ accountant has filed an extension for them. This aspect of the motion is therefore granted to the extent that the parties are directed to cooperate in the filing of their 2013 income tax return prior to October 15, 2014.

Comment: It would appear that this aspect of the decision was contrary to law. In Teich v. Teich, 240 A.D.2d 258, 658 N.Y.S.2d 599 (1st Dept. 1997), it was held that compelling a spouse to file a joint tax return is “contrary to Federal tax law, which gives each spouse unqualified freedom to decide whether or not to file a joint return, and beyond the trial court’s equitable powers.” However, the First Department did note that any adverse financial consequences of a spouse’s refusal to sign joint and/or amended returns can be taken into account in distributing the marital property.

Debra A. Whitson, Whitson Law, of Elizabethtown represented the wife. The husband represented himself.

Invalidity of Licenseless Mexican Marriage Calls For Dismissal of New York Divorce Action

Posted in Defenses, Divorce, Statutes, Tax Matters

New York’s Domestic Relations Law §25, enacted in 1907, provides that a marriage is valid, even in the absence of a marriage license, if it was properly solemnized. However, New York County Supreme Court Justice Matthew F. Cooper, in his May 29, 2014 decision in Ponorovskaya v. Stecklow held that D.R.L. §25 could not be used to validate a marriage ceremony that failed to meet the  legal requirements of Mexico where the ceremony was performed. While so holding, Justice Cooper called for the statute to be amended or repealed, and joined the debate on whether Universal Life Church “ministers” could “properly solemnize” marriages.

Justice Cooper’s recitation of the facts merits quotation:

[Ms. Ponorovskaya], who is a clothing designer and business owner in Manhattan, and [Mr. Stecklow], a lawyer, began their relationship in 2004. While in Mexico for a 2009 New Year’s celebration, [Mr. Stecklow] proposed to [Ms. Ponorovskaya] overlooking the Mayan ruins in Tulum. The parties subsequently planned a Mexican destination wedding at the Dreams Tulum Resort & Spa. . . . On February 18th, the couple had a wedding ceremony on the resort’s beach. The ceremony was performed under a chuppah, a canopy under which a couple stands during a Jewish wedding. Certain Hebrew prayers were recited, vows were exchanged, and there was a glass-breaking ritual, as is customary at Jewish weddings.

Despite these traditions, the ceremony was not performed by a rabbi. Instead it was conducted by [Mr. Stecklow]’s cousin, Dr. Keith Arbeitman, a dentist who lives in New York. In 2003, in order to perform a marriage for friends, he became an ordained minister of the Universal Life Church (“ULC”), a distinction easily achieved by paying a fee on the ULC’s website. . . . [A]t oral argument on the motion, [Ms. Ponorovskaya]’s counsel produced a certificate that he printed off the internet certifying that Dr. Arbeitman is indeed a minister in good standing with the ULC. Likewise, during the ceremony Dr. Arbeitman told the audience, “I am an ordained minister — this will be a legal union.”

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

Posted in Defenses, Evidence, Tax Matters

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.

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