Divorce: New York

Divorce: New York

Wife’s TV Home Shopping Was Wasteful Dissipation Of Marital Assets

Posted in Equitable Distribution

In last month’s decision in Lowe v. Lowe, the Third Department upheld subtracting one half of the amount spent by a wife on TV home shopping from her distributive award.

The parties had married in 2005 and had no children together. In February 2012, the husband commenced this action for divorce. Following the non-jury trial, Tompkins County Supreme Court Justice Phillip R. Rumsey ordered the distribution of the marital property, including several bank and investment accounts and the marital residence. The court also ordered that the husband pay the wife $23,000 in counsel fees, as well as $3,000 per month in spousal maintenance for approximately 2 1/2 years. The husband appealed and the wife cross-appealed.

The Third Department upheld Justice Rumsey’s award to the wife of 50% of the appreciation of the husband’s separate property investment portfolio, 401(k), pension and residence. However, offsetting what may have been that very generous percentage of separate property appreciation [comment: no part being attributed to market forces] was Justice Rumsey’s decision to subtract from the wife’s distributive award one half of the total amount the wife spent during the marriage on television home shopping.

The Third Department agreed. The almost $32,000 the wife spent over this seven-year marriage was a wasteful dissipation of marital assets.

It is undisputed that, during the course of the marriage, the wife developed a shopping problem and, despite the husband’s effort to stop her, bought over $30,000 worth of items from television shopping channels. Thus, we find no abuse of Supreme Court’s considerable discretion in reducing the wife’s award by one half of the amount dissipated, or $15,955.

Dirk A. Galbraith, of Holmberg Galbraith & Miller, of Ithaca, represented the husband. Sharon M. Sulimowicz, of Ithaca, represented the wife.

Litigating Prenuptial Agreements Is Going To Get Messier

Posted in Agreements and Stipulations, Counsel Fees, Maintenance

Particularly in the Second Department, the last few years have brought a host of cases threatening the enforceability of prenuptial agreements. To review a few just type “prenup” in the keyword search at right. It’s going to get worse.

New York’s Domestic Relations Law §236(B)(3) provides that prenuptial and other marital agreements executed with proper formalities are valid and may include

(1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will;

(2) provision for the ownership, division or distribution of separate and marital property;

(3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment;

and (4) provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this article.

The December 24, 2014 decision of the First Department in Anonymous v. Anonymous, is a case in point.

In this matrimonial action the wife had sought, among other things, to set aside the parties’ prenuptial agreement.Ruling on several motions, Supreme Court, New York County Justice Ellen Gesmer upheld the validity generally of the the prenuptial agreement, but held the issue of the current unconscionability of the spousal support provision would be resolved at trial.

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Keeping Dads Around After Divorce

Posted in Custody and Visitation

Children in families without fathers in the home are not doomed to failure, or anything close to that. So concludes an article in Scientific American Mind, “Where’s Dad,” by Paul Raeburn of the Knight Science Journalism Tracker, and author of Do Fathers Matter?: What Science Is Telling Us About the Parent We’ve Overlooked.

However, as the article also noted, “The discovery of the father is one of the most important developments in the study of children and families. Our failure to address the question of fathers’ value is more than simply a matter of academic bickering.”

Fathers make unique contributions to their children. “Fatherhood is about helping children become happy and healthy adults, at ease in the world, and prepared to become fathers (or mothers) themselves.”


Fathers are disappearing: fewer dads are participating in the lives of their children now than at any time since the U.S. began keeping records. This shift matters because the effects of a missing father can be profound . . . .

Mothers today continue to perform the majority of primary caregiving tasks (feeding, bathing, comforting) notes science journalist Roni Jacobsonin her Scientific American Mind article, “Build Your Own Family.” Fathers tend to take part in supplementary activities, such as play, which matters less to survival than to cognitive development. For that, the quality of a father’s involvement appears to matter more than the quantity.

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Relocation Clauses Must Specify Radial or Road Mileage

Posted in Custody and Visitation

It is common for divorce settlements and custody agreements to contain “relocation clauses.” These provisions spell out the radius within which the residential custodian will be able to move without first seeking judicial approval. It is a proper subject of agreement between parents. It will almost always be honored, although such a provision can never be binding upon a court’s determination of what is in the best interests of a child.

Such a clause might read:

The parents have established their custody and visitation arrangement to reflect what they believe constitutes the best arrangements to meet their child’s needs to have a continuing and close relationship with both parties. The parties recognize that an arrangement that provided for less contact between the child and each of the parties would not be in the child’s best interests. Based upon the foregoing, the residential custodial parent agrees that prior to the emancipation of the child, he/she will not establish a domicile with the child at any point beyond ____________ miles of _______________.

That distance is often referred to as the “radius.” Relocation clauses must be careful to specify whether the radius is in road miles or “as the crow flies” (radial miles).

In actuality, the concept is one of time, not distance. A parenting schedule is constructed assuming that it will take a certain amount of time for the child to be transported from the residence of the physical custodian to that of the other parent. The parents’ agreement should contemplate the distance between homes as it may relate to dropping a child off at school on a Monday morning, allowing for mid-week visits, etc. Thus, a radius clause that allows for 50 road miles near the Thruway in upstate New York contemplates something very different than 50 road miles on Long Island. The latter trip might take twice as long.

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Father Must Assist With Obtaining Renewal Passport for 10-Year Old Daughter

Posted in Custody and Visitation

A father has been directed to cooperate in obtaining a renewed passport for his now 10-year old daughter. Reversing the order of New York County Family Court Referee Marva A. Burnett in its December 11, 2014 decision in Matter of Noella Lum B. v. Kristopher T.R., the Appellate Division, First Department, directed the father to execute all documents necessary to obtain the renewal passport.

The parenting agreement entered into between the parents in 2007 provided for residential custody to the mother and visitation to the father. The agreement contemplated “air travel” by the child with one parent. It did not prohibit either party from traveling outside of the United States with the child.

The mother previously had traveled internationally with the child, both before and after the parties’ separation, until the child’s passport expired in 2009.

Although the parenting agreement required the parties to execute all documents that may be necessary to give its provisions full force and effect, the father refused to execute documents necessary for the renewal of the child’s United States passport. The mother petitioned the Family Court to compel the father’s cooperation.

Reviewing the evidence at the hearing before Referee Burnett, the First Department held the father failed to demonstrate that there had been a significant change in circumstances warranting modification of the agreement to prohibit international travel. Although the father claimed that relations with the mother had deteriorated and that he feared she would abscond with the child, he acknowledged that the mother had complied with all aspects of the parenting agreement. Moreover, the mother had never threatened to take the child, and had returned from all prior trips with the child, which she had taken with the father’s knowledge and consent, in a timely manner and without incident. Still further, although the father asserted that the mother had family living abroad (which had always been the case), the mother is a citizen of the United States and has significant family connections here.

Indeed, the father characterized the risk of the mother absconding with the child as remote or a 1% chance, and did not object to the child traveling abroad when she turned 12, which would occur three years after the hearing. Moreover, although Referee Burnett’s credibility determinations were entitled to “great deference,” in this case, the Referee’s determination that the mother posed a flight risk based upon, among other things, her two prior applications for relocation, which were made pursuant to the agreement, lacked “a sound and substantial evidentiary basis.” The evidence did not support the Referee’s finding that the mother would permanently remove the child from the country if she obtained the requested passport. (The appellate court further noted that the attorney for the child has at all times supported the mother’s application.)

For a prior discussion and links to forms, see, Passports and International Travel for Children of Divorce.

Madeleine Nisonoff, Esq., of Mallow, Konstam, Mazur, Bocketti & Nisonoff, P.C., of Manhattan, represented the mother. Karen Freedman, Lawyers for Children, Inc., (Shirim Nothenberg of counsel), served as Attorney for the Child.

Divorce Settlements: It’s Not Just What You Say, But What You Don’t Say

Posted in Agreements and Stipulations, Child Support (C.S.S.A.)

It is often said that it is difficult, if not impossible to prove a negative. The concept may be extended to finding the intent of the parties to a contract, and more particularly a divorce settlement agreement

One would think a divorce settlement agreement would provide for all of the rights and obligations of a divorcing couple arising from their marriage, children, and divorce. So what happens when a subject is not specifically covered? If the agreement does not state that a specific child support-related expense is to be paid by the non-custodial parent, does that mean that that parent does not have such an obligation? Is an agreement required to specifically provide that any obligation not specifically stated does not exist?

Take the November 26, 2014 decision of the Appellate Division, Third Department, in Malone v. Malone. In that case, the Third Department upheld the denial of an ex-wife’s requested upward modification of the ex-husband’s child support because the underlying divorce settlement agreements were not unfair or inequitable when entered into; there was no proof the children’s needs were not being met (pardon the double negative); and there was no other basis for an upward modification. Doing so the Third Department affirmed the holding of Rensselaer County Supreme Court Acting Justice Peter A. Lynch.

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Temporary Maintenance All But Denied to Wife Able to Work and Who Had Lived With Another Man

Posted in Temporary (Pendente Lite) Relief

Is a wife entitled to formula temporary maintenance in a divorce action, merely because she is the less-monied spouse? No, says New York County Supreme Court Justice Matthew F. Cooper in his October 22, 2014 decision in Joseph M. v. Lauren J.

In this matrimonial action, the wife sought temporary custody of the parties’ child, as well as an order awarding her pendente lite maintenance, child support, and counsel fees. Although the custody applications were premature, the financial issues were ripe for determination.

In many ways, this case highlights the tension that exists when imposing a statutorily prescribed formula for awarding temporary maintenance on a determination that has traditionally been left to the sound discretion of a court.

The parties were married in 1997 and had one child, a daughter, born in 2009. The couple separated eight months after the child’s birth when, in May 2010, the wife left the marital residence in Yonkers to live with a man with whom she had been involved since before the pregnancy. The wife continued to reside with this man and was largely supported by him for almost four years. They recently stopped living together because their church objected to them continuing to cohabit while she was still married to the husband. As a result, the wife had been living for the last few months in a hostel in upper Manhattan.

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Another Prenup Bites the Dust, Maybe

Posted in Agreements and Stipulations

The November 12, 2014 decision of the Appellate Division, Second Department, in Bibeau v. Sudick reversed the granting of summary judgment upholding the validity a 2000 prenuptial agreement, remanding the matter for a hearing on that issue.

In September 28, 2000, two days before their wedding, the 70-year old future husband and the 38-year old future wife executed a premarital agreement. It provided that in the event of a divorce, the wife would receive, in lieu of maintenance, support, and equitable distribution, the sum of $25,000 for each year of the marriage. The parties also agreed to waive their interest in the elective share of each other’s estate, and to make no claim to property titled in the other’s name.

According to financial statements attached to the premarital agreement, the future husband had assets of more than $10,000,000, while the future wife had assets of approximately $170,000. The agreement was signed in the office of the husband’s attorney, in the presence of another attorney who was purportedly representing the wife.

At the time of the marriage, the wife, who had a background in marketing works of fine art to corporations, had recently opened an art gallery in California. She closed this business and relocated to Pine Bush, New York, in order to reside with the husband in preparation for their marriage, and assist him in his business endeavors. These included real estate development, as well as breeding thoroughbred horses and managing polo ponies.

In October, 2010, within days of New York’s adoption of no-fault divorce, the husband commenced this action for divorce. There were no children of the marriage.

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Appellate Reversals of Custody Decisions

Posted in Custody and Visitation

Two of three November 5, 2014 custody decisions of the Appellate Division, Second Department, reversed Family Court determinations.

In the only affirmance in Mondschein v. Mondschein, the Second Department upheld the order of Westchester County Family Court Judge David Klein which, after a hearing, granted a father’s petition to modify the custody provisions of the parties’ divorce (2011) stipulation of settlement, awarding the father sole legal and physical custody of the parties’ two younger children, with supervised visitation to the mother. Affirming Judge Klein, the Second Department noted:

Since custody determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the Family Court’s findings. Therefore, its findings should not be set aside unless they lack a sound and substantial basis in the record.

Here, contrary to the mother’s contention, the appellate court found that Judge Klein had properly considered the totality of the circumstances, and that the record supported his determination that there had been a sufficient change in circumstances requiring a change in custody to protect the best interests of the parties’ two younger children. That record included the hearing testimony and the recommendation of the court-appointed forensic evaluator.

In Burke v. Cogan, the Second Department reversed the determination of Suffolk County Family Court Judge Martha Luft that had dismissed the petition of a mother to modify a prior custody order by awarding her sole residential custody of the parties’ 13 year-old child. The appellate court awarded the mother such custody.

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