Divorce: New York

Divorce: New York

Journalist Privilege Precludes Divorce Action Discovery From Author

Posted in Discovery

A party in a divorce action who seeks to compel a journalist to turn over information or documents must meet an extraordinary burden.

So held New York County Supreme Court Justice Donna M. Mills in an August 21, 2014 decision Matter of Hamm (Zuckerman).

Petitioner, Sue Ann Hamm, and her husband, Harold Hamm, are parties to an Oklahoma divorce action. By this application, Ms. Hamm sought to enforce a subpoena issued to New-York based journalist Gregory Zuckerman of the Wall Street Journal, author of the book, The Frackers: The Outrageous Inside Story of the New Billionare Wildcatters, in which Mr. Hamm is featured. Mr. Zuckerman cross-moved to quash the subpoena and for a protective order preventing Ms. Hamm from deposing him and obtaining the materials demanded.

According to Wikipedia, in 2012 Hamm was ranked by Forbes magazine as the 30th richest person in America and 76th richest person in the world, with a net worth estimated at $11 billion, a figure increased to $17 billion in early 2014. In 2012, presidential candidate Mitt Romney named Hamm as his energy advisor, and thereafter Hamm made substantial monetary and advisory contributions to the election effort.

Here, Ms. Hamm sought documents and testimony from Zuckerman about topics in the book, arguing that Mr. Zuckerman had unique insight and knowledge concerning a pivotal issue in the divorce case of whether or not Mr. Hamm’s efforts, skills or expended funds contributed to the value of the marital estate. Ms. Hamm provided the Court with excerpts from the book which indicated that it was based on interviews with numerous witnesses, including her husband, who had personal knowledge of material facts about those contributions.

Continue Reading

Mother Leaving Hasidic Community Denied Custody of Children

Posted in Custody and Visitation

When making a decision in custody matters, the primary concern is the best interests of the child. The courts may consider religion as one of the factors in determining the best interests of a child, but religion alone may not be the determinative factor. New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other.

So held the Appellate Division, Second Department, in its August 20, 2014 decision in Matter of Gribeluk v. Gribeluk,affirming Family Court Judge Sherri L. Eisenpress’ order awarding custody to the father. The appellate court noted that contrary to the mother’s contentions, Judge Eisenpress did not rely solely on religion and the mother’s decision to leave the Hasidic Jewish community in making the determination to award the father custody of the parties’ children.

Judge Eisenpress had expressly stated that it passed no judgment on either parent’s religious beliefs and practices. Rather it was the children’s need for stability, and the potential impact of uprooting them from the only lifestyle which they had known, that were important factors in making the custody determination.

Judge Eisenpress also found the mother’s repeated allegations of sexual abuse of the children by the father to have been unfounded, which subjected the children to numerous interviews and examinations, casting doubt upon the mother’s fitness to be the custodial parent.

Although the children expressed a preference to reside with the mother, and the attorney for the children advocated awarding custody to the mother, the children’s preference and the recommendation of the attorney for the children were not determinative and did not usurp the judgment of the Family Court.

Considering the totality of the circumstances, there was a sound and substantial basis in the record for the Family Court’s determination that it was in the best interests of the children to award custody to the father.

Ilene Kim Graff , of counsel to Eric Ole Thorsen, of New City, represented the father. Janice Mac Avoy, of Fried, Frank, Harris, Shriver & Jacobson, LLP, of Manhattan, represented the mother. Veronica J. Young, of New City, served as Attorney for the Children.

Husband Denied Millions in Separate Property Credits Because of the Definition of “The”

Posted in Agreements and Stipulations, Equitable Distribution

It depended on what the definition of “the” was.

In Babbio v. Babbio, the Appellate Division, First Department, on July 17, 2014 defined “the” and otherwise interpreted a prenuptial agreement in ways that cost a husband millions of dollars of separate property credits he sought in his divorce action.

Under the parties’ agreement, marital property, generally, was to be divided equally. However, the agreement also provided:

[i]n the event of an Operative Event, Marital Property [as defined elsewhere in the agreement] shall be distributed equally between [the parties] in accordance with the following provisions, except that if the parties have been married for ten (10) years or less and either party is able to identify One Million ($1,000,000) Dollars or more of Separate Property that was used for the acquisition of the Marital Property, that party shall first receive the amount of his or her contribution of Separate Property prior to the division of the remaining value of such property, if any. [emphasis added]

“Operative Event” was defined, inter alia, as “the delivery by [either party] to the other of written notification … of an intention to terminate the marriage.” Here, the Court held that it was the date of the notification, and not the date of distribution that was determinative. As a result, the husband became entitled to the benefits of this provision.

However, construing the parties’ prenuptial agreement in what the Court viewed as being in accord with the plain meaning of its terms, and interpreting every part of the agreement “with reference to the whole”, the First Department found that the party seeking the credit must have contributed $1 million or more of his or her own separate property directly to the acquisition of the particular item of marital property at issue.

Continue Reading

Ex-Wife Living with Parent is Not Cohabitation For Purpose of Terminating Maintenance

Posted in Agreements and Stipulations, Maintenance

The parties were divorced in August, 2012 pursuant to a judgment that incorporated a September, 2008 Memorandum of Understanding. The Memorandum provided for maintenance payments to the wife in a specified sum until, as pertinent here, “[the wife] cohabits with an individual for any period in excess of 75 days within any 6-month period of time.”

In October 2012, the ex-husband moved to cease making these payments based upon the wife’s alleged cohabitation with her mother and stepfather. The wife opposed the motion and cross-moved for sanctions. Albany County Supreme Court Justice Gerald William Connolly denied both motions. The husband appealed, and the Third Department in its July 10, 2014 opinion in Vega v. Papaleo affirmed.

As Justice Connolly noted below, the agreement failed to provide any definition of the term “cohabits.” The ex-husband contended that the provision unambiguously stated the parties’ intention, and that “cohabits” should be read in this context to mean merely that the wife reside with any other person for the requisite time period, with no showing of any sexual, romantic or economic relationship required. However, the Third Department held Justice Connolly properly rejected this argument, finding that the term could not be fairly read to encompass the husband’s broad interpretation.

The Memorandum was an agreement that remained “a separate contract subject to the rules of contract interpretation.” The Third Department’s analysis of disputed terms was based upon the plain meaning of those terms, as well as “’consideration of whatever may be reasonably implied from that literal language,’”

Most notably, the parties entered into this agreement following the decision of the Court of Appeals in Graev v Graev (11 N.Y.3d 262, 869 N.Y.S.2d 866 [2008]), in which the Court carefully reviewed several potential definitions of the term “cohabitation.” The Court held that neither case law nor dictionary usage provided an authoritative or plain meaning. However, while no single factor – such as residing at the same address, functioning as a single economic unit, or involvement in a romantic or sexual relationship – is determinative, the Court of Appeals found that a “common element” in the various dictionary definitions is that they refer to people living together “in a relationship or manner resembling or suggestive of marriage.”

[In the absence of an agreement on this issue Domestic Relations Law §248 would require proof that the ex-wife habitually lived with another man and held herself out as his wife before terminating court-ordered maintenance.]

There is simply no authoritative definition or customary usage of the term that could include residing with a parent. The husband’s assertion that the phrase “with an individual” informs the term “cohabits” in such a manner as to omit a requirement of any showing of an intimate or romantic relationship is wholly contrary to the governing precedent, and is unavailing.

As Justice Connolly correctly found, the husband did not allege that the wife has lived with another individual in any relationship remotely resembling or suggestive of a marital bond, nor did he show that anything in the Memorandum revealed an intention to define cohabitation as a shared address in the absence of such a bond.

David H. Sawyer, Esq., of Albany, represented the ex-husband. Rosemary Nichols, Esq., of Watervliet, represented the ex-wife.

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

Posted in Jurisdiction

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 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.

Continue Reading

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.

Continue Reading

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.

Continue Reading

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.

Continue Reading