Archives: Abuse of Discretion

In its September 18, 2013 decision in Abramson v. Gavares, the Second Department briefly reviewed the interplay between prenuptial agreements and interim awards in divorce actions.

In this case, the parties were married in 2004 and hade one child, born in 2006. This divorce action was commenced in 2009 [before the 2010 laws on counsel fees and temporary maintenance].

On the wife’s motion for various relief pendente lite, Nassau County Supreme Court Justice Margaret C. Reilly had awarded the wife $4,250 per month temporary child support, $1,000 per month in temporary maintenance, and a $15,000 interim counsel fee. The husband was also directed to pay 100% of the costs of the court-appointed forensic evaluator and the attorney for the parties’ child.

On appeal, the husband challenged certain parts of the award on the basis of the prenuptial agreement entered into by the parties. The Second Department upheld the awards of child support and counsel fees, but struck the award of temporary maintenance.

Continue Reading Second Department Approves Interim Counsel Fee in Excess of Prenuptial Agreement’s Cap, But Reverses Award of Interim Spousal Maintenance

Particularly in light of the allegations that the mother threatened to retaliate against her 14-year old daughter’s testimony supporting the father, it was an abuse of discretion for the trial Judge to require the daughter to testify in open court in this custody modification proceeding. The girl should have been interviewed by the judge in chambers without her parents and their lawyers being present.

That sentiment was noted by the Appellate Division, Third Department, in its June 27, 2013 decision in Casarotti v. Casarotti that affirmed Madison County Family Court Judge Biagio DiStefano‘s order changing primary physical custody of the girl from the mother’s residence in New York to the residence of her father in California, despite the presence of the daughter’s 18- and 20-year old siblings in New York.

In this case, the parties were the divorced parents of two daughters (born in 1992 and 1998) and a son (born in 1994). The younger daughter was the only subject of this proceeding.

The family had lived together in northern California until the parties’ separation in 2000. At that time, the mother moved with the three children to New York. The parties later consented to joint custody of the children in a stipulation that was incorporated, but not merged into their 2007 judgment of divorce. In accordance with the stipulation, the mother maintained primary physical custody of the children in New York. The father, who remained in California, was granted liberal parenting time during weekends, winter holidays and summer vacations.

In July 2012, the father commenced this custody modification proceeding, seeking primary physical custody of the child. He alleged that the two older children had moved out of the mother’s house, the mother was emotionally abusive to the youngest child, and that the child now wanted to live with him in California.

Judge DiStefano held a hearing at which the parties, the 14-year-old child and her 20-year-old sister testified. Judge DiStefano granted the father’s petition and awarded him primary physical custody, while otherwise maintaining joint custody.

Continue Reading 14-Year-Old Daughter Should Not Have Been Made to Testify in Front of Parents in Custody Modification Proceeding