In its October 20, 2015 decision in El-Dehdan v. El-Dehdan, New York’s highest court restates the elements of civil contempt, the burdens of proof needed to support a finding, and the effect of the assertion of a Fifth Amendment privilege against incrimination. Doing so, the Court of Appeals affirmed a 2013 decision of the Appellate Division, Second Department, which in turn upheld the finding of civil contempt made by Kings County Supreme Court Justice Eric I. Prus.

In January 2010, an Order to Show Cause was signed to bring on the wife’s motion to hold the husband in contempt for having violated a 2008 order that supposedly restrained the transfer of assets. The husband had transferred certain parcels of realty. In addition to scheduling a hearing on the contempt motion, a Temporary Restraining Order was issued directing the husband to deposit immediately with the wife’s attorney the sum of $950,000.00 “which is the sum of money he purportedly received from the transfer of [the property] 171 Ainslie Street, Brooklyn, New York and 64-17 60th Road, Maspeth, New York, minus the money paid for [the] real estate broker, transfer taxes and payment of the underlying mortgage.” The husband was personally served with this Order to Show Cause.

As it turns out, the 2008 order did not, in fact, prohibit the transactions in which the husband engaged. However, here, the husband was not found in civil contempt for having violated the 2008 order, but for violating the Temporary Restraining Order contained in the January, 2010 Order to Show Cause that looked to preserve marital assets and the status quo while the court considered whether the husband violated the 2008 order.

Continue Reading Court of Appeals Restates Civil Contempt Rules

Once again, it has been made clear that where either or both spouses have assets or liabilities at the date of marriage, it is foolhardy (or at least imprudent) to enter the marriage without a prenuptial agreement and/or the assembly of proof of the extent, nature and value of those assets or liabilities.

Take the January 8, 2015 decision of the Appellate Division, Third Depatrtment, in Ceravolo v. DeSantis. In that case, the parties were married in July, 1996. The wife commenced the action for divorce in June, 2010. Acting Albany Supreme Court Justice Kimberly O’Connor determined, among other things, that the marital residence, which had been purchased by the husband prior to the marriage, was marital property and awarded the wife, among other things, half of its value. The husband appealed.

The Third Department agreed with the husband that Justice O’Connor erred in classifying the marital residence as marital property. Marital property is defined as “all property acquired by either or both spouses during the marriage” (Domestic Relations Law §236[B][1][c]), while “property acquired before marriage” is separate property (D.R.L. §236[B][1][d][1]).

Title is a critical consideration in identifying the nature of real property acquired before the marriage. The circumstances surrounding the purchase of the residence and the parties’ intent relative thereto are irrelevant to the legal classification of the residence as separate or marital property.

Here, the husband purchased the marital residence in January 1994 — 2½ years prior to the parties’ marriage — paying $130,000 of his own funds and borrowing an additional $100,000 from his father, secured by a note and mortgage. Although the wife contributed $30,000 of her separate funds to the initial purchase of the residence, the husband took title to the property in his name alone.

Continue Reading Title Controls Premarital Contributions To The Acquisition and Expenses of Property


The Second Department has imposed what may be an impossible burden of proof needed to correct a mathematical miscalculation (the alleged mutual mistake) in a divorce settlement agreement. That is the effect of the March 19, 2014 decision  in Ha
ckett v. Hackett. 

After 22 years of marriage, the husband commenced an action for a divorce in 2005. A year later, the parties executed a written settlement agreement, which was incorporated, but not merged into their judgment of divorce.

Under the terms of the settlement agreement, the wife received the marital residence, which the parties estimated to be worth $465,000, and she assumed responsibility for repayment of a first mortgage and a home equity loan with combined outstanding balances of $195,124. The husband retained sole ownership of his restaurant business, which had an appraised value of between $360,000 to $385,000, but which the parties agreed to value, for purposes of their settlement, at only $325,000. The wife also agreed to waive valuation of the husband’s certification as a public accountant, which he acquired during the marriage. “Schedule A” to the divorce settlement agreement listed the dollar values of the assets being allocated to each party. The settlement “purportedly” [the Court’s word] equalized the division of assets by requiring the husband to pay the wife $19,336.

Approximately two years later, the ex-husband commenced this action, seeking to reform the settlement agreement on the ground that an alleged mutual mistake had resulted in the unequal division of the marital assets. He alleged that the settlement agreement contained a “computational error” on Schedule A. As a result the wife’s share of the marital assets was undervalued, resulting in a windfall to her in excess of $100,000. The husband maintained the expressed intent of the agreementcertain was to equally divide the parties’ assets.

Continue Reading “Clear and Beyond Doubt” is Burden of Proof for Correction of Mutual Mistake in Divorce Settlement Agreement

Whether the payment of union dues is to be deducted for the purpose of determining C.S.S.A. income is to be decided on a case by case basis. Rejecting the deduction in S.H. v. S.H., a June 17, 2013 opinion withdrawn from publication, Supreme Court Clinton County Acting Justice Timothy J. Lawliss held that the father failed to meet his burden to show that those dues did not reduce his personal expenses.

In this divorce action, the father was employed at a union plant and paid monthly union dues to the United Steel Workers.

This opinion concerned only whether or not union dues paid by the father should be deducted from the father’s gross income prior to calculating the father’s income for child support purposes.

Domestic Relations Law §240(1-b) sets forth the methodology the Court must follow to determine the non-custodial parent’s child support obligation. Pursuant to D.R.L. §240(1-b)(b)(5), income for support purposes shall mean, but shall not be limited to, the sum of the amounts determined by the application of clauses (i), (ii), (iii), (iv), (v) and (vi) of that sub-paragraph, reduced by the amount determined by the application of clause (vii) of that sub-paragraph.

Union dues are not a specifically allowed deduction under D.R.L. §240(1-b)(b)(5)(vii), nor does the subsection contain a catch all “other” category leaving deductibility to the Court’s discretion. The question before the Court, then, was whether or not union dues qualify as a deduction under the only possible category: “unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures” (subsection [vii][A]).

Continue Reading Union Dues Do Not, Here, Reduce Income For C.S.S.A. Purposes

H shocked at W shopping.jpgWhen Sally Field won her second Oscar in 1984, her acceptance speech included the line often now misquoted as “you like me, you really like me.” Nancy Alper might respond to the Second Department, “you hate me, you really hate me.”

In its October 12, 2010 decision in Alper v. Alper, that court affirmed the trial decision of Kings County Supreme Court Justice Eric Prus, which awarded Mrs. Alper 0% of the marital assets.

In the Alper’s 20-year childless marriage, during which the parties were separated for 10 years, both parties worked, but Mrs. Alper spent her money on herself and her daughter of a prior marriage.  We are not told how much the parties earned, or of the decadence of their purchases.

Nevertheless, it was only last year that the Court of Appeals held that the parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected.  Courts should not second-guess the economic decisions made during the course of a marriage. See, Mahoney-Buntzman, 12 N.Y.3d 415, 421, 881 N.Y.S.2d 369 (2009), holding that one spouse may not recover for the money the other spouse spent on required support for a prior spouse and child.

Here, we are told Mrs. Alper contributed little, if any, financial support to the marriage, contributing nothing “to the purchase, and only minimally to the maintenance of the marital home.”  Accordingly, she was awarded no interest in that residence.  Moreover, as Mrs. Alper failed to demonstrate “the manner in which her contributions resulted in the increase in value and the amount of the increase which was attributable to her efforts,” Mrs. Alper was awarded no part of the appreciation in value in her husband’s pre-marital country home.

Also, as Mrs. Alper failed to prove whether her husband’s cash and securities were separate or marital property [doesn’t the burden rests with the titled spouse to rebut the presumption that property is marital? Fields, 15 NY3d 158, 163, 905 NYS2d 783, 785 (2010)], she was awarded no part of those assets.

Finally, as Mrs. Alper failed to prove the value of a parcel of vacant land, concededly marital property, she was not entitled to a distributive award.

Perhaps it is naive to think that the appellate decisions should pave the way towards minimizing conflict, generating guidelines to assist resolution by agreement.  This decision foreshadows the opposite; enhancing the ill will between parties as they challenge the value to the marriage of each other’s choices.

house upside down.jpgIt should have been a dead giveaway.  Court of Appeals Judge Victoria Graffeo warned us that in Fields v Fields (PDF), New York’s highest court was about to apply public policy principles to “unique facts.”  The result: a decision likely to keep Equitable Distribution litigators busy for years to come.

8 years into the Fields’ 35-year marriage, Mr. Fields bought a 10-apartment Manhattan townhouse for $130,000.  For the $30,000 purchase down payment, Mr. Fields used a $15,000 gift from his grandparents, and a $15,000 loan from those grandparents, which Mr. Fields’ mother agreed to repay.  Six days later, Mr. Fields conveyed a half interest in the property to his mother.  The $100,000 balance of the purchase was paid using two mortgages.

There the parties resided, paying rent to the partnership of Mr. Fields and his mother. The Fieldses, however, lived in separate apartments beginning 5 years after purchase.

  • Would the holding have been any different had the Fieldses not lived there?
  • What if the purchase was purely for investment and managed by others?
  • Does purchasing stocks on margin using an inheritance render the property marital?

The Court affirmed that the townhouse was marital property on the date of its purchase.  Because the husband financed a portion of the townhouse, it was not acquired “in exchange for separate property.”  As a result, the husband was only entitled to a dollar-for-dollar credit for his down payment contribution.  Timothy Tippins, in his September 2, 2010 New York Law Journal article, has characterized this decision as “sympathy run amok.”

The Court affirmed the award of 35% of all marital property to Mrs. Fields, noting that it was “not for the courts to dictate what type of lifestyle a ‘normal’ marriage should reflect” when considering the parties lived separately for their final 22 years of marriage.  Why, if only the down payment was separate, and the lifestyle was to be overlooked, was Mrs. Fields entitled to only 35% in this very long marriage in which she made both economic and noneconomic contributions to the marriage and the upbringing of their son?

Contrary to the opinion, the facts in Fields are not unique.  These issues will continue to surface regularly.  The lesson to be learned: no asset should be purchased using separate property in whole or part,` without a postnuptial agreement.