Archives: Exclusive Occupancy

A wife has been awarded the $475,000 annual rent received by a husband who leased out the parties’ East Hampton residence. The parties’ divorce Modification Agreement provided that the wife shall have “exclusive use and possession of the East Hampton Residence . . . until September 30, 2017 or her earlier remarriage or cohabitation with an unrelated male.”

Affirming the order of New York County Supreme Court Justice Laura E. Drager, the First Department in its March 25, 2014 ruling in Hirschfeld v. Hirschfeld, found that the plain language of the agreement was sufficient to withstand the husband’s argument that the Modification Agreement limited the wife’s use and possession of the East Hampton Residence to summers only.

Justice Drager properly measured the wife’s damages for the husband’s breach of the Modification Agreement, where he leased the East Hampton Residence to third parties during the wife’s period of exclusive use and possession. The fair market rental value of the property was the proper measure of damages, as evidenced by the actual rent of $475,000 per year received by the husband during 2009 through 2012. There was no basis for requiring the wife to prove how many times or on which occasions during the course of each year she would have actually used the property if it had been made available. The husband was given credit for for the $175,000 payments he made to the wife in 2009, 2010 and 2011, and any sums paid to the wife for 2012.

The appellate court also upheld Justice Drager’s award of 3% prejudgment interest as a proper exercise of her discretion.

Ira E. Garr of Garr Silpe, P.C., of Manhattan represented the husband. James A. Moss of Balber Pickard Maldonado & Van Der Tuin, PC, of Manhattan represented the wife.

Considering the add-ons for private school, health care, child care, and extra-curricular activities, imposing a base child support obligation upon a father (the less-moneyed spouse) in excess of his pro rata share of the first $136,000 of combined parental income would be unjust and inappropriate. Such was the holding of Acting Supreme Court Kings County Justice Debra Silber in her August 12, 2013 decision in A.C. v. J.O.

That ruling, at first blush, would appear to be at odds with the Second Department’s August 14, 2013 decision in  Beroza v. Hendler, the subject of Monday’s blog post. There, the appellate court held it was improper for the trial court to have limited the base child support obligation of the father (the less moneyed spouse) to less than his pro rata share of the first $400,000 in combined parental income.

Any comparison, however, must be clouded by the vast number of factors that Justice Silber considered when deciding all of the issues incident to the parties’ divorce.

In A.C. v. J.O., at the time of the commencement of the divorce action in May, 2011, the parties had been married for almost 13 years. They had two children, a daughter now 12 and a son now 10. The parties were still living together. The wife, 52 years old, had her own dental practice, with income stipulated to be $251, 395. The husband, 47, worked as a first assistant director, primarily for television. He also wrote screenplays and recently made a full length film, which he both wrote and directed. The husband’s income was stipulated to be $171,706.

In a lengthy opinion, Justice Silber awarded the mother both physical and legal (decision-making) custody of the two children. Although both parents could handle parenting responsibilities alone, joint custody was not appropriate as the parents’ “cannot easily agree upon anything.” Justice Silber provided a detailed plan for the father’s “parental access” and consultation on major decisions.

Continue Reading No Child Support Awarded Upon Combined Parental Income in Excess of $136,000 Statutory Cap

No retroactive fine or suspension of maintenance is to be  imposed against a wife who violated her so-ordered stipulation not to allow her paramour into the marital residence. Instead, suspension of maintenance and a fine would only be imposed prospectively and only until the wife complied with that stipulation. Civil contempt fines are not intended to punish the wrongdoer, but to secure future compliance with court orders.

Such was the holding of the Appellate Decision, Second Department, in its May 22, 2013 affirmance of Nassau County Supreme Court Justice Daniel Palmieri‘s order in Ruesch v. Ruesch.

For the pendency of this divorce action, the wife had been awarded exclusive possession of the marital home, temporary custody of the parties’ children, maintenance and child support.

At some point, the wife had permitted her alleged paramour to move into the marital home. In a so-ordered stipulation, the wife agreed that her paramour would be barred from entering the marital home absent further order of the court. A month later, the husband moved to hold the wife in contempt of that so-ordered stipulation because the paramour was continuing to reside in the marital residence.

Upon the wife’s admission that she permitted her paramour to continue to reside in the marital residence, Justice Palmieri held the wife in contempt pursuant to Judiciary Law §753. Justice Palmieri prospectively and temporarily suspended maintenance payments and imposed a fine of $250 for each day the wife remained in violation until the wife purged her contempt by demonstrating compliance with the so-ordered stipulation. Justice Palmieri denied the husband’s request for a counsel fee.

On appeal, the husband  contended that Justice Palmieri should have suspended maintenance payments and imposed a fine retroactive to the first day the wife violated the so-ordered stipulation.

The Second Department affirmed. Justice Palmieri had properly recognized that civil contempt fines are remedial in nature and not punitive. In the absence of a monetary loss for the husband, the contempt fine would be designed only to secure future compliance  with the so-ordered stipulation.

The appellate court held that unlike fines for criminal contempt where deterrence is the aim and the State is the aggrieved party entitled to the award, civil contempt fines must be remedial in nature and effect. The fine for a civil contempt should be formulated not to punish an offender, but solely to compensate or indemnify private complainants. Thus, a fine is considered civil and remedial if it either coerces the recalcitrant party into compliance with a court order, or compensates the claimant for some loss. The violator must be given the opportunity to comply, and thereby purge the violation.

Here, where the [husband] failed to prove an actual loss, any penalty that punished the [wife] for her past acts of disobedience would have been within the rubric of a criminal contempt and thus improper within this civil contempt adjudication. Accordingly, the Supreme Court did not err in suspending maintenance payments and imposing a fine only prospectively.

The Second Department also held there was no merit to the husband’s appeal of the denial of his application for an award of counsel fees.

In divorce actions, it is not uncommon for one party to be made the financial obligor, and the other to perform some action. If the power of the court is to be administered even-handedly, its remedies must be balanced.

Should our stipulations themselves state what the remedy will be for a violation? Will a liquidated damages provision be upheld?

If Ms. Ruesch can avoid even a slap on the wrist by finally complying with the order she had violated for four months, is respect for the court’s orders truly being promoted? Indeed, with the denial of even a counsel fee, what is the lesson to be learned here?

The husband was represented on the appeal by Edward K. Blodnick, Thomas R. Fazio, and Steven R. Talan of Blodnick, Fazio & Associates, P.C., of Garden City.

In a May 8, 2013 decision in Mejia v. Mejia, the Appellate Division, Second Department, modified a divorce judgment’s provisions concerning the cap on combined parental income, the disposition of the marital residence, college expenses for three children ages 14, 10 and 6, and judgment inconsistencies with the underlying decision and judgment  formalities.

After the parties separated, they each petitioned the Family Court for custody of the children. The parties consented that they share joint legal custody, and that the father have primary physical custody.

After a non-jury trial on certain financial issues, the Family Court considered the first $200,000 of combined parental income in determining child support, based upon, among other things, “the economic reality of life in Rockland County,” and a determination that the gross income of the mother was substantially less than that of the father. The mother’s pro rata share of the basic child support obligation was 37% of 29% of the first $200,00 of combined parent income was fixed at $1,789 per month in the 2011 Family Court order.

The marital residence, titled in the parties’ joint names, was awarded to the father and the children, based upon the father’s claim that there was no equity in the house. The court further concluded in its decision that the father should maintain health insurance for the children, and that the mother should pay 37% of the college expenses of the children.

The Second Department lowered to $150,000 the applied cap on combined parental income, “considering the substantial difference between the parties’ income, the fact that the [mother] has less income than the [father], and the amount of parenting time awarded to the [mother].” Calculated on that basis, the mother’s pro rata share of the child support obligation was $1,341 per month.

Continue Reading The Second Department Rules on Child Support Parental Income Cap, Transfer of the Marital Residence, and Judgment Formalities