The wife’s failure to send notice of default as required by the parties’ divorce judgment resulted in no award of counsel fees on her enforcement application. So held the Appellate Division, Second Department, in its August, 2015 decision in Taormina v. Taorminareversing the wife’s $7,781.25 counsel fee award by Westchester Supreme Court Acting Justice Janet C. Malone.

The wife had sought an award of a counsel fee pursuant to the parties’ judgment of divorce in connection with the husband’s alleged defaults as to certain obligations set forth in that judgment. The judgment, however, required the nondefaulting party to give notice of alleged defaults by certified mail. It was undisputed that the wife did not give such notice. Accordingly, the wife was not entitled to an award of a counsel fee pursuant to the terms of the judgment.

Moreover, as the record did not reflect that the husband’s defaults were “willful” within the meaning of Domestic Relations Law §237(c), that statute did not provide a proper alternative basis for the award of a counsel fee to the wife. Therefore, Justice Malone erred in awarding the wife a counsel fee.

Rocco V. Salerno, Jr., of Eastchester, represented the husband. Helene M. Selznick, of Somers, represented the wife.

Two decisions this past month involved joint custody awards despite antagonism between the parents and contested custody proceedings.

In Prohaszka v. Prohaszka, Supreme Court Putnam County Justice Francis A. Nicolai had awarded the divorcing parties joint legal custody of the parties’ children, with the mother having primary physical custody and final decision-making authority. In its February 6, 2013 decision on appeal, the Second Department modified that order to add a provision directing the mother to consult with the father regarding any issues involving the children’s health, medical care, education, religion, and general welfare prior to exercising her final decision-making authority for the children, but otherwise affirmed Justice Nicolai’s order.

Although the antagonism between the parties was evident to the appellate court, it was also apparent that both parties generally behaved appropriately with their children, that they could make parenting decisions together, and that the children were attached to both parents. Under those circumstances, there was a sound and substantial basis in the record for Justice Nicolai to have found that the best interests of the children would be served by awarding the parties joint custody. Similarly, the trial record also supported the determination that primary physical custody should be with the mother and that she should have final decision-making authority.

The court, however, should have directed the plaintiff to consult with the defendant regarding any issues involving the children’s health, medical care, education, religion, and general welfare prior to exercising her final decision-making authority.

In his January 8, 2013 decision in Scott M. v. Ilona M., Kings County Supreme Court Justice Jeffrey S. Sunshine awarded the parties joint custody of their son; each parent having access alternating on a weekly basis.

Justice Sunshine did note that a significant factor in determining custody was whether the heated custody dispute, itself, indicated that an award of joint custody would be ineffective. Justice Sunshine cited to the Court of Appeals decision in Braiman v. Braiman, (44 N.Y.2d 584), which rejected joint or shared custody where the parties are in bitter conflict and do not agree to such an arrangement. That decision concluded:

Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. As a court ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos.

[Question: If the children live primarily with one parent and that parent has final decision-making authority, what does “joint custody” mean? Is it merely a psychological benefit for the parent and the child? Does it entitle the non-primary custodian to make decisions in emergency situations when the other parent is not available? Braiman, itself, noted that “joint”, or, as it is sometimes called “divided”, custody reposes in both parents a shared responsibility for and control of a child’s upbringing. In Bast v. Rossoff, 167 Misc.2d 749, 752 (Sup. Ct. 1995), affd, 239 A.D.2d 106 (1st Dept 1997), affd as mod and remanded, 91 N.Y.2d 723 (1998), it was stated “In New York the term ‘joint custody’ generally is used to refer only to joint legal custody, or joint decision making.”]

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