Justice Jeffrey S. Sunshine

“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 Being Bound by Statements in Tax Returns and Court Papers

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.”]

Continue Reading Ordering Joint Custody in Contested Divorce Custody Proceedings

Islam symbol.jpgIt seems that every decision after trial rendered by Kings County Supreme Court Justice Jeffrey S. Sunshine is a divorce law treatise. His July 4, 2012 decision in Mojdeh M. v. Jamshid A. is no exception.

In addition to issues of property division, spousal maintenance for the husband, child support, and insurance, Justice Sunshine also considered the husband’s refusal to provide his wife with an Islamic divorce.

The parties were born in Iran and married in the Islamic faith. After 11 years of marriage, with one child, the wife commenced this action for divorce in 2007. In 2008, the wife was granted a divorce on the grounds of constructive abandonment after a grounds trial.

At the current trial before Justice Sunshine to determine the issues ancillary to the secular divorce, the wife testified that she had repeatedly asked her husband, both in person and by email, to accompany her to a mosque to obtain a religious divorce. The wife advised the Court that in accordance with the parties’ religious practices in the Islamic faith, the only way the parties can obtain a religious divorce is for he husband to accompany the wife to a mosque where “… there is a gentleman or lady that will read some part of the Koran that we are divorced. So it’s going to be transported to [her] birth certificate” thereby officially divorcing the parties.

The wife also testified that in the Islamic faith, until her birth certificate reflects her religious divorce, she will be unable to remarry. In addition, without a religious divorce, the wife testified that were she to travel to Iran, the husband could legally withhold his permission for her to leave Iran indefinitely. The wife asserted that she would have no remedy; a civil judgment of divorce would bear no impact in this situation.

Despite the wife’s efforts, the husband would not participate in this process. He simply stated “no comment. I have to talk to my lawyer.”

The wife requested that in consideration of the husband’s failure to provide the wife a religious divorce, the husband be barred from equitable distribution and maintenance. The husband contended that the issue of the religious divorce should have no impact on his award of maintenance or equitable distribution.

The Court held that the misuse of the unequal allocation of power between spouses to terminate a religious marriage can be taken into consideration when determining equitable distribution. Justice Sunshine noted that Domestic Relations Law §236[B][5][h] authorizes the court to consider the effects of a barrier to remarriage of one of the spouses when determining equitable distribution.

[The subdivision] was enacted … to codify and to prevent one spouse from using the requirement of voluntarily removing barriers to remarriage as financial leverage against the other spouse and conceding them to secure an agreement that barriers will be removed.

The section, added in 1992, codified the then seminal Supreme Court decision which characterized the husband’s refusal to give a “Get,” a Jewish divorce, as another “factor” to take into consideration when determining the distribution of assets between parties (Schwartz v. Schwartz, 153 Misc.2d 789, 583 N.Y.S.2d 716 [Kings Co. Supreme Ct. 1992 (Rigler, J.)]). In 1997, the Appellate Division affirmed the decision and held that the former husband forfeited any right to distributive awards due to his initial refusal to give his wife a Get (Schwartz v. Schwartz, 235 A.D.2d 468, 652 N.Y.S.2d 616 [2 Dept. 1997]).

D.R.L. §253[6] defines barrier to remarriage as including, without limitation, any religious or conscientious restraint or inhibition, of which the party required to make the verified statement is aware, that is imposed on a party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party’s commission or withholding of any voluntary act.

Justice Sunshine credited the wife’s testimony that she had made arrangements for the parties to meet at a local mosque to address the religious divorce, but that the husband simply did not respond. The Court found that the husband had his own agenda.

This led Justice Sunshine to find that the husband’s refusal to give the wife a religious divorce was a basis for the Court to exercise its discretion under Domestic Relations Law 236[B][5][h] to disproportionately distribute marital assets. Justice Sunshine gave the husband 45 days from the date of this decision to take any necessary steps to remove any barriers to the wife’s remarriage. In the event that the husband failed to comply, the husband forfeited the (very limited) maintenance and equitable distribution awards which the Court also made in the decision.

NYPD shield.jpgWithin weeks after entering a temporary support stipulation, the husband in a Kings County divorce action, resigned from his employment as a police officer with the New York City Police Department (NYPD). He moved to Georgia and entered the police academy as an entry-level officer at $38,000.00 per year, a more than 50% reduction of his $89,000.00 NYPD annual income.

In his May 30, 2012 decision in Darby v. Darby, Supreme Court Justice Jeffrey S. Sunshine determined whether to impute income to the husband when deciding the wife’s request for additional pendente lite counsel fees.

The parties were married on May 5, 2000. The parties have 4 children under 11 years of age.

At the preliminary conference on September 12, 2011, the parties stipulated that the husband would pay pendente lite legal fees to the wife’s attorney of $5,000.00. On November 16, 2011, the parties entered into another stipulation under which the husband agreed to pay the wife temporary support of $1615.40 bi-weekly.

With his subsequent NYPD resignation and move to Georgia, the husband began to default in his obligations immediately. The wife moved to hold the husband in contempt for failure to pay the stipulated amount of support, also requesting security, a money judgment, and an additional $20,000.00 in interim counsel fees.

The husband did not dispute that he unilaterally reduced his annual income by almost $50,000.00 when he voluntarily resigned from his employment with NYPD and moved to Georgia to enter the Dekalb County police academy as an entry-level officer;. He contended that his move was motivated by a decision to change career paths and not by a desire to reduce his income available for child support or to avoid paying maintenance.

Dekalb PD.jpgNevertheless, the husband argued that he should not be responsible for the pendente lite support obligation to which he agreed because he now earned only $1,417.38 bi-weekly. This was less than his $1,765.40 bi-weekly support obligation under the parties’ so-ordered stipulation.

The husband told the Court that he intended, in the future, to seek a second job in order to meet his pendente lite support obligations. However, he advised, he could not find a second job until his Georgia police academy training and a one-year probationary period was completed.

After presenting the current state of the law on pendente lite counsel fees, Justice Sunshine found the husband’s arguments “wholly unpersuasive.” The husband’s current financial situation was a direct result of his willful premeditated and purposeful decision, after commencing this divorce action, to leave his employment and relocate and begin a new career earning less than half of what he earned in New York.

This Court will not allow the husband to control this litigation or attempt to financially restrain the wife’s ability to participate meaningfully in this litigation by his self-serving claim that he is unable to pay, particularly under the facts and circumstances presented here.

Justice Sunshine noted that the husband’s actions forced the wife to incur additional counsel fees to enforce the parties’ stipulation. Additionally, the Court noted that the husband used tactics to delay the litigation: he repeatedly failed to appear at scheduled court appearances claiming that he was unavailable to appear because of his police academy attendance in Georgia.

Litigants are free to chart their own course in many aspects of a matrimonial proceeding; however, the Court will not permit the husband to utilize the financial consequences of his decision to start a divorce action, to change career paths and to relocate to control the wife’s ability to seek judicial relief.

Regardless of the recent reduction in income, the husband continued to be the monied spouse. The wife was not employed outside of the home. She was a full-time care-giver and mother to the parties’ four young children.

Justice Sunshine rejected the husband’s argument that he could commence a divorce proceeding, negotiate and agree to a pendente lite support obligation and then leave his wife and four young children behind in order to take an entry-level job in another state.

The husband’s purposeful and foreseeable reduction in income should not be a basis for him to refuse to contribute to the non-monied spouse’s counsel fees. . . . The husband shall not be permitted to control this litigation by controlling the purse-strings.

The Court found that the wife had demonstrated that she incurred counsel fees in proportion to the sum she requested. Justice Sunshine granted the wife an additional interim award of legal fees in the sum of $7,500.00.

The husband was represented by Yvonne E. Gardener; the wife was represented by Angela Scarlato, both of Brooklyn.

show your work 3.jpgShow your work.

Mistakes happen, and probably a lot more often than any of us matrimonial lawyers would care to admit.

We all make mistakes. I am happy to say that most mistakes are alleviated by collegial adversaries working together to put things right.

However, sometimes the spouse benefiting from the mistake in marital settlement agreement will not acknowledge that a mistake was made.

When that happens, the burdened party must ask the court to reform the agreement to correct the mistake. That party has a heavy burden.

The burden, however, becomes a lot easier to meet if the parties have shown their work.

Consider, the February 21, 2012 decision of Kings County Supreme Court Justice Jeffrey S. Sunshine in Hackett v. Hackett. The parties had entered a marital settlement agreement in January, 2006. The parties’ marital estate was itemized in a schedule annexed to the agreement. The agreement expressly provided that the husband was to pay the wife $19,336.40, “in order to equalize the allocation of marital property so as to arrive in an equal division.”

Included among the parties’ property was their marital residence, a Brooklyn home valued at $465,000.00 against which there were two mortgages totaling $195,124.00. When listing the assets being received by the wife, the marital residence was included at a value equal to its net equity of $264,447.00. Including this amount for net equity, the wife was to receive $557,442.00 in assets. From this the wife was to be take on marital liabilities of $195,124.00. Thus, the wife was receiving assets net of liabilities of $382,318.00.

The problem was that these liabilities were the very same mortgages totaling $195,124.00 which were subtracted from the home’s appraised value to result in the equity value of $264,447.00 stated for the marital residence. The mortgages were double-counted. Moreover, there was another simple math error. Subtracting the $195,124.00 in mortgages from the $465,000.00 appraised value of the marital residence should have resulted in the wife being charged with receiving net equity of $269,876.00, not the $264,447.00 which was stated as the net equity value of the marital residence being received by the wife. Thus, the wife was under-charged $5,429.00, in addition to having benefited from the double-subtraction of the mortgages.

Instead, the wife should have been charged with receiving $562,871.00 in net assets (the originally stated $557,442.00, plus the $5,429.00 math error, without the second deduction for the mortgages already taken into account). The husband was properly charged under the agreement with receiving $400,990.00. Thus, the wife received $161,881.00 more than the husband. In order to equalize the division of assets, the wife would have to pay to the husband one half of this amount, or $80,940.50. Here, the agreement as originally drafted with its mistakes ended up with the husband paying the wife $19,336.00. To correct the error, the wife would have to repay this $19,336.00, and on top of that pay the husband $80,940.50, for a total of $100,276.50.

Justice Sunshine provided the husband relief, reforming the agreement to require the wife to make the requested payment of $100,276.50. To do so, the court rejected the recommendation of the Referee to home the matter was referred to “hear and report.”

Continue Reading Correcting a Mistake in a Divorce Settlement Agreement

Changes Coming.jpgYou’ve worked out your divorce settlement, executed your agreement, and had that agreement incorporated in your Judgment of Divorce. Then, the law changes. What impact does that have on your settlement? As a practical matter, none!

Most often, a change in divorce law can be the result of a judicial decision, but it can also be a result of an act of the Legislature.

A post-agreement change in law was the issue facing Kings County Supreme Court Justice Jeffrey S. Sunshine when reaching his December, 2011 decision in Russo v. Russo Willoughby. Justice Sunshine held that a decision by New York’s highest Court, the Court of Appeals, which changed controlling Appellate Division case law existing at the time the parties entered their divorce settlement agreement, did not provide the basis for an attack on that agreement.

In Russo, the parties had entered an agreement which had made no provision for the wife to share in the Variable Supplement Fund (“VSF”), a benefit the husband accrued working as a police officer. The rule of law when the parties entered into their stipulation was that the VSF was not a part of the New York Police Department pension benefit, and not a marital asset to be equitable distributed. The parties’ stipulation did provide for a division of the NYPD pension.

After signing the agreement, the Court of Appeals ruled for the first time ruled on the VSF issue, finding that a spouse’s interest in the NYPD VSF is a marital asset to be equitably divided and distributed.

Justice Sunshine ruled that that post-agreement Court of Appeals decision did not provide a basis to add a new term to the parties’ agreement or otherwise provide a basis for relief to the wife.

As was noted in Cutler v Travelers Ins. Co., 159 AD2d 1014, 552 NYS2d 998 (4th Dept. 1990):

It is well established that a party may not reopen a voluntary settlement agreement to take advantage of a subsequent change in the law.

Thus, for example, it has been held that a change in the case law governing the application of the Child Support Standards Act was not a change of circumstances warranting the modification of the parties’ child support agreement. Kneut v Kneut, 172 Misc 2d 647, 658 NYS2d 832 (Monroe Co. Fam. Ct. 1997).

The last few years have seen many changes in New York’s divorce law. No-fault divorce is here. There is a new statute concerning the award of spousal support while a divorce action is pending. Changes to post-divorce maintenance awards are expected. Rules on the appreciation in value of one spouse’s separate property are confusing and in flux. The list goes on.

New York’s public policy supports the finality of settlement agreements. While parties may want to anticipate changes in the law, at the end of the day, cases need to be resolved. Parties must be prepared to make the most prudent deal they can, now, and be grateful for being able to move on. Years, or even days in the future, parties should not look back and think, “Had I only waited . . . “

women fighting over man.jpgThe First Wives Club appears to be alive and well in New York.

Brooklyn Supreme Court Justice Jeffrey S. Sunshine‘s December 19, 2011 decision in Tawil v. Tawil resolved the application of a second wife (now involved in her own New York County divorce action) to join in the post-divorce judgment proceedings between her husband and his first wife.

Justice Sunshine gave away the ending as he detailed the parties’ background.

Mary Tawil (W#1) and her ex-husband, Evan Tawil were divorced on October 24, 2001. Justice Sunshine pointed out that just four days later, Mr. Tawil married his second wife (W#2). Justice Sunshine also noted that W#2  was the daughter of an attorney who had represented Mr. Tawil on a prior post-judgment contempt enforcement application brought by W#1.

Mr. Tawil and W#1 have two unemancipated children.  Mr. Tawil and W#2 also have two unemancipated children.

On October 15, 2010, three days after New York’s no-fault divorce law went into effect, Mr. Tawil commenced a New York County action for divorce against W#2. In that action, Justice Ellen Gesmer granted W#2 pendente lite relief. By July, 2011, W#2 was seeking a money judgment for $186,000 in support arrears.

Mary Tawil’s (W#1) current application was to hold Mr. Tawil in contempt for the alleged failure to pay some $57,000 in tuition for his children with W#1. W#1 also sought to restrain her former husband from disposing or encumbering the apartment in which W#2 and her children were living, the jewelry Mr. Tawil gave W#2, certain artwork, and to restrain Mr. Tawil from making certain payments towards mortgages and leases.

It was into that proceeding that W#2 wanted to intervene. She claimed that if Justice Sunshine was going make rulings that were going to have effects on her apartment, jewelry, artwork, and other property, she wanted to be heard.

Justice Sunshine said no.  Any final determination of W#1’s applications would solely apply to Mr. Tawil and to his assets. As such, it could not be said that any final determination in Brooklyn would inequitably impact the “current” Mrs. Tawil. W#2 will not be bound by any final determination resulting from W#1’s applications against Mr. Tawil. W#2 may assert any claim she may have against Mr. Tawil in the New York County proceeding irrespective of the ultimate determination made regarding W#1’s  applications.

On the other hand, the Court noted that if a pendente lite sale of assets were to be permitted in the New York County action, Mary Tawil (W#1) must take priority. Mr. Tawil’s obligation to his first family as a matter of law and equity must come first.

Here, the current Mrs. Tawil’s attempt to race to the courthouse to obtain a judgment cannot be used to defeat the strong public policy in favor of priority to support a first family. This is especially true where the current spouse knows, or should have known, of the any [sic] financial obligations existing to the first family.

New York’s highest court made it clear in 2009 that second spouses accept the “baggage” that comes along with the “used” spouse. In Mahoney–Buntzman v. Buntzman, the Court of Appeals held that a spouse was not entitled to a recoupment credit for maintenance payments made by the other spouse to his prior spouse. A divorce trial is not to look back to adjust the asset division because one spouse was paying child support or maintenance throughout the marriage.

[T]he current Mrs. Tawil was, or should have been, fully cognizant that the plaintiff had financial obligations to a first family and, as such, she cannot credibly aver that she was unaware that said obligations would decrease the income and assets available to the subsequent family she built with the plaintiff . . . .  [T]he current Mrs. Tawil has no basis to claim that she will be inequitably affected by [her husband] fulfilling any court ordered financial obligations he owes to the prior Mrs. Tawil and the children of his first family.

Permitting W#2to join the Brooklyn action would not result in fairness to W#1. Her interests and the interests of W#2 are diametrically opposed. Justice Sunshine recognized that permitting W#2 to join the Brooklyn proceeding would almost certainly cause substantial prejudice to W#1 and the children of the plaintiff’s first family, delaying and making unnecessarily complex W#1’s post-judgment enforcement application (this was the 15thpost-judgment application since mid-2001 in the Brooklyn action; there have been 11 motions made in 2011 in the New York County action.)

Note: If a second spouse-to-be wants prior familial obligations to be taken into account in the event of the termination of the second marriage, such should be made the subject of a pre-nuptial agreement.

Sad child torn picture.jpgIn an effort to help parents in high-conflict decision-making disputes, New York courts are now appointing “Parenting Coordinators.”

Professor Andrew Schepard of the Hofstra University School of Law in his  article, “Parenting Coordinator for High Conflict Parent” N.Y.L.J., 5/8/03, p. 3 col. 1, explained the role of Parenting Coordinator as “a combination educator, mediator and sometimes-therapist who helps parents develop conflict-management skills and decides disputes if they cannot. . . . [B]y supervising parenting and resolving conflict, a Parenting Coordinator helps high-conflict parents develop a tolerable working relationship (usually parallel as opposed to cooperative parenting) for the benefit of their children.”

In her 2007 article “Working with Parenting Coordinators” in the Summer, 2007 issue of the Family Advocate, the publication of the American Bar Association’s Section of Family Law, Eve Orlow, Ph.D., noted that a Parenting Coordinator mixes counseling and parent education with mediation and arbitration.

New York’s 8th Judicial District (the extreme west) has formalized the appointment process. Its court rules note:

Parenting coordination is a child-focused alternative dispute resolution (ADR) process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parenting about children’s needs. With prior approval of the parties and the court, the PC may make decisions within the scope of the court order or appointment contract.

The overall objective of parenting coordination is to assist parents in high conflict to implement their parenting plan, to monitor compliance with the details of the plan, to resolve conflicts regarding their children and the parenting plan in a timely manner, and to protect and sustain safe, healthy and meaningful parent-child relationships. Parenting coordination is a quasi-legal, mental health, alternative dispute resolution process that combines assessment, education, case management, conflict management and, upon consent, sometimes decision making functions.

New York courts seem to favor therapeutic or forensic evaluation backgrounds, rather than mediation skills and experience. Moreover, as Parenting Coordinators in New York are without final decision-making power, they may simply add another layer to the judicial process; in some instances only fueling the bitterness of one or both parents.

New York’s judiciary securely guards its exclusive power to make custody and visitation decisions.  Thus, in its October, 2011 decision in Silbowitz v. Silbowitz, the Appellate Division, Second Department reminded us that:

Although a court may properly appoint a Parenting Coordinator to mediate between parties and oversee the implementation of their court-ordered parenting plan, a court may not delegate to a Parenting Coordinator the authority to resolve issues affecting the best interests of the children.

Continue Reading Are Parenting Coordinators Too Little, Too Late in Custody and Visitation Disputes?