It has been said that the court system is broken; its resources stretched to a point where its purposes cannot be achieved.

Take this month’s decision of the Appellate Division, Second Department, in Middleton v. Stringham.

On June 22, 2011, the parties agreed to share joint legal custody of their two children, with physical custody to the mother and liberal parenting time to the father. The parties were divorced by a judgment of divorce entered January 10, 2012. Seven months later, the mother filed a petition to modify the stipulation so as to award her sole legal and physical custody of the children, and the father cross-petitioned for the same relief. After a hearing at which the parties and two of their parent coordinators testified, Westchester County Family Court Judge David Klein modified the stipulation so as to award the father sole legal and physical custody of the subject children.

Generally, on a petition for a modification of joint custody, a court is required to determine whether the parents’ interaction was so acrimonious that it effectively precluded them from joint decision-making, and if so, to award sole custody to whichever parent serves the best interests of the children. Here, however, the Second Department held that the determination that it was in the best interests of the children to award sole custody to the father lacked a sound and substantial basis in the record.

The custody hearing concluded on May 15, 2014, over 20 months after the mother’s  petition was filed, and the order appealed from was issued 6 months after that.

For the most part, the evidence at the hearing focused upon allegations, events, and circumstances relating to the period of time that preceded the filing of the petition and cross petition, and the parents’ acrimonious relationship with each other, with limited evidence about the children’s more current circumstances and best interests. Accordingly, the appellate court found that a new hearing was needed to allow the court to elicit more up-to-date evidence.

Moreover, the Second Department noted that under the unique facts of the case (not discussed), and despite the children’s relatively young ages, the court should have conducted in camera interviews with the children.

The Second Department directed that the new hearing, in camera interviews, and new determination should be done with “all convenient speed.”

The parties have now been litigating for the three years that followed the one-year respite after they settled their custody dispute the first time. These cross-proceedings took so long that the reasons there were brought were no longer relevant. Instead, the appellate court wanted to know what had been going on while the Family Court proceeding was ongoing. Even with  “all convenient speed,” the resolution (with appeal) will take another year or two.

From the children’s perspective, it must seem like their entire lives have been spent with the sights and sounds coming from the court-system battleground. We owe them better.

William J. Larkin III, Esq., of Larkin, Ingrassia & Brown, LLP, of Newburgh, represented the mother. Neal D. Futerfas, Esq., of White Plains, N.Y., represented the father. Joy S. Joseph, Esq., of White Plains, N.Y., served as attorney for the children.

Requiring the wife to pay the carrying charges of the marital residence pendente lite was proper in light of the awards to the wife of temporary maintenance and child support. So held the the Appellate Division, Second Department, in its June 12, 2013 decision in Fini v. Fini, affirming the order of Orange County Supreme Court Justice Lawrence Ecker.

Moreover, Justice Ecker properly based his $7,500 per month temporary maintenance award upon the wife’s needs and the standard of living of the parties prior to commencement of the divorce action as the husband’s “evidence of his gross income was insufficient, and was not reconcilable with his prior spending habits or the parties’ standard of living.”

On appeal, the husband failed to demonstrate that the pendente lite award left him unable to meet his financial obligations. There was no basis in the record to disturb the award of temporary maintenance. Any perceived inequities would best be remedied by a speedy trial.

The husband was represented by William J. Larkin III of Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, of Newburgh. The wife was represented by Adam W. Schneid of Most & Schneid, P.C., of White Plains.

Two decisions within the last 10 days confirm the need for agreements relating to support to be in (an acknowledged) writing, and then incorporated in a court order.

In one, the Second Department affirmed the award of maintenance arrears without a hearing despite the claimed reduction of maintenance under an oral modification of the parties’ separation agreement. In the second, Albany County Family Court Judge W. Dennis Duggan directed a father to pay 71% of his older son’s private middle school expense, despite the mother’s conceded agreement to pay the full tuition.

In its January 30, 2103 decision in Parker v. Navarra, the Second Department affirmed the award of maintenance arrears by Dutchess County Supreme Court Justice James V. Brands. The ex-husband alleged that he and his ex-wife had orally modified the maintenance provisions of their separation agreement and, alternatively, that the ex-wife should be equitably estopped from enforcing the maintenance provisions of the separation agreement. The ex-husband had requested an evidentiary hearing so that he could present the testimony of witnesses on those issues. Justice Brands denied the request for an evidentiary hearing, awarding arrears on the basis of the parties’ submissions.

The Second Department affirmed, noting that the ex-husband failed to make a showing sufficient to entitle him to a hearing on this issue:

Where, as here, the parties’ separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification. The defendant did not demonstrate that the plaintiff’s acceptance of reduced monthly maintenance payments was unequivocally referable to an alleged oral modification by, for example, demonstrating that consideration was given in exchange for the plaintiff’s alleged oral agreement to accept reduced maintenance payments.

Moreover, to establish a defense of equitable estoppel, the ex-husband was required to have shown that the ex-wife’s conduct induced his significant and substantial reliance upon an oral modification. Again, the ex-husband was required to have shown that the conduct relied upon to establish estoppel was not otherwise  compatible with the agreement as written.

Continue Reading Support Modification Agreements: Get’em in Writing; Get’em into Court (Part II)