It is in the best interests of a three-year-old daughter for the father and anyone regularly supervising his access to be vaccinated against COVID-19 or else undergo regular testing. So held New York County Supreme Court Justice Matthew F. Cooper in his October 7, 2021 opinion in C.B. v. D.B, directing that the father’s in-person parental access with the child be suspended until such time as he did so.

The Court noted that historically vaccines almost universally embraced as a means of protecting ourselves and our children from deadly or debilitating disease. With Covid-19, most people, heeding expert medical opinion, have availed themselves of vaccines that promise not only to protect them and others from the ravages of the disease, but ultimately to completely vanquish the virus. Unfortunately, for Justice Cooper, a sizeable minority, incomprehensibly seizing upon misinformation, conspiracy theories, and muddled notions of “individual liberty,” have refused all entreaties to be vaccinated.

In this divorce action, the issue was not one of whether the child should be vaccinated; she is still too young to receive any of the vaccines. Nor was it one of whether the Court could require an adult to be vaccinated; to do so would stretch the authority of a matrimonial court to unprecedented lengths.

Here, the parties were married in 2015, and their child, a daughter, was born in 2018. The parties’ high-conflict divorce action was commenced by the wife in 2019. Based upon the wife’s allegations of the husband’s history of substance abuse and untreated mental health issues, and significant periods where he had not seen the child at all, Justice Cooper directed that the husband have daytime access every other weekend visitation, but supervised, first only by Comprehensive Family Services (CFS), but later by his parents.

Continue Reading Dad’s Visits Conditioned on Covid Vaccination or Testing

Generally, a transfer of a judgment debtor’s real property interest is not effective against a creditor whose judgment was recorded prior to the debtor’s transfer (C.P.L.R. §5203). However, that rule will yield to the equitable interests of a former spouse. So held the Appellate Division, First Department, in its August 19, 2021 decision in Tiozzo v. Dangin.

There, the parties’ 2004 Judgment of Divorce incorporated their surviving Stipulation of Settlement. Under the Stipulation, the wife was “entitled to sole ownership and exclusive use and occupancy” of the marital residence. The husband was to “provide a quitclaim deed to [the wife] only if doing so would not jeopardize the existing mortgage.” In the meantime, the husband was solely responsible to continue to pay the mortgage. The Stipulation further provided:

In the event that the Husband is unable, for any reason, to execute and/or record such quitclaim deed, the Husband agrees and covenants that notwithstanding the joint ownership of the Jane Street property, he will not act in any way or manner or through any deed or omission, whether directly or indirectly, to interfere with the Wife’s exclusive use and occupancy of the said property, including the sale of the said property by the Wife should she so choose.

The wife did not demand a quitclaim deed from the husband until 2019, almost 15 years after the divorce. The wife had then decided to sell the residence when the husband went into default of his obligation to make the mortgage payments.

By then, in February 2019, Lenz Capital Group, LLC (Lenz) had entered a two million dollar judgment against the husband upon his confession of judgment.

Continue Reading Ex-Husband’s Judgment Creditor Subordinated to Ex-Wife’s Unrecorded Equitable Realty Interest

What if we don’t tell my health insurance company that we got divorced? Then, both of you, the named insured and his or her former spouse, act at your peril.

Consider, the 2021 decision of New York County Supreme Court Justice Louis L. Nock in Alston v. Golfo (2021). Salvatore Golfo was a member of Teamsters Local 272. In July, 2018, Mr. Alston, as Trustee of the Local 272 Welfare Fund, commenced an action against both Mr. Golfo and his former wife, Denise, to recover the $77,317.43 that was paid out by the Fund for Denise’s healthcare expenses from 2011 through 2018, after their 2007 divorce. Contrary to Salvatore’s inaccurate insurance plan enrollment form submission in 2011, Denise was not then his spouse. She was not eligible to be covered.

In his defense, Salvatore also asserted a claim against his former wife to be indemnified. He also made that claim against Denise’s father, Joseph Mattesi (“Mattesi”), another one of the Fund’s trustees, alleging that his former father-in-law acquiesced in Salvatore’s submission of the inaccurate enrollment form. Salvatore also claimed that Denise had caused Salvatore to innocently believe that she was still his spouse, despite the 2007 Judgment of Divorce.

Continue Reading What if We Keep Our Divorce Secret from Our Health Insurance Company?

It is not rare, and may be commendable, to resolve child support obligations based upon anticipated future circumstances: an expected job, obtaining a degree or license, etc. However, when doing so, care must be taken to anticipate not meeting those expectations. When is relief available? The issue is complicated if the parties “opt out” of the statutory ability to seek a modification upon a 15% change in income or three years from the support order.

Consider the 2021 decision of the First Department in Matter of Solomon M. v. Adelaide M., 192 A.D.3d 424, 142 N.Y.S.3d 542. There, at the time the parties entered their child support stipulation, the husband was unemployed and had no income. When the husband later obtained a job, the husband complained his take home pay was inadequate to cover his agree-upon support obligations.

The husband petitioned the Family Court for a downward modification. Bronx County Support Magistrate Shira Atzmon denied the husband’s petition. The Magistrate noted that the husband’s financial situation and potential earning capabilities had actually improved by the time of his petition as compared with the time of the stipulation he sought to modify. By the time of his petition, the husband had earned an MBA and was earning approximately $30,000 per year. Bronx County Family Court Judge Phaedra Perry denied the husband’s objections to the Magistrate’s order. The Appellate Division, First Department, affirmed.

Continue Reading Anticipating Future Finances when Agreeing to Support Obligations

Does a four-day delay in notarization by the mediator/notary of a separation agreement  executed by the parties in a Zoom session with the mediator render the agreement invalid? In his June 29, 2021 decision in Ryerson v. Ryerson, Warren County Acting Supreme Court Justice Richard B. Meyer held it did not.

The parties used William J. McCoskery as mediator to assist them in resolving various matters attendant to their divorce. They met once in person with the mediator, during which he advised both parties to consult with an attorney. Based upon his discussions with the parties, the mediator prepared a 15-page separation agreement and emailed it to both parties for their review. The husband claimed not to have read the complete document.

The Governor declared the Covid state of emergency on March 7, 2020. Notarization using audio-video technology was authorized by Executive Order No. 202.7. That Order provides:

Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met:

    • The person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;
    • The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);
    • The person must affirmatively represent that he or she is physically situated in the State of New York;
    • The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;
    • The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and
    • The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.

Continue Reading Delayed Notarization by Mediator Does Not Invalidate Separation Agreement Signed Over Zoom

Is a divorce settlement agreement that mandates that the children attend school within a particular school district satisfied by the children being home schooled within that district? Maybe, held the Third Department in its June 17, 2021 decision in Matter of John U. v. Sara U.

The parties were the divorced parents of two children (born in 2010 and 2012). They entered a separation agreement in October 2017, which was modified in September 2019. The agreement provided for joint legal custody and shared physical custody of the children. As is here relevant, it contained a provision that:

[s]o long as the [father] maintains a residence in [a certain school district,] the children shall continue to attend school within [that school district] unless both parties expressly agree in writing to change the schools of the children.

Prior to the 2019-2020 school year, the children had attended a certain public elementary school in that school district. The children had a religious exemption from vaccination. After a June 2019 change in state law eliminated such religious exemptions for students (see Public Health Law § 2164), and after the district’s denial of the mother’s requests for medical exemptions, the unvaccinated children were removed from their school in September 2019 and the mother began home schooling instruction at her home.

Continue Reading Is Home-Schooling “Attending” School?

It is common for child support to continue to be paid while a child is away at college. A child often will return  home for perhaps four months of the year. What happens when the student just stays there year round?

Often in divorce stipulations of settlement, the parties will define when a child will be deemed emancipated terminating the child support obligation. One of those occasions is often a permanent change of residence of the child away from the residence of the deemed custodial parent.

It is common for such a change of residence to exclude one occasioned by a child’s attending college away from home. Such reflects that the custodial parent must have shelter available; and pay for food and other expenses while the child is home. Often, expenses for clothing, entertainment, and other items are paid year round. Sometimes a credit is given against the periodic support obligation for all or some fraction of the room and board expenses paid by child support payor.

What happens when a child simply does not return home while attending college? That was the issue presented to Nassau County Family Court Support Magistrate Sondra Toscano in Matter of Anthony C. v. Alison C., 2021 N.Y.Misc. Lexis 3115.

Continue Reading Terminating Child Support While Child Away at College

The calculation of a retroactive periodic child support award to the wife and offsetting that award with credits for a retroactive award to the husband for the wife’s unpaid share of add-on expenses was the subject of the September 30, 2020 decision of the Appellate Division, Second Department in Levi v. Levi.

The parties were married in 2003 and had two children. On May 7, 2014, the husband commenced this action for a divorce. Pursuant to a pendente lite order dated September 3, 2014, the husband was directed to pay the wife $500 per month for temporary spousal maintenance, $750 per month for temporary child support, 100% of unreimbursed medical, dental, and eyeglasses expenses for the wife and the children, and to pay the expenses for certain therapists and tutors for the children.

At trial, it was established that the husband was employed full-time by the MTA, then earning a salary of $ 99,000 annually. The wife, a licensed optician, worked part-time at a neurovisual practice, earning $20 per hour, for an average of 25 hours per week.

In a February 8, 2017 decision after trial, Supreme Court Nassau County Justice Robert A. Bruno determined that the wife’s annual earnings of $26,000 represented 21% of the parties’ combined income. The trial court calculated the husband’s child support obligation under the Child Support Standards Act at $1,899.91 monthly, awarding that sum retroactive to the date of the wife’s application for pendente lite support.

Child support arrears were calculated to be $66,496.85, using the husband’s income at the time of trial to base the award retroactive to mid-2014, some 2½ years earlier when the husband was earning less. The husband appealed.

Continue Reading Retroactive Child Support Awards: Heads I Win, Tails You Lose?

Can a court order a parent to impose discipline on children who voluntarily refuse to engage in court-ordered visitation with the other parent? Yes, said Monroe County Supreme Court Justice Richard A. Dollinger in his September 18, 2020 opinion in Matthew A. v. Jennifer A., enforcing a separation agreement’s schedule. The parents had determined what was in their children’s best interests; it was the Court’s job to help them “drive the bus,” using the parents’ authority to impose discipline on children, as well as the Court’s contempt powers, to enforce that schedule.

The parties were the parents of three boys, 10, 12 and 14, who resided primarily with their mother under a separation agreement that was less than two years old. Because of the distance between the parents’ homes, the father’s agreed-upon one midweek dinner with the boys was not specified. However, the agreement provided that if the father moved closer to the mother’s home, such would constitute a substantial change in circumstances permitting the father to seek a modification.

A year after the divorce, the father did move closer to the mother’s home. The father filed a motion seeking to expanded his alternate weekend time with the children to include Sunday overnights. He also sought to hold the mother in contempt for her alleged failure to follow the original schedule. For her part, the mother filed her own visitation modification petition seeking fewer visitation hours alleging, “the children’s wishes have changed;” the children did not want to have any dinner visits with their father if they had organized activities after school.

At a preliminary appearance, Justice Dollinger warned the mother that he was ordering the mother to restrict the children’s privileges and access to extracurricular activities if the children continued to fail to attend visitation. Justice Dollinger warned that he could hold a residential parent in contempt if the parents failed to strictly enforce the disciplinary restrictions set forth in a court order.

Continue Reading Making Mom Make the Kids Visit Dad

Generally, it is the more “successful” spouse who submits the proposed judgment of divorce to the Court to be signed and entered. In all events, a spouse who intends to take an appeal on an issue must make sure:

  • that the issue to be appealed is covered by the judgment;
  • or an appeal is taken separately from the order deciding the issue; or
  • an amended judgment is entered and an appeal is taken from that amended judgment.

Take the July 8, 2020 decision of the Appellate Division, Second Department, in D’Arrigo v. D’Arrigo. Among the issues resolved on appeal, the Second Department extended to five years the three-year maintenance award of $7,500 per month made by Westchester County Supreme Court Justice Victor Grossman.

The Second Department also affirmed Justice Grossman’s award to the husband of a $118,000 separate property credit for realty he owned before the marriage and transferred to himself and the wife, jointly, after the marriage. This was not a dollar-for-dollar credit, but rather a credit calculated, in part, upon the proof of the husband’s equity in the property. The lower court had denied the husband’s request for a credit representing the full value of the property at the time that it was converted to marital property because of deficiencies in his proof of the mortgage balance at the time it was converted to marital property.

However, the Second Department declined to consider the husband’s contention that the award of counsel fees to the wife was excessive. Justice Grossman’s order awarding the wife fees, was decided on the same day as the judgment of divorce was signed, and was not incorporated into the judgment. Thus, the order did not “necessarily affect” the final judgment and could not be reviewed (CPLR 5501[a][1]). Either the husband needed to take an appeal from the order, itself, or make sure that the award was included in the judgment (or amended judgment) appealed from.

Maureen A. Dunn, of Johnson & Cohen, LLP, of White Plains, represented the wife. Heidi A. Tallentire and Ryan J. Casson, of Blank Rome, LLP, of Manhattan, represented the husband.