A breach by one ex-spouse of a divorce settlement stipulation may or may not excuse a breach by the other. The obligations of the parties may or may not be independent.

In its July, 2019 decision in Lainez v. Orellana, the Appellate Division, Second Department, held that the answer could be found the clear and unambiguous language of the stipulation. The parties could have made the obligations interdependent; they did not. The obligations, then, were not dependent.

In the parties 2011 divorce settlement agreement, the husband agreed to transfer his interest in the marital residence to the wife, and the wife agreed to hold the husband harmless with respect to all mortgage payments and do everything in her power to remove his name from the mortgage.

Following the divorce, the wife continued to live in the marital residence. However, neither party performed his or her obligations under the settlement and the husband had made the post-agreement monthly mortgage payments.

Continue Reading Does One Party’s Breach of a Divorce Settlement Excuse a Breach by the Other?

In its June, 2019 decision in English v. Smith, the Second Department reminds to properly memorialize any agreed-upon understandings or changes to a divorce settlement agreement.

The parties’ Separation Agreement was incorporated but not merged into their 2015 judgment of divorce. The father was to pay the mother child support. In addition, the parents would share equally in the costs of their child’s undergraduate and graduate education, extracurricular activities, and uncovered medical, dental, orthodontic, eye care, and mental health treatment.

The agreement also provided that neither the agreement nor any provisions thereof could be modified or waived except by a writing “duly subscribed and acknowledged by both parties with the same formality as” the separation agreement itself.

The parties’ child began attending University College in Dublin, Ireland, on a full tuition scholarship in 2015. The father stopped making child support payments to the mother in May 2015. The father contended that the parties had agreed that they would equally share in paying the child’s living expenses in lieu of the father paying child support to the mother.

Continue Reading Modifying Support? Do it Right. Claimed Off-Sets Denied

In 2011, after the parties separated, the mother received sole custody of the parties’ only child, who resided with her. The father was awarded access every weekend. The father subsequently filed a petition seeking increased access. After a hearing, Kings County Family Court Judge Maria Arias denied the pro se father’s petition.

The father appealed, contending that the Family Court should have granted his request for a copy of a forensic report prepared by a court-appointed forensic evaluator, and that the court erred in admitting the forensic report into evidence. In its July 10, 2019 opinion in Raymond v. Raymond, the Second Department affirmed.

Continue Reading Pro Se Father Denied Copy of Forensic Report Although Received in Evidence

In this divorce action, Strauss v. Strauss, the husband had obtained access to wife’s iPad and private text messages. He falsely told her that he did not have the iPad and that it was lost. The husband did provide the text messages to his counsel. However, it was not until two years after the fact that it was disclosed that the husband was in possession of the iPad and text messages They announced that they intended to use the text messages at the parties’ custody trial. The husband did not explain how or why he was legally permitted to retain wife’s iPad without her knowledge, and to access and take possession of wife’s personal data located on her iPad.

The lower court, New York County Supreme Court Justice Deborah A. Kaplan, granted the wife’s motion for sanctions and awarded $180,000.00 in fees to the wife’s counsel, Cohen Clair Lans Greifer Thorpe & Rottenstreich LLP, for the “frivolous conduct” of her husband and his counsel.

Continue Reading Husband and Counsel Sanctioned for Taking Wife’s iPad and Keeping Secret for 2 years

It took nine years to affirm a five-year maintenance award. In an April 24, 2019 decision of the Appellate Division, Second Department, the Court in Rogowski v. Rogowski affirmed a March, 2010 divorce judgment under which the wife was awarded maintenance for five years of $2500 per month plus 60% of the husband’s annual employment bonus in excess of $14,200. The action for divorce had been commenced in 2008.

The Court held that held that Nassau County Supreme Court Justice Arthur Diamond did not improvidently exercise his discretion when determining the amount and duration of maintenance. The Court emphasized the parties agreed that the wife would quit work and care for the children, and the parties’ respective incomes and future employment prospects.

Continue Reading Maintenance Award of 60% of Annual Bonus Is Affirmed

The separation agreement was the product of mediation; the wife was afforded the opportunity to consult with counsel; and the wife elected to sign the agreement, notwithstanding the advice of counsel not to do so.  “These facts, standing alone, do not shield the separation agreement from judicial scrutiny. The validity of the agreement is dependent upon an examination of the totality of the circumstances, including an examination of the terms of the agreement, to see if there is an inference of overreaching.”

So held the Appellate Division, Second Department in its April 24, 2019 decision in Mizrahi v. Mizrahi. Reversing the decision of Queens County Supreme Court Justice Margaret Parisi-McGowan that upheld the agreement without a hearing, the appellate court also noted the record disclosed no information regarding who retained and paid for the services of the mediator, and how the mediator arrived at the substantive terms of the agreement.

The Second Department noted:

because of the fiduciary relationship existing between spouses, a marital agreement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud or where it is shown to be manifestly unjust because of the other spouse’s overreaching. To rescind a separation agreement on the ground of overreaching, a wife must demonstrate both overreaching and unfairness.

Here, the court held that without a hearing to determine the totality of the circumstances, including the extent of the parties’ incomes and assets and the circumstances surrounding the execution of the separation agreement, it could not be determined on this record whether equity should intervene to invalidate the parties’ separation agreement.

Continue Reading Inference of Mediated Separation Agreement Invalidity Sufficient to Warrant Hearing

If you delay going to court after an event that changes rights and obligations, you do so at your peril.

In Fortgang v. Fortgang, the parties were divorced in May 2011. Under their stipulation of settlement, the parties agreed that the husband would pay $2,600 per month in basic child support for the parties’ two children. The stipulation provided that this child support obligation would decrease when the parties’ older child became emancipated, but did not provide the reduced amount.

In December 2013, the older child became emancipated, but the husband continued to pay the full child support amount. In November 2015, the parties’ younger child became emancipated, but the husband continued to pay child support for several months thereafter.

In December 2016, in response to motion by the wife, the husband cross-moved, for the first time, to recoup child support overpayments. Suffolk County Supreme Court Justice David T. Reilly granted the husband’s cross motion, and awarded him a money judgment against the wife for $30,422.32 in overpaid child support.

Continue Reading Recouping Overpaid Child Support: Two Lessons

Leaving parenting-time decisions to the future agreement of the parents is not a great idea, particularly with quarreling parents. So held the Appellate Division, Second Department, in its February, 2019 decision in Cabano v. Petrella.

In that case, the parents had entered into a December, 2013 so-ordered stipulation which, among other things, reaffirmed their joint legal custody, reaffirmed the mother’s residential custody, and set forth a detailed parental access schedule. That arrangement remained substantively in effect in a so-ordered modification stipulation entered in October, 2016.

In June, 2017, the father petitioned for a modification of the parental access schedule (apparently at least the third proceeding after parenting rights were initially established). After a hearing, Suffolk County Family Court Referee Kerri N. Lechtrecker granted the father additional parental access with the child.

Further, the Referee modified the number of hours of access to which each party was entitled on the mother’s birthday, the father’s birthday, and the child’s birthday. The order provided, in effect, that the parties each would have parental access with the child on his or her own birthday, and on the child’s birthday, if the birthday was during the other party’s parental access, for two hours on a school day and for four hours on a non-school day. The order required the parties to cooperate in reaching an agreement on the details.

The mother appealed. The Second Department modified that order.

Continue Reading Don’t Leave Future Parenting-Time Decisions for Later Agreement

What happens when, under a post-divorce QDRO, retirement benefits are paid to the “wrong” beneficiary? The Appellate Division, Second Department, in its March 6, 2019 decision in Schatz v. Feliciano-Schatz held that the proceeds may be reached by the correct beneficiary

In 1998, Susan (W1) and Aloysius (H) were divorced. In February 2004, H married Carmen (W2). In December 2006, H retired from his employment and began receiving benefits from his New York Stock Exchange Retirement Plan. H elected a joint and survivor annuity with W2 named as joint annuitant. In November 2011, H and W2 were divorced.

In June, 2012, H and W2 entered into an amendment to their 2011 stipulation of settlement and judgment of divorce. Each of them waived their rights to each other’s retirement plans. The amendment also indicated that in the event that either of the parties received payments in contravention of the agreement, the benefits would be turned over to either a beneficiary designated by the other party or to the other party’s estate.

Subsequent to executing the amendment, W2 remained the only named beneficiary on H’s retirement plan. On May 21, 2013, W1 remarried H, and 9 days later on May 30, 2013, H died. Upon H’s death, benefits were paid out to W2 as the named beneficiary under H’s retirement plan.

W1 (now W3) and the administrator of H’s estate (the plaintiffs) commenced this action to recover the proceeds. They alleged that the plaintiffs were entitled to the decedent’s retirement benefits, as W2 had waived her rights to the retirement benefits pursuant to the amendment. The plaintiffs moved for summary judgment, and W2 (the defendant) cross-moved for summary judgment dismissing the complaint.

Orange County Supreme Court Justice Maria Vazquez-Doles granted W2’s motion and dismissed the complaint. The plaintiffs appealed. The Second Department, in effect, reversed, granting the plaintiffs’ motion.

Although ERISA prohibits the assignment or alienation of benefits while they are held by the plan administrator, once they are paid to the beneficiary, the funds are no longer entitled to that protection. The appellate court agreed that W2 validly waived her entitlement to the subject retirement benefits. The amendment stated that H and W2 waived any and all claims that “he or she may have or may hereafter acquire or possess to share in any pension, profit-sharing, IRA, 401(k) plan or any other retirement or deferred compensation plan established for the other party.” That waiver language was sufficiently explicit to effectuate a valid waiver of benefits under the subject plan. Moreover, contrary to W2’s contention, the language of the waiver requiring that payments received in contravention of the waiver be turned over to a designated beneficiary or the estate of the decedent does not violate the anti-alienation provisions of ERISA.

The Second Department also noted that W1 failed to demonstrate that she was entitled to a nunc pro tunc QDRO; that she had an existing interest in the subject pension benefits prior to the decedent’s death. While a QDRO may be obtained after the death of the plan participant, a QDRO only renders enforceable an already-existing interest.

Comment: Check your agreement boilerplate for the language in this decision.

Richard M. Mahon II, of Catania, Mahon, Milligram & Rider, PLLC, of Newburgh, represented W1. Mark D. Stern, of Goshen, NY, represented W2.

In a February, 2019 decision, the Appellate Division, Second Department, foiled the cooperative efforts of previously-divorced parties, by their settlement of post-judgment issues, to avoid an interim fee award to the ex-wife’s counsel to prosecute an appeal.

In Rhodes v. Rhodes, the parties were married in 1993, had three children, and divorced in 2008. In 2013, the ex-husband successfully moved to modify the parties’ custody arrangement and, in a December, 2014 order, was granted residential custody of the children. The ex-wife appealed from that order.

In May 2015, the ex-wife moved for interim appellate attorney’s fees and costs. In an August 25, 2015 order, Former Suffolk County Supreme Court Acting Justice Marlene L. Budd granted that motion, awarding the ex-wife $20,000 in attorney’s fees and costs “for the prosecution of the appeal, with leave to apply for additional sums upon the completion of the appeal.” The ex-husband was directed to pay those attorney’s fees and costs to the ex-wife’s then-attorney, Karyn A. Villar, PLLC (hereinafter Villar), within 20 days of the order.

When payment was not made, on September 23, 2015, Villar moved to hold the ex-husband in civil contempt of the fee order. The ex-husband cross-moved for leave to renew his opposition to the ex-wife’s prior motion for interim appellate attorney’s fees and costs. The ex-husband attached to his cross motion a stipulation of settlement dated September 28, 2015, in which the parties agreed that the ex-wife would waive payment of attorney’s fees and costs owed by the ex-husband pursuant to the August, 2015 order. The ex-wife retained new counsel, and thereafter cross-moved to impose sanctions against Villar, arguing that Villar’s contempt motion was punitive and an abuse of process.

In an order dated March 7, 2016, Suffolk County Supreme Court Justice Carol MacKenzie (1) denied Villar’s motion to hold the ex-husband in civil contempt, (2) vacated the August, 2015 interim fee award and denied a fee, and (3) granted the ex-wife’s cross motion to impose sanctions against Villar, directing Villar to pay the ex-wife’s new attorneys $2,500. Villar appealed.

Continue Reading Divorced Parties Foiled in Efforts to Avoid Counsel Fee Award