October 2015

In its October 20, 2015 decision in El-Dehdan v. El-Dehdan, New York’s highest court restates the elements of civil contempt, the burdens of proof needed to support a finding, and the effect of the assertion of a Fifth Amendment privilege against incrimination. Doing so, the Court of Appeals affirmed a 2013 decision of the Appellate Division, Second Department, which in turn upheld the finding of civil contempt made by Kings County Supreme Court Justice Eric I. Prus.

In January 2010, an Order to Show Cause was signed to bring on the wife’s motion to hold the husband in contempt for having violated a 2008 order that supposedly restrained the transfer of assets. The husband had transferred certain parcels of realty. In addition to scheduling a hearing on the contempt motion, a Temporary Restraining Order was issued directing the husband to deposit immediately with the wife’s attorney the sum of $950,000.00 “which is the sum of money he purportedly received from the transfer of [the property] 171 Ainslie Street, Brooklyn, New York and 64-17 60th Road, Maspeth, New York, minus the money paid for [the] real estate broker, transfer taxes and payment of the underlying mortgage.” The husband was personally served with this Order to Show Cause.

As it turns out, the 2008 order did not, in fact, prohibit the transactions in which the husband engaged. However, here, the husband was not found in civil contempt for having violated the 2008 order, but for violating the Temporary Restraining Order contained in the January, 2010 Order to Show Cause that looked to preserve marital assets and the status quo while the court considered whether the husband violated the 2008 order.Continue Reading Court of Appeals Restates Civil Contempt Rules

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. Taormina, reversing the wife’s $7,781.25 counsel fee award by Westchester Supreme Court Acting …

Going farther than simply holding that the lower court temporary support award was inadequate, the Appellate Division, Second Department, in its September, 2015, decision in Kaufman v. Kaufman, discussed the detailed decision necessary to deviate from presumptive temporary maintenance and child support formulas. Doing so, the court reversed the May 15, 2013 order of Supreme Court Justice Edward A. Maron and remanded the matter for new determinations. The appellate court also substantially increased the interim counsel fee award. Domestic Relations Law § 236(B)(5-a) [amended after this decision], sets forth formulas for courts to apply to the parties’ reported income in order to determine the presumptively correct amount of temporary maintenance. “In any decision made pursuant to that section, the lower court shall set forth the factors it considered and the reasons for its decision.” “[A] court may deviate from the presumptive award if that presumptive award is unjust or inappropriate.” Under such circumstances, the court must “set forth, in a written order, the amount of the unadjusted presumptive award of temporary maintenance, the factors it considered, and the reasons that the court adjusted the presumptive award of temporary maintenance.”

Additionally, when a court is unable to perform the needed calculations as a result of being “presented with insufficient evidence to determine gross income, the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the divorce action, whichever is greater” (Domestic Relations Law § 236[B][5-a][g]).Continue Reading Making It Tougher To Deviate From Presumptive Formulas on Temporary Support Awards

The award of maintenance to the divorcing unemployed or under-employed spouse in his or her 50s may be one of the more challenging exercises of a judge’s discretion in a divorce action: too old to develop a lucrative career; too young to collect retirement assets built up over a lengthy marriage.

Although not exactly on…