Obstreperous may be defined as stubbornly resistant to control. In divorce litigation, sometimes it just doesn’t pay to be difficult.
In its decision of March 22, 2022, the Appellate Division, First Department in Gorman v. Gorman, upheld the lower court’s determination that the wife waived her interest in the shopping center by her refusal
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
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
Appreciation. Innovation. Frustration. All can be heard in New York County Supreme Court Justice Matthew Cooper’s May 18, 2020 decision in Chu v. Lin, dealing with parenting and marital residence issues in an ongoing divorce action. Justice Cooper begins with praise of the New York court system’s stepping up to adapt and press on during the COVID-19 pandemic. Indeed, it may “its finest hour.” At the same time, he bemoans the inadequacy of the new technology.
“While the true heroes of this medical emergency are undoubtedly health care workers, first responders, and other front-line workers who have put their health, and even their lives, on the line caring for others and supplying vital goods and services, an immense amount of credit must also be given to those who have managed to keep our courts open and running under the most difficult of circumstances imaginable. An independent, operational court system may not be an absolute necessity for sustaining life itself, but it is nevertheless an essential component of life as we know it in this country, as it is of any full-fledged constitutional democracy.”
In Chu, the pandemic exacerbated existing problems with parental access. Throughout the divorce action’s two-year history, a lasting resolution on custody and parental access had been stymied by a toxic mix of dysfunctional parenting, allegations of domestic violence, the existence of a Family Court Order of Protection, and an inability to abide by court orders.Continue Reading Parenting Issues under COVID, Part II
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
Using the state’s Child Support Enforcement Services can have unintended results. Having support payments made through a Support Collection Unit triggers a cost-of-living adjustment procedure that may result in a significant change to the court-ordered support obligations to which parties had agreed.
Consider the September 26, 2018 decision of the Appellate Division, Second Department, in Murray v. Murray. There, the former spouses in their 2001 surviving divorce settlement agreement had agreed to share joint custody of their children, with the mother having physical custody.
The parties had opted out of the basic child support obligations of the Child Support Standards Act (C.S.S.A.), with the father agreeing to pay a certain sum for child support from August 1, 2001, through January 31, 2006. The parties also executed a rider to their stipulation, in which they agreed that beginning on February 1, 2006, until both children were emancipated, the father would pay child support to the mother based on the C.S.S.A., but using the parties’ total combined income for the year 2005.
In an 2009 order, the Family Court, upon the parties’ consent, directed the father to pay $740.56 per week in child support for both children through the Support Collection Unit (the SCU).
In March 2017, the SCU notified the parties of the presumptive cost-of-living adjustment (COLA) to the father’s child support obligation authorized by Family Court Act §413-a. That would increase the father’s weekly child support obligation to $822.00.
The mother filed an objection to the cost of living adjustment pursuant to Family Court Act §413-a(3), requiring that a hearing be held for a redetermination under the C.S.S.A. After that hearing, Suffolk County Support Magistrate Aletha V. Fields, in effect, vacated the COLA increase. At the time, the subject child was 20 years old and entering her third year of college. Upon recalculating the amount of child support, Magistrate Fields fixed the father’s child support obligation at $360.00 per week. The Support Magistrate found that although the parties’ combined parental income was $371,697.08, the mother failed to set forth a basis upon which to apply the statutory child support percentage to any income above the statutory cap of $143,000.00.
The mother filed objections to the Support Magistrate’s order. However, Family Court Judge Anthony S. Senft, Jr., denied the mother’s objections. The mother appealed.Continue Reading Child Support Payments Through Support Collection Units May Result in Unanticipated Changes
In the first New York appellate decision to rule on the issue, the Appellate Division, Second Department held in its February 28, 2018 opinion in Spencer v. Spencer, that violations of matrimonial action “Automatic Orders” can be grounds for a finding of civil contempt, but an application for that relief must be made before the entry of the judgment of divorce.
The facts are straightforward. Following the entry of her November, 2015 divorce judgment, the wife discovered that while the divorce action was pending, her husband sold a warehouse in Brooklyn, without the knowledge or consent of the wife or the court. He netted $300,000.00.
Under Court Rule 22 N.Y.C.R.R. §202.16-a, the listed orders are binding upon a plaintiff upon commencement of the matrimonial action and upon a defendant upon service of the summons or summons and complaint (see Domestic Relations Law § 236[B][2][b]). Automatic Orders seek to preserve the status quo while the action is pending, by prohibiting the transfer or encumbrance of real and personal property and retirement funds, the accumulation of unreasonable debt, and changes in beneficiaries on existing health and life insurance policies.
The wife, then, sought to hold the husband in civil contempt (Judiciary Law §753). After a hearing, Richmond County Supreme Court Justice Catherine M. DiDomenico granted that motion. Justice DiDomenico directed that, unless the defendant purged the contempt by immediately paying $150,000 to the wife, the husband would be incarcerated every weekend for a period of six months. The husband appealed.Continue Reading Contempt Available for Violators of “Automatic Orders”
With litigation so expensive, what claims between former spouses may be heard in small claims court?
In this small claims action, the former wife sought to recover $2,500 from her former husband because he allegedly wrongful retained health insurance reimbursement checks. The wife alleged that she, rather than the ex-husband, had paid the sums to her health providers for which the ex-husband had been reimbursed.
The ex-husband moved to dismiss the small claims action, claiming that the ex-wife’s claims were within the exclusive jurisdiction of the Supreme Court and Family Court. In addition, the ex-husband claimed that, based on the Supreme Court judgment in the parties’ matrimonial action, the ex-wife, whose two prior small claims actions had been dismissed, was precluded from bringing this action under the doctrine of res judicata.
In an order dated November 6, 2015, Nassau County District Court Judge Paul L. Meli, granted the ex-husband’s motion to dismiss this action, concluding that small claims court lacked jurisdiction and that the matter in issue had, in any event, been previously litigated.Continue Reading Small Claims Court Has Jurisdiction to Determine Claim Between Former Spouses
It may be difficult to reconcile two recent decisions of the Appellate Division, Second Department, as they relate to awards of interest on delayed equitable distribution payments due under a divorce stipulation of settlement. The first raises questions as to the impact of failing to expressly include the payment obligations in the judgment of divorce as opposed to merely incorporating the stipulation by reference. The second decision raises questions as to the date from which interest should run.
In O’Donnell v. O’Donnell, the parties had entered into a stipulation of settlement of their divorce action in March, 2014. Among other terms, the stipulation obligated the husband to “pay the Wife a lump sum of $1,000,000 on or before September 30, 2014.”
The judgment of divorce, entered in March, 2015, incorporated, but did not merge the stipulation. At the time the judgment was entered, the husband had not paid the $1,000,000 distributive award.
After the entry of the divorce judgment, and by order to show cause issued June 5, 2015, the ex-wife moved, inter alia, to compel the ex-husband to execute a confession of judgment, or in the alternative, for leave to enter a money judgment against him in the principal sum of $1,000,000 plus interest at the statutory rate of 9% per annum.
In opposition to the motion, the husband produced the confession of judgment he signed in March, 2014, which rendered academic the branch of the motion which was to compel him to execute a confession of judgment. The confession of judgment made no provision for interest.
The husband stated that he paid the $1,000,000 in full on June 19, 2015 (two weeks after the order to show cause was issued). He claimed that he had been unable to pay the $1,000,000 until that time because he had to secure those funds by mortgaging the real properties which remained in his name.
Nassau County Supreme Court Justice Jeffrey A. Goodstein denied the wife’s motion for an award of statutory interest on the $1,000,000, because the stipulation of settlement did not provide for such interest. The wife appealed.Continue Reading Interest on Asset Payments Due Under Divorce Stipulation of Settlement
What happens when a deceased father failed to maintain life insurance for the benefit of his ex-wife and the children of the marriage entitled to receive support? Is there a claim, against whom, and for how much?
Those were the questions answered by the Appellate Division, Second Department, in its August 31, 2016 decision in Mayer v. Mayer.
There, the plaintiff (mother) was the second wife of Paul S. Mayer (father). Pursuant to their 2000 judgment of divorce, the father was, among other things, obligated to pay child support and educational expenses for the children of that marriage, Alanna and Matthew. The judgment of divorce also provided that the father was to maintain a term life insurance policy in the face amount of $1,000,000 for the benefit of Alanna and Matthew, with the mother being named as trustee on their behalf, “until such time as his support obligation is fully satisfied.”
In 2001, the father married Kristen and thereafter had two children, Jonah and Ryan.
In 2005, due to the father’s claimed inability to pay the premiums on the $1,000,000 policy required under the judgment of divorce, the policy was converted into two policies insuring his life, both of which were issued by New York Life. One policy, with a face amount of $200,000, listed the father as the owner and the mother as the beneficiary. The other policy, with a face amount of $100,000, listed the mother as both the owner and the beneficiary. The mother paid the premiums on the $100,000 policy.
In 2006, the mother moved in the Family Court to have the father held in contempt for, among other things, failing to maintain the $1,000,000 policy required by the judgment of divorce. The Family Court found the father to be in contempt and directed him to comply with the life insurance provision of the judgment of divorce. However, apparently the father could not obtain a new policy in the amount of $1,000,000 because of ill health.Continue Reading Redressing the Failure to Maintain Life Insurance Required by Divorce Judgment