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

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

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

In a May 8, 2013 decision in Mejia v. Mejia, the Appellate Division, Second Department, modified a divorce judgment’s provisions concerning the cap on combined parental income, the disposition of the marital residence, college expenses for three children ages 14, 10 and 6, and judgment inconsistencies with the underlying decision and judgment  formalities.

After the parties separated, they each petitioned the Family Court for custody of the children. The parties consented that they share joint legal custody, and that the father have primary physical custody.

After a non-jury trial on certain financial issues, the Family Court considered the first $200,000 of combined parental income in determining child support, based upon, among other things, “the economic reality of life in Rockland County,” and a determination that the gross income of the mother was substantially less than that of the father. The mother’s pro rata share of the basic child support obligation was 37% of 29% of the first $200,00 of combined parent income was fixed at $1,789 per month in the 2011 Family Court order.

The marital residence, titled in the parties’ joint names, was awarded to the father and the children, based upon the father’s claim that there was no equity in the house. The court further concluded in its decision that the father should maintain health insurance for the children, and that the mother should pay 37% of the college expenses of the children.

The Second Department lowered to $150,000 the applied cap on combined parental income, “considering the substantial difference between the parties’ income, the fact that the [mother] has less income than the [father], and the amount of parenting time awarded to the [mother].” Calculated on that basis, the mother’s pro rata share of the child support obligation was $1,341 per month.


Continue Reading The Second Department Rules on Child Support Parental Income Cap, Transfer of the Marital Residence, and Judgment Formalities