Agreements and Stipulations

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Rip up contract 3.jpgShlomo Scholar and Shoshana Timinisky married in 2005. They had one child the next year.  The year after that they entered a stipulation of settlement to resolve their divorce action.

Included in that stipulation was the parties agreement that Ms. Timinisky would have sole custody of the parties’ child. However, the parties also agreed that custody rights be limited by an agreement to share decision-making on all issues relating to the child’s education. The parties pre-selected an arbitrator to resolve their failure to agree on such issues.

Such a disagreement arose. However, in a September 9, 2010 order, Queens County Supreme Court Justice Thomas Raffaele denied the father’s motion to enforce the parties’ stipulation. Instead, without a hearing, the mother was granted sole decision-making authority with respect to the child’s education in the event that the parties were unable to agree to a parenting coordinator (traditionally employed to facilitate parent communication and the mediation of disputes).  Justice Raffaele also disqualified “a certain individual from arbitrating issues regarding the education of the child.” Finally, on its own motion, Justice Raffaele enjoined Mr. Scholar from bringing any further motions without the permission of the Supreme Court.

In an August 9, 2011 decision of the Appellate Division, Second Department, in Scholar v. Timinisky, that Order was affirmed. The appellate court ruled that Justice Raffaele properly determined that a change of circumstances required a modification of the parties’ stipulation of settlement to protect the best interests of the child. New York’s best interest standard was to be applied to resolve a dispute regarding parental joint decision-making authority.Continue Reading Court Avoids Parents' Agreement to Arbitrate Disputes Over Education of Child

square peg1.jpgEntering open-court oral stipulations of settlement to a divorce action is treacherous.  It’s easy to miss something or be imprecise in language.

However, striking the deal while the iron is hot is a necessary part of matrimonial litigation.  Letting the parties walk out of the courthouse without putting the day’s agreement “on the record” may cost the parties their deal.  Emotions, particularly in divorce cases, often cause second (and hundredth) thoughts on settlement provisions.  Giving friends and family one more opportunity for input may likely undermine the day’s efforts.

However, there are reasons that the typical written settlement stipulation consumes scores of pages. The boilerplate and legalese so offensive to the public is the necessary consequence of the thousands of decisions which interpret the words found in or missing from decades of previous settlements or otherwise requiring attention in any final agreement.  Moreover, without reflecting on the written word, it’s easy just to miss things.

Take the recent Second Department decision in Zuchowski v. Zuchowski.  The parties’ oral in-court stipulation announced that “all joint bank accounts have been split to the mutual satisfaction of the parties and here and forward each party shall keep any bank accounts in their respective names . . .”Continue Reading The Nature of 529 Education Savings Plans Should Not be Disregarded Under the Guise of Divorce Stipulation Interpretation

scissors contract 2.jpgWhat happens when only one provision of an agreement is invalid because it violates some statute or public policy?  The answer may depend on who the court wants to benefit, instead of consistently-applied rules of contract law.

Take, for example the April 5, 2011 decision of the Second Department in Duggan v. Duggan.  In that case, the parties had resolved their divorce by a surviving February 26, 2009 stipulation of settlement. Under that stipulation, the father, who had gross income of $475,000.00, agreed to pay a base monthly child support obligation of $8,000.00.  That amount deviated from the presumptive amount under the Child Support Standards Act (C.S.S.A.) of $11,929.54. The mother had no income.

Apparently, the stipulation also had a provision which called for the reduction in the father’s monthly obligation in the event his income was reduced.

In 2010, the mother brought a Family Court enforcement proceeding when the father ceased making the payments to which he originally agreed. The father raised the stipulation’s modification provision, arguing that his $8,243.00 annual reduction in income to $466,757.00 entitled him to a $76,800.00 annual reduction in child support (to $1,600.00 per month)!

Finding that the father’s interpretation of the stipulation modification provision was “not plausible,” Nassau County Family Court Judge Julianne S. Eisman denied the father’s objections to the Order of Support Magistrate Tejindar S. Kahlon which granted the mother’s arrears petition. Finding that the language of the Stipulation, as interpreted by the father, would violate the C.S.S.A., and was against the best interests of the children, the modification provision was ignored.

On appeal, the Second Department affirmed, holding that the Family Court had the authority to find that a provision in a stipulation of settlement violated the C.S.S.A. The appellate court found that a provision which called for a reduction in child support to 13% of the presumptive C.S.S.A. amount, merely because the father’s income dropped by 1.7% was “against the best interests of the children.”

It is noteworthy that the appellate court did not quote the startling modification provision. Equally noteworthy is that there was no discussion of any interpretation of the modification provision other than the one the Family Court considered implausible.

In order to have obtained the Judgment of Divorce, it would have been necessary to have made the recitation in the stipulation of settlement that the parties had been made aware of the C.S.S.A. and its presumptive formula in their case. D.R.L. §240(1-b)(h).  The parties would have had to have stated the reasons they agreed to deviate from the C.S.S.A guidelines. Specific Findings of Fact would have been made by the Supreme Court upholding those reasons.

It is understandable that the presumed failure of the Supreme Court to review the specific modification provision might not estop the mother from later attacking that provision when it was sought to be applied. Thus, the form language of a divorce judgment that “the parties are directed to comply with every legally enforceable term and provision” of the agreement incorporated into the judgment, does not mean that every provision is, in fact, legally enforceable.

What then is, or should be the impact of rendering unenforceable only one provision of a settlement agreement?Continue Reading Severability: When Only One Provision of a Divorce Settlement Agreement Is Invalid

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There is perhaps no greater opportunity for courts to state their philosophies or to become instruments of social change than in cases involving the surnames of children of divorced and unmarried parents.

Take the March 29, 2011 Second Department case of Matter of Eberhardt. In that case, Mariah, the now nine-year-old daughter of Michelle Esquenazi and John Eberhardt, was born out of wedlock.  At the time of her birth, Mariah’s parents had been in a committed relationship and for a number of years and lived together with the mother’s three children from a prior marriage. Mariah’s birth certificate reflected the sole surname of her father. The father had acknowledged paternity. The parties’ intended wedding never took place. Approximately 1½ years after the child’s birth the father moved out. The mother maintained physical and legal custody, and the father visited regularly in accordance with an arrangement sanctioned by the Family Court.

In 2008, Ms. Esquenazi petitioned to change the child’s surname to Esquenazi-Erberhardt. Nassau County Supreme Court Justice Karen Murphy conducted a hearing at which the parties disputed the extent to which the father had been made aware that the child had been using the hyphenated surnames since age 2, and the extent of his protests once the use was known. Justice Murphy denied the mother’s petition, crediting the father’s testimony. Justice Murphy found that the objections of the father, who was emotionally and financially a part of Mariah’s life, were reasonable. The name change, Justice Murphy ruled, benefited the mother, not the child. To rule otherwise would reward the mother for her self-help and her knowing violation of the proper procedures for a name change under Civil Rights Law §§60 through 63.

A Second Department panel of three women and one man reversed, holding the father’s objections were not reasonable. Rather, his objections were raised to teach the mother a lesson. Moreover, the benefits to the child would not be denied simply to punish the mother for her self-help. Distinguishing the cases in which a mother was seeking to change the child’s surname to that of the mother, eliminating the father’s surname, the Second Department disagreed with Justice Murphy, and held:

[T]he emotional and financial involvement of the father is not a bar to a change to hyphenated surnames.

Continue Reading Changing the Name of the Child of Divorced or Unwed Parents

Retirement Plan.jpgAfter 36 years of family law practice, I pride myself on having a good idea of what I don’t know.

The good news is that I can reach out for the help needed to make sure the bases are covered when drafting a divorce settlement agreement.  Matrimonial litigation has spawned a host of forensic specialities…

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In Howard, the appellate court had occasion to reverse an initial post-divorce Supreme Court decision in a visitation dispute, and to send the case back to the lower…

Change Buttonl.jpgEffective October 14, 2010, amendments to D.R.L. §236B(9) and F.C.A. §451 go into effect (Laws 2010, chap. 182; Bill #A8952).  They require that language be included in divorce settlement agreements to specifically opt out of a newly-created entitlement to a judicial modification of a child support order. Without such language, even a child…