What does a court do with a wife who claims not to have discovered that she was a million-dollar winner of a May 19, 2011 lottery drawing until only days before the ticket would have expired a year later, and 11 months after she was awarded temporary support and counsel fees in her pending divorce action?

Almost a year ago, the media covered the claim of Lolymary Questel, a Queens pre-school teacher, that she discovered her million-dollar lottery ticket in her purse only days before the one-year deadline to produce the ticket to the Lottery Commission would have expired. “I was cleaning out an old bag and found some Lottery tickets,” explained Questel to the Lottery Commission. “I checked the drawing results on the Lottery’s website and realized one of the tickets was a million dollar winner.” Questel, a regular Mega Millions player, spent $1 on a set of Quick Pick numbers for the twice weekly drawing.

Seven months before the drawing, Ms. Questel’s husband had commenced his divorce action on October 28, 2010 (just weeks after New York’s no-fault law went into effect).

On June 22, 2011, 5 weeks after the lottery drawing, Queens County Supreme Court Justice Pam B. Jackman-Brown awarded Ms. Questel temporary maintenance of $127.39 per week and $4,500.00 in interim counsel fees. In April, 2011, less than a month before the drawing, Mr. and Ms. Questel had entered a Stipulation under which Mr. Questel agreed to pay C.S.S.A.-formula interim child support and his then  77% pro rata share of educational, extracurricular, summer camp and unreimbursed health expenses.

A week after Ms. Questel claimed her prize in May, 2012, Mr. Questel asked Justice Jackman-Brown to declare the lottery winnings marital property, to retroactively vacate the maintenance and counsel fee awards, and to modify the parties’ April, 2011 child support So-Ordered Stipulation.

In her decision of February 4, 2013 in Questel v. Questel, Justice Jackman-Brown ruled that the $623,040.00 in lump-sum lottery proceeds were not marital property as the winning drawing occurred 7 months after Mr. Questel had commenced his divorce action. [Question: How would the Court have handled efforts by Mr. Questel to discontinue his action?]

Justice Jackman-Brown, however, did rule that Ms. Questel’s receipt of her lottery prize was a change of circumstances warranting modification and vacatur of the order for temporary maintenance. However, the vacatur would only be made retroactive to the date of Mr. Questel’s new application, May 25, 2012.

The Court, however, did say that at the time of the June 22, 2011 Decision and Order, Ms. Questel “was not forthright in disclosing her winnings on May 2011 and that she was choosing to accept the proceeds a year later.” It was only upon her husband’s new application that Ms. Questel “fully disclosed the circumstances of the lottery winning and the drawing of the proceeds from the lottery.”

On that basis, the Court vacated its earlier order awarding Ms. Questel $4,500.00 in temporary counsel fees. Mr. Questel was given “a credit” for the $2,000.00 he had already paid towards the prior order of interim counsel fees. Ms. Questel would be responsible for the balance of the prior award and other counsel fees accrued.

As to the parties’ So-Ordered Stipulation concerning child support, Justice Jackman-Brown declined to consider the lottery winnings, a single non-recurring payment, as income for the purpose of calculating the parties’ gross incomes and combined parental income. Accordingly, the Court would not modify the previously stipulated 77%/23% pro rata shares for unreimbursed health expenses. However the Court did reduce Mr. Questel’s 77% share to 50% of  educational and extracurricular expenses as such is to be determined not on the basis of pro rata income, but rather in light of the “circumstances of the case, the parties’ circumstances, and the best interests of the child.” [There was no discussion of the burden of proof necessary to modify a Stipulation.]

The Court did not order any restraints upon the lottery winnings. Moreover, Mr. Questel had included an application for his own temporary award of counsel fees. However, not only did Mr. Questel fail to include a [new?] statement of net worth, but as the Court did not consider Ms. Questel’s lottery winnings proceeds as income, the parties’ incomes had remained unchanged for the purposes of an analysis of who was the monied spouse. While an interim award of counsel fees was denied, because Ms. Questel was not forthright, Mr. Questel was awarded counsel fees incurred for the current motion.

John O’Donnell of Manhattan represented Ms. Questel; Charles Zolot of Jackson Heights, represented Mr. Questel.