The calculations required by the C.S.S.A. to be made by an arbitrator in child support determinations provide the “extraordinary circumstances” needed  to warrant court-ordered disclosure of documents from a self-employed ex-husband. Such was the ruling of Kings County Supreme Court Justice Jeffrey S. Sunshine in his November 6, 2013 decision in Weisz v. Weisz.

In 2003, the Weisz’s had entered into a stipulation of settlement of their divorce in which they agreed that all controversies, disputes, or interpretation of this agreement, would be arbitrated by a specified rabbi. The 2004 judgment of divorce incorporated by reference that stipulation which survived and did not merge into the judgment.

In 2012, Ms. Weisz brought on an order to show cause seeking a stay of a post-judgment arbitration proceeding and the disqualification of the specified rabbi as the arbitrator. The stay was granted as to custody and visitation issues, but denied as to all financial issues.

The issues to be arbitrated related to an upward modification of child support, child support arrears, unreimbursed medical arrears, child support statutory add-on arrears, tutor expenses and spousal support.

Continue Reading Court Orders Disclosure to Aid in Arbitration of Child Support Issues

A non-written agreement for cohabitants to share retirement benefits can be enforceable under a breach of contract claim, but will not support claims to impose a constructive trust, or for unjust enrichment or an accounting. Such was the holding of the Appellate Division, Second Department, in its November 13, 2013 decision in Dee v. Rakower.

In the majority opinion written by Justice Leonard B. Austin, the appellate court relied heavily on the facts as pleaded in the complaint. The parties had lived together in a committed, same-sex relationship for nearly 18 years. Two children were born of this relationship; each party being the biological parent of one child, legally adopted by the other.

After the relationship ended in 2007 (before the passage of New York’s Marriage Equality Act [see, Domestic Relations Law §§ 10-a, 10-b]), Ms. Dee commenced this action seeking to enforce the alleged oral “joint venture/partnership” agreement. Under that agreement, Ms. Dee was to share in assets, including Ms. Rakower’s retirement contributions and earnings, in exchange for Ms. Dee leaving her full-time job to care for the parties’ children.

Before they had children, each party was employed full-time, earning a salary and retirement benefits. The parties pooled their respective salaries to meet their shared expenses. The parties purchased a house as joint tenants with rights of survivorship.

After the parties’ first child was born, the parties agreed, it was alleged, that given the cost of child care, Ms. Dee would eschew her full-time employment and work part-time so that she could be home with the children and perform other non-financial services for the benefit of the family and for the parties’ partnership and/or joint venture while Ms Rakower would continue to work full-time. Ms. Dee alleged that her decision to leave her full-time employment was based upon the parties’ specific agreement that Ms. Dee would be entitled to one half of Ms. Rakower’s retirement contributions and earnings for the period.

Ms. Rakower moved to dismiss Ms. Dee’s complaint. Kings County Supreme Court Justice Yvonne Lewis granted that motion, determining that the facts did not support causes of action for breach of contract, to impose a constructive trust, for unjust enrichment or for an accounting.

Continue Reading Oral Cohabitation Contract Claim Withstands Motion To Dismiss

The same-sex spouse of an artificially-inseminated biological mother is entitled to seek custody and visitation of “their” child in the the parents’ divorce action. Such was the holding of the Appellate Division, Second Department, in its November 6, 2013 decision of in Counihan v. Bishop.

In May 2009, Ms. Counihan and Ms. Bishop traveled to Connecticut to be married. They then returned to live in their home in New York. Subsequently, they decided to have a child. Ms. Bishop was artificially inseminated, and, in September 2010, Ms. Bishop gave birth to a child.

Ms. Counihan was listed as the second mother on the child’s birth certificate. The child’s last name is the hyphenated last names of Ms. Counihan and Ms. Bishop. In 2012, the parties separated, and Ms. Bishop and the child lived apart from Ms. Counihan for several months. However, Ms. Counihan continued to see the child a few times per week, which included overnight visits. The parties briefly lived with each other again at the end of 2012, but their attempt to reconcile failed, and Ms. Bishop again moved with the child to another residence.

In January 2013, Ms. Counihan commenced this action for a divorce and ancillary relief. She sought custody of the child, or in the alternative, visitation. Ms. Bishop cross-moved, inter alia, for sole custody of the child.

In the order appealed from, Suffolk County Supreme Court Justice John C. Bivona determined that Ms. Counihan lacked standing to seek custody or visitation because she was not the child’s biological or adoptive parent. Without a hearing, Justice Bivona had denied Ms. Counihan’s motion and granted Ms. Bishop’s cross-motion for sole custody.

Continue Reading Same-Sex Spouse of Biological Mother May Seek Custody and Visitation

Absent a court order specifying which parent is entitled to make educational decisions, the New York City Department of Education will follow the instructions of the primary physical custodian.

The policy was upheld in the October 22, 2013 decision of the First Department in Jennings v. Walcott. The appellate court reversed  the determination of  Supreme Court, New York County Justice Alexander W. Hunter, Jr., which had declared arbitrary and capricious the Department’s policy of deferring in educational decisions to the parent with primary physical custody. Justice Hunter had ordered the Department to include the father as a joint legal guardian on his child’s school file.

The policy of the Department of Education is to take direction from the parent with primary physical custody where, as here:

the divorced parents of a student have joint legal custody of the student;

the parents are unable to agree on a decision as to the student’s education; and

there is no court order specifying who is entitled to make educational decisions.

The Department had adopted this policy to avoid becoming entangled in custody disputes.

In Jennings, the First Department held that given the options available to the Department for resolving such a disagreement, it could not be said that the policy was without a rational basis in the record. It was not, therefore, arbitrary and capricious.

The appellate court pointed out that this policy did not affect the father’s legal rights as a parent with joint legal, but not primary physical, custody. The father was free to pursue a modification of his judgment of divorce to provide for joint decision-making as to the child’s education.

The opinion did not recite whether or not any stipulation of settlement incorporated into the father’s divorce decree contained a decision-making clause, or whether such a stipulation or the judgment merely declared the parents would share joint legal custody. Similarly, it was not stated whether the Department was refusing to honor an agreement that was incorporated by reference into the divorce judgment.

However, to be prudent, all parental rights should be specifically set forth in the judgment of divorce.

Kathy H. Chang, of counsel to Michael A. Cardozo, New York City’s Corporation Counsel, represented the Department. Thomas D. Shanahan, P.C., represented the father.

Mid-trial in a “high-end” matrimonial, it was held that the “monied” husband would not be required to continue to pay his wife’s continuing fees. Rather, in his October 10, 2013 decision in Sykes v. Sykes, Manhattan Supreme Court Justice Matthew F. Cooper held that such fees would be paid from $2 million in marital assets; each side to use half of the sum to pay his or her own outstanding and prospective counsel and expert fees, subject to reallocation after trial.

From the divorce action’s commencement in December, 2010, until February, 2013, just before the trial, Mr. Sykes had paid close to $1 million in counsel fees for himself and, voluntarily, for his wife. Then, in March 2013, the wife’s attorneys billed the husband $238,196 for their services rendered that month. He paid that bill in full. In April 2013, during which the first eight days of trial took place, the wife’s attorneys billed the husband $355,329 for their services. In addition, the husband was billed $74,853 for the wife’s experts’ services. Mr. Sykes, then decided he could no longer foot the litigation costs for both sides. He declined to pay the April 2013 bills or any subsequent bills incurred by the wife for her attorneys’ or experts’ services absent further order of the court.

Instead, Mr. Sykes, moved for an order authorizing him to release $2 million from marital funds and evenly share that amount with his wife so that each party could pay his or her own interim litigation expenses. He argued that not only had his income and personal funds significantly declined over the last two years, but that permitting the wife to proceed without “skin in the game” (a phrase attributed to Warren Buffett), enabled her to push forward with the litigation without any concern for its cost or any eye towards settlement.

Ms. Sykes opposed the release of the money for the payment of counsel and expert fees. She maintained that she had “skin in the game” by virtue of having to travel from France to make periodic court appearances; she was every bit as motivated as the husband to reach a fair resolution of the case. Moreover, Ms. Sykes argued that because she had no income other than the husband’s $75,000 monthly interim maintenance and child support support payments, she must be considered the nonmonied spouse. Thus, she was entitled under statutory and case law to have her husband pay her interim legal fees. Moreover, she claimed the law was clear: interim counsel fees must come from her husband’s income and separate funds rather than marital funds so as not to deplete her assets.

Continue Reading Wife Given “Skin In The Game” By Having To Pay Her Own Interim Counsel Fees Using Marital Assets

“Chutzpah” may be defined as audacity (wikipedia); or unmitigated effrontery, impudence or gall (urbandictionary.com and dictionary.reference.com). Perhaps Rosemarie B.T. should be pictured in those sources [no, that is not her pictured to the right].

Rosemarie married her second husband, Antony, in a civil ceremony in Beacon, NY, on April 28, 2000. Upon the parties’ application for a marriage license, Rosemarie did not indicate that she was a party to a previous marriage. However, it was not until a month after the parties’ marriage that her Kings County Supreme Court divorce judgment from her first husband was signed on May 24, 2000 (and entered July 6, 2000).

This 2011 Dutchess County Supreme Court action was brought by Antony to declare the marriage void. Rosemarie counterclaimed for divorce.

The October 4, 2013 decision of Acting Supreme Court Justice James D. Pagones (and Judge of the Surrogate’s Court) in Antony T. v. Rosemarie B.T. resolved Rosemarie’s motion to take this matter off the trial calendar, award her $2,543.31 per month as interim maintenance; and to direct Antony to pay $20,000.00 for interim counsel fees. It also resolved Antony’s motion for summary judgment declaring that his marriage is void and to dismiss Rosemarie’s counterclaim for divorce.

New York allows a person to have solely one spouse at a time, thus, polygamy and bigamy are prohibited in New York [citation omitted]. DRL §6 states that where one of the parties has a living spouse from a prior marriage and that prior marriage was not dissolved by either an annulment, divorce, or pursuant to DRL § 220, the second marriage is void ab initio . . . .

Justice Pagones ruled that the documents submitted by Antony established, prima facie, that Rosemarie was still legally married to another man at the time of the parties’ wedding and, therefore, the “marriage” of the parties on April 28, 2000 is void.

Moreover, Antony introduced evidence that Rosemarie married, once again, on February 14, 2002 [Happy Valentine’s Day]. Thus, Antony established, prima facie, that Rosemarie was precluded from seeking permanent maintenance.

As Rosemarie failed to raise an issue of fact requiring resolution by trial, Justice Pagones granted Antony summary judgment declaring the April 28, 2000 marriage void, dismissing Rosemarie’s counterclaim for divorce, and holding that Rosemarie was precluded from seeking maintenance.

It is noted that Domestic Relations Law §236(B)(2) includes actions to declare the nullity of a void marriage within the category of “matrimonial actions.” Under D.R.L. §236(B)(5-a), in any matrimonial action, the court “shall” make an award of temporary maintenance in accordance with the formula enacted in 2010. Under D.R.L. §236(B)(6), post-divorce maintenance “may” be ordered in any matrimonial action in such amount as justice requires.

Here, however, Antony was saved from the potential maintenance awards by Rosemarie’s “third” marriage. As the marriage to Antony was void from its beginning, Rosemarie’s third marriage was presumably valid because when it occurred in 2002, Rosemarie was divorced from her first husband. The second marriage (to Antony) didn’t count.

Betty J. Potenza, of Highland represented the husband. Michael S. Pascazi, of Pascazi Law Offices, PLLC, of Fishkill, represented the wife.

 

Where a divorce settlement agreement provides that the parties have agreed to deviate from the Child Support Standards Act formula in part because of the time the “non-custodial” parent is to spend with the children, a substantial reduction in that visitation may result in an increase in the child support obligation.

Such was the holding of the Fourth Department in its September 27, 2013 decision in Gallagher v. Gallagher.

That parties’ original child support obligation was fixed by their separation agreement. That separation agreement had been incorporated, but did not merge into the parties’ Judgment of Divorce. The agreement recited that the father’s obligation varied from the Child Support Standards Act formula due to several factors including the fact that the children were to spend a significant portion of time with the father pursuant to the visitation schedule set forth in the separation agreement. [We are not provided with the amount of the child support obligation, the incomes of the parties, nor the agreement’s visitation schedule.]

When the father’s relationship with the children broke down, the mother petitioned the Steuben County Family Court for an upward modification of the father’s child support obligation. She alleged that there was now only sporadic visitation with the children, as a result of which the mother claimed a concomitant increase in her child-rearing expenses.

The evidence presented before Family Court Judge Joseph W. Latham established that such a breakdown occurred. However, Judge Latham ruled that the mother failed to establish a sufficient change in circumstances to warrant modification of the father’s child support obligation.

The Fourth Department disagreed. Quoting the 2002 decision of the Court of Appeals in Gravlin v. Ruppert, 98 N.Y.2d 1, 6, 743 N.Y.S.2d 773 (2002), the Fourth Department stated:

The complete breakdown in the visitation arrangement, which effectively extinguished [the father’s] support obligation, constituted an unanticipated change in circumstances that created the need for modification of the child support obligations.

The Fourth Department  therefore reversed the order, reinstated the mother’s petition, and remitted the matter to the Family Court for a determination of the appropriate amount of support to be paid by the father, after a further hearing if necessary.

Continue Reading Sporadic Visitation by Father is Basis to Increase Child Support

Complaining too much about visitation violations may just cause you to lose joint custody. Such may be the lesson to be learned from the September 19, 2013 decision of the Third Department in Green v. Green.

The parties were the parents of a son born in 2004 and a daughter born in 2008. Pursuant to a prior order of the Family Court, the parents shared joint custody of their children, with the mother having primary physical custody.

Within days of the entry of that prior Family Court custody order, the father filed the first of six petitions alleging that the mother was in violation of the custody order. The five other violation petitions were filed over the next several months. The father also filed a petition seeking modification of the prior custody order.

Following a hearing, Judge Dennis K. McDermott of the Madision County Family Court found that there had not been a change in circumstances warranting modification of physical custody. However, because the acrimonious relationship of the parties rendered joint legal custody inappropriate, Judge McDermott awarded sole legal custody to the mother. Judge McDermott also made certain adjustments to the visitation schedule.

On appeal, the Third Department accorded Judge McDermott’s factual findings appropriate deference. The appellate court found no error in the determination that the father failed to establish a change in circumstances sufficient to warrant a change in physical custody.

Moreover, the Third Department found awarding sole legal custody to the mother was appropriate:

[B]ased upon this record, it is evident that the parties are unable to effectively communicate and cooperate with one another. Therefore, upon consideration of all of the circumstances, we conclude that Family Court properly amended the prior order to award sole legal custody to the mother.

Finally, the Third Department found that the adjustments made to the visitation schedule were supported by the record.

Comment: Credibility is greatly affected by demeanor. I am sure both parties in the above case perceived the righteousness of their own positions. However, the manner in which one parent handles perceived violations by the other parent and then how that parent approaches the court are critical to ultimate determinations. No court likes to see a parent crying to it every single time there is a perceived violation. Good faith, maturity, patience and reasonable efforts must be shown.

Many recent decisions have shown the courts’ sensitivity to each parent’s responsibility to foster the relationship between the children and the other parent. However, it is also clear that each parent must meet the other at least part way.

In this case, Theodore W. Stenuf, of Minoa, represented the father. Mark A. Schaeber, of Liverpool, served as Attorney for the Children.

In its September 18, 2013 decision in Abramson v. Gavares, the Second Department briefly reviewed the interplay between prenuptial agreements and interim awards in divorce actions.

In this case, the parties were married in 2004 and hade one child, born in 2006. This divorce action was commenced in 2009 [before the 2010 laws on counsel fees and temporary maintenance].

On the wife’s motion for various relief pendente lite, Nassau County Supreme Court Justice Margaret C. Reilly had awarded the wife $4,250 per month temporary child support, $1,000 per month in temporary maintenance, and a $15,000 interim counsel fee. The husband was also directed to pay 100% of the costs of the court-appointed forensic evaluator and the attorney for the parties’ child.

On appeal, the husband challenged certain parts of the award on the basis of the prenuptial agreement entered into by the parties. The Second Department upheld the awards of child support and counsel fees, but struck the award of temporary maintenance.

Continue Reading Second Department Approves Interim Counsel Fee in Excess of Prenuptial Agreement’s Cap, But Reverses Award of Interim Spousal Maintenance

An ex-wife’s failure to obtain a Domestic Relations Order during her ex-husband’s lifetime did not bar relief after his death. The divorce settlement agreement provision that granted her the right to receive the ex-husband’s retirement plan death benefits could be enforced after his death more than seven years after the divorce judgment was entered.

Suchwas the holding of New York County Supreme Court Justice Debra A. James, in the August, 2013 decision in Paschall v. New York City Employees Retirement System.

After 20 years of marriage, Diana and Randy Paschall were divorced. Their 2004 divorce judgment incorporated the terms of their surviving 2003 Settlement Agreement.

By the time of his death in 2011, Mr. Paschall  had married again to Jewel Paschall. Jewel was issued letters of administration for Randy’s estate. She also exercised her personal right of election to take her elective share of her late husband’s estate pursuant to New York Estates, Powers & Trust Law 5-1.1-A.

During his  marriage to Diana, Mr. Paschall accrued benefits under the New York City Employees’ Retirement System (NYCERS). Diana and Randy’s divorce Settlement Agreement provided that in the event of Randy’s death before Diana, Diana would be entitled to Randy’s survivor annuity. The Agreement required Randy to designate Diana as his death benefit beneficiary.

Randy never designated Diana as his death benefit beneficiary. No Domestic Relations Order was ever entered by which Diana’s entitlement was ordered, nor was NYCERS otherwise notified of Diana’s entitlement before Randy’s death. Indeed, in 2009, Randy had designated his children as beneficiaries of his death benefit.

Here, Diana had sued Jewell and NYCERS, itself, seeking to enforce the Settlement Agreement insofar as it gave her rights to receive Randy’s retirement system death benefit.

Continue Reading Ex-Wife's Failure to Obtain DRO Before Ex-Husband's Death Not a Bar to Recovery of Retirement Plan Death Benefits