The plaintiff former husband brought this state-court action action against his first wife seeking damages for her alleged false statements to the Citizenship and Immigration Service. The former husband blamed those statements for the Service’s conclusion that the the couple had not established a life together as husband and wife. The plaintiff also sought a judicial declaration that the requisite relationship had, in fact, existed.

In his August 28, 2013 decision in Kenan v. Campuzano (2013 N.Y. Misc. LEXIS 3929 | 2013 NY Slip Op 32056(U), New York County Supreme Court Justice Arthur F. Engoron dismissed the action.

The plaintiff met his first wife face-to-face in 2006 when he came to New York shortly after finding her on JDate. They married four months later. Two months after that, the wife filed a petition to sponsor her new husband for US citizenship with the US Citizenship and Immigration Services (“USCIS”). The couple divorced a year later. At the same time the wife withdrew her petition to sponsor her husband for US citizenship.

Just 3 or 4 months after that, in January or February 2008, the husband married another woman. The second marriage, too, came to an end within a relatively short period of time. However, before it had ended, the second wife, too, petitioned for her new husband’s US citizenship. That petition was denied in part upon USCIS’s determination that the first marriage was “for the sole purpose of evading immigration laws and obtaining an immigration benefit.”

The now twice-divorced husband brought this action to redress the alleged false statements made by his first wife to the USCIS. he also sought a declaratory judgment that the parties had “established a life together under the meaning of the law.”

The first wife moved to dismiss the complaint. Justice Engoron granted that motion.

Continue Reading State Court Rejects Action to Declare for Immigration Purposes the Bona Fides of Former Marriage

The failure of the now-deceased wife to disclose that she was suffering from terminal cancer at the time the parties entered their divorce settlement agreement was not a basis to set aside that agreement. So held the Appellate Division Second Department in its August 28, 2013 decision in Petrozza v. Franzen.

Richmond County Supreme Court Justice John A. Fusco had granted summary judgment dismissing the complaint in the husband’s plenary action to rescind the agreement brought against the executors of the wife’s estate. The husband had alleged that his wife had fraudulently and actively concealed her illness. That illness resulted in the wife’s death after the execution of the settlement agreement, but before the entry of a final judgment of divorce.

Affirming that dismissal, the Second Department noted that to demonstrate fraud, a plaintiff must show that the defendant “knowingly misrepresented or concealed a material fact for the purpose of inducing [him] to rely upon it, and that [he] justifiably relied upon such misrepresentation or concealment to his . . . detriment.”

Continue Reading Concealing Terminal Cancer Not Basis to Invalidate Divorce Settlement

The August 21, 2013 decision of the Appellate Division, Second Department in Patete v. Rodriguez may have expanded the credits available to the non-titled spouse when marital funds are expended on a separate-property asset.

When New York adopted its Equitable Distribution Law in 1980, courts were now longer bound by which spouse held title to an asset generated during the marriage. Upon divorce, the non-titled spouse could be awarded an equitable share.

Not all property of parties getting divorced, however, is “marital property” subject to Equitable Distribution. The law recognizes as “separate property,” assets owned by one of the spouses either before the marriage, or acquired through inheritance, or by gift from someone other than the other spouse, etc. The appreciation in the value of separate property is also separate property, subject to a claim that such appreciation is due to the contributions or efforts of the non-titled spouse.

Determining what is or should be marital and separate property, and each spouse’s equitable share of marital property is not always clear. Indeed, the rules and guidelines are not free from doubt.

Take last week’s decision in Patete, for example. This divorce was the second time around for these parties. They married for the first time in 1978. Incident to their first divorce in 1981, the wife conveyed her interest in the 68th Street, Maspeth, Queens marital residence to the husband.

The parties married again in 1985. At that time the husband still owned the 68th Street home. Again it was used as the marital residence. As the home was the husband’s property before the second marriage, it was deemed his separate property when the second marriage here ended in divorce.

In 1987, two years into the second marriage, however, the husband sold the 68th Street property. $125,000 of the proceeds were used to purchase the parties’ jointly-owned new marital residence on 64th Street in Maspeth.

The appellate court acknowledged that the 68th Street property remained the husband’s separate property until its sale in 1987. Thus, the $125,000 in sales proceeds used to purchase the jointly-owned 68th Street home was also his separate property. The husband was entitled to a separate property credit for his use of separate funds to purchase the 68th Street home.

However, between the date of the second marriage and the sale of the 68th Street home, marital funds were used to pay the mortgage on the husband’s separate-property 68th Street home. As a result, the Second Department held:

The [wife] should receive a credit for one-half of the marital funds used to the pay this mortgage on the plaintiff’s separate property.

The Court reported that the total amount of marital funds used for this purpose was $7,338.94.The Court did not state that this was the amount by which the principal amount due on the mortgage was reduced, just that such was the amount used to pay the mortgage.

Continue Reading Credits on Divorce for Using Marital Funds for Separate Property Assets

Considering the add-ons for private school, health care, child care, and extra-curricular activities, imposing a base child support obligation upon a father (the less-moneyed spouse) in excess of his pro rata share of the first $136,000 of combined parental income would be unjust and inappropriate. Such was the holding of Acting Supreme Court Kings County Justice Debra Silber in her August 12, 2013 decision in A.C. v. J.O.

That ruling, at first blush, would appear to be at odds with the Second Department’s August 14, 2013 decision in  Beroza v. Hendler, the subject of Monday’s blog post. There, the appellate court held it was improper for the trial court to have limited the base child support obligation of the father (the less moneyed spouse) to less than his pro rata share of the first $400,000 in combined parental income.

Any comparison, however, must be clouded by the vast number of factors that Justice Silber considered when deciding all of the issues incident to the parties’ divorce.

In A.C. v. J.O., at the time of the commencement of the divorce action in May, 2011, the parties had been married for almost 13 years. They had two children, a daughter now 12 and a son now 10. The parties were still living together. The wife, 52 years old, had her own dental practice, with income stipulated to be $251, 395. The husband, 47, worked as a first assistant director, primarily for television. He also wrote screenplays and recently made a full length film, which he both wrote and directed. The husband’s income was stipulated to be $171,706.

In a lengthy opinion, Justice Silber awarded the mother both physical and legal (decision-making) custody of the two children. Although both parents could handle parenting responsibilities alone, joint custody was not appropriate as the parents’ “cannot easily agree upon anything.” Justice Silber provided a detailed plan for the father’s “parental access” and consultation on major decisions.

Continue Reading No Child Support Awarded Upon Combined Parental Income in Excess of $136,000 Statutory Cap

Two published decisions last week ruled on the whether to award child support upon combined parental income in excess of the base child support amount. In the first, the Second Department in Beroza v. Hendler, found it was an improvident exercise of discretion for the trial court to have capped the parties’ combined parental income at $255,000.00. On appeal, the Second Department increased the cap to $400,000.00 and awarded the mother the father’s pro rata portion of that capped amount.

In the second case, A.C. v. J.O. (to be the subject of Wednesday’s blog post), Acting Kings County Supreme Court Justice Debra Silber, determined that although the parents had net combined parental income of $423,100.00, the father’s child support obligation would be limited to his pro rata share of the $136,000.00 cap.

In Beroza, the father had commenced this divorce action in 2001 after 11 years of marriage. At that time the oldest of the parties’ three children was 4½ years old and their twins were 18 months old. The parties were both educated professionals. The father was a veterinarian with a private practice devoted to horses and a related horse-boarding business and the mother was a partner in a group anesthesiology practice. Both parties worked throughout the marriage. the family enjoyed an affluent lifestyle in Laurel Hollow.

Underlying the parties’ 2008 divorce judgment, Nassau County Supreme Court Justice Ira Warshawsky imputed gross annual income to the father of $259,100.00. The father’s base annual child support obligation was fixed at as 29% of $200,000.00, or $4,833.33 monthly.

On the husband’s appeal from the 2008 judgment, the Second Department agreed with amount of the father’s imputed annual gross income, but remitted the matter to the Supreme Court because it had failed to properly set forth the parties’ pro rata shares of child support. Additionally, the lower court failed to adequately explain its application of the “precisely articulated, three-step method for determining child support’” pursuant to the Child Support Standards Act (Beroza v Hendler, 71 AD3d 615, 617, 896 N.Y.S.2d 144 [2010]).

On remittitur, Justice Warshawsky re-determined the parties’ respective annual net C.S.S.A. incomes to be $248,721.00 for the father and $487,693.00 for the mother, for net combined parental income of $736,414.00. However, for the purpose of determining the plaintiff’s child support obligation, the court capped combined parental income at $255,000.00.

Justice Warshawsky found that $255,000.00 adequately reflected a support level that met the needs and continuation of the children’s lifestyle, as dictated by the past spending practices of the parties. Justice Warshawsky applied the 29% statutory percentage to combined parental income capped at $255,000.00 ($73,950.00 total support obligation), and the calculated that the husband’s 33.7% pro rata support obligation at $24,921.00, annually, or $2,076.75, monthly.

The Second Department modified. Although he had articulated his analysis pursuant to the three-step method for determining child support embodied in the C.S.S.A. guidelines, Justice Warshawsky, the appellate court held, improvidently exercised his discretion in capping the parties’ combined parental income at $255,000.00.

Continue Reading $400,000 Combined Parental Income Cap Imposed by Second Department when Determining Father’s Child Support Obligation

A court’s reduction of a divorce judgment’s child support obligations, incorporated from a settlement agreement that survived the entry of that judgment, does not result in a modification of the agreement. The shortfall may still be collected through a separate action to enforce the contract.

As Nassau County Supreme Court Justice Leonard D. Steinman noted in his July 1, 2013 decision in N.S. v. A.S., N.Y.L.J. July 22, 2013, such has been the law of this State for over 70 years:

A modification of a divorce judgment or decree providing that a party is to pay a sum less than he agreed to pay does not relieve such party of any contractual obligation.

In this case, the parties entered a Stipulation of Settlement in January, 2003,resolving all issues stemming from their divorce proceedings. The parties agreed that the agreement would be incorporated but not merged into their judgment of divorce.

Among the issues resolved were custody and child support for their son, then 2½ years old. It was agreed that the wife  would receive child support from the husband in the amount of $34,000 per year ($2,833.33 per month) for 48 months and thereafter the sum of $39,146 per year ($3,262.16 per month) The increased amount coinciding with the cessation of  four years of maintenance payments to the wife at $3,833.33 per month.

The agreement reflected the ex-husband’s 2001 income was $312,121. The agreement, itself, provided that if the ex-husband’s income were to dip below $250,000, the parties would attempt to renegotiate the maintenance amount. If unsuccessful, the ex-husband could seek a downward modification of his maintenance obligation from the court. The agreement did not provide to the ex-husband with a concomitant right to seek a downward modification of his child support obligations in the event of a reduction in his income.

In April 2004, ex-husband became unemployed and subsequently took a position at the reduced salary of $150,000. In March 2006, the ex-husband moved for a downward modification of his child support and maintenance obligations (by that time, the ex-husband’s maintenance obligations had expired, but he claimed that there were arrears owed to his ex-wife based which he looked to cancel).

Continue Reading Contract Enforcement Available Despite Successful Downward Modification of Child Support

In determining how to allocate college expenses between parents, a court must impute income to a parent for any payment of those expenses by the family of that parent. Such was the holding of the Appellate Division, Second Department, in its July 31, 2013 decision in Kiernan v. Martin.

The facts are not made clear in the opinion. However, the father had testified he received funds from his family to pay for the children’s college expenses. These funds were not loans that the father was obligated to repay.

Putnam County Family Court Support Magistrate Rachelle Kaufman ignored these funds when allocating 67% of the college expenses for the parties’ children to the mother and 33% to the father. (The mother was also directed to pay the father $28,210.02 in arrears for college expenses.) Putnam County Family Court Judge James T. Rooney denied the mother’s objections to that order.

The Second Department reversed, holding that although the record supported the conclusion that the mother should share in the college expenses of the subject children, the Support Magistrate improvidently exercised her discretion by failing to impute additional income to the father for the money he received from his family for the children’s college expenses.

The Second Department vacated the order and remitted the matter to the Family Court for a new determination of the parties’ respective obligations to pay college expenses. That determination is to follow a report from the Support Magistrate on the amount of money the father received from his family members for the children’s college expenses.

The Second Department mandated that gifts targeted to pay for college made by the family of a parent be deemed income to that parent.

One-of-a-kind are not the type of regularly-received gifts normally imputed as income to the recipient for child support purposes. The impact, here, of the mandate is not clear.

Suppose the father makes $30,000 per year; the mother $60,000. Suppose further that the father’s parents make a gift of $30,000 towards the child’s $50,000 in expenses to attend a private college for freshman year.

Is the import of this decision to mandate that the father be deemed to earn $60,000 per year, with the remaining $20,000 of college expenses for the year (after applying the grandparents’ $30,000 gift) thus to be divided 50/50, or $10,000 to each parent? Why penalize the father? Should the $30,000 given by the father’s parents be subtracted from the expenses for the year, with the remaining $20,000 in expenses allocated 67% to the mother and 33% to the father? Or, after deeming the father to earn $60,000 per year, and allocating expenses between the parents 50/50 (or $25,000 to each parent), does the father then get to apply his parents’ $30,000 gift against his $25,000 share (and carry forward the extra $5,000 to the next year)?

Why, as the Second Department ruled, should the mother benefit from this special gift from the children’s grandparents? Was it really an abuse of discretion for Magistrate Kaufman to rule that the mother should not so benefit?

Do the parents have to go back to court the next year for a new allocation when the grandparents decide not to repeat their gift? Does a court presume that this gift is available every year? If grandparents intend to make such a gift, should they wait until a court has made its decision on allocation, and only then give funds defraying their child’s share of the grandchild’s expenses?

In Kiernan,  Hugh B. Ehrenzweig, of White Plains, represented the mother. Mitchell Lieberman, of  Lieberman & Lebovit, of Yorktown Heights, represented the father.

It is common for a divorce settlement agreement to provide that a child will be emancipated if he or she leaves the residence of the custodial parent. The result is the stated reduction in child support payments to the custodial parent. However, if the child not only leaves the custodial parent, but moves in with the non-custodial parent, may that parent obtain child support from the former custodial parent? That will depend on the language, or more particularly, the lack of language of the parents’ agreement.

Such is the lesson of the July 10, 2013 decision of the Appellate Division, Second Department, in Samuelson v. Samuelson. In that case, the parties were divorced in January, 2011. The divorce judgment incorporated the parties’ 2009 surviving stipulation of settlement.

Under that agreement, the father agreed to pay the mother basic child support of $1,150 per month for the parties’ two children until the occurrence of an “emancipation event,” defined to include a “change in custody.” The stipulation further provided that in the event one child was emancipated, the father’s basic child support obligation would be reduced to $846 per month.

Two months after the divorce judgment was entered, the parties agreed to transfer custody of their son from the mother to the father. Several months later, the father moved for an award of child support from the mother, to be “credited against my child support payments re our minor daughter.” The father claimed he was on the verge of personal bankruptcy.

Supreme Court Queens County Justice William Harrington denied the father’s motion, accepting the mother’s argument, and finding that the parties’ obligations were set by their agreement. The father failed to establish an unanticipated and unreasonable change in circumstances, or that the child’s needs were not being met.

The Second Department affirmed. The parties’ agreement was binding. Since the stipulation set forth the plaintiff’s child support obligation in the event of a change of custody of one of the children, a change in custody of one of the children could not be considered unanticipated.

Continue Reading Child Support: When One of the Children Switches Homes

The fact that a father set his daughter up with her own apartment when not away at college could not be used by the father as a basis to discontinue making child support payments to the mother.

Such was the holding in Trepel v. Trepel, a July 12, 2013 decision New York County Supreme Court Justice Lori S. Sattler.

At its heart, this decision was based upon the language of the parties’ surviving divorce stipulation of settlement. Under that stipulation, emancipation for child support purposes did include a change of full-time residence away from the Mother. Under the stipulation,  emancipation  included:

[The daughter’s] residing full-time away from the home of the Mother upon and after her 18th birthday, except that residence at boarding school, college or graduate school, or temporarily during summer camp or other organized summer program, shall not be deemed an Emancipation. The period, if any, from [the daughter’s] return to residence in the home of the Mother until the earliest of any other emancipation event shall be deemed a period prior to Emancipation for all purposes under this Agreement.

The father claimed that his daughter, who turned 18 in April, 2012, was emancipated under this clause as of November, 2012.

On an application by the mother to compel the father to continue paying child support, the father submitted his daughter’s affidavit. According to the daughter, in October, 2012 the mother had told her that she was going to move to Philadelphia to live with her boyfriend, which the mother did in November, 2012. The father then found an apartment for his daughter, sending her pictures of it while away at school at Emory College in Atlanta. The daughter signed a lease in November, 2012 and moved in over Christmas break from school after she and her father purchased furniture and household supplies.

Continue Reading Child Support Continues: Full-Time College Student With Own Apartment When Not At School Does Not Reside "Full-Time Away From the Home of the Mother"

A wife’s right to reside in what has been her marital residence for four years, and whose right to do so stemmed not merely from the home-owner’s  permission, but from a true family relationship, cannot be summarily evicted as a mere licensee.  Such was the holding of Nassau County District Court Judge Eric Bjorneby in his June 20, 2013 decision in Kakwani v. Kakwani.

Ms. Anjili Kakwani (the “petitioner”), her brother (Amit Kakwani [the “husband”]) and their parents moved into a one family residence in Carle Place in 2004. The petitioner’s mother, as trustee of a family trust, conveyed the home to the petitioner on December 8, 2006.

In March, 2008 Amit Kakwani traveled to India where, for the first time, he met his arranged bride-to-be, the respondent Nisha Kakwani (the “wife”). In September, 2008, the petitioner and Amit traveled to India where the petitioner met her future sister-in-law for the first time. In November, 2008 the respondent moved by herself to the United States and into the Kakwani family home. On December 22, 2008 respondent and Amit Kakwani were married.

Amit and Nisha resided in the master bedroom of the family home, as husband and wife, until sometime in 2012 or early 2013 when Amit moved out of the master bedroom and into another room in the house.
In September, 2013, the petitioner had respondent served with a 10-Day Notice to Quit.

The petitioner brought this summary proceeding pursuant to RPAPL §713(7) to evict the respondent (the petitioner’s sister-in-law) on the ground that respondent was a licensee whose license to reside at the premises had been revoked. (The husband, Amit, was not named as a respondent in this proceeding, nor had rent ever been sought from or paid by Amit [or by his wife, for that matter].)

The wife sought dismissal of the proceeding, claiming that she is a family member not subject to eviction in a summary proceeding brought pursuant to RPAPL §713(7).

Continue Reading Summary Proceedings Are Not Available to Evict Wife (Sister-in-Law of Owner)