In two decisions this month, appellate courts reversed Family Court orders and dismissed petitions for grandparent visitation.

In Pinsky v. Botnick, the petitioner was the paternal grandmother. Her son had died at the age of 35, survived by his widow and 4 children, then ages 9, 7, 5, and 3. Her Family Court petition for visitation was filed approximately six weeks after her son’s death.

At the hearing, the grandmother testified that she had a close relationship with the children. The grandmother also acknowledged that the mother was a fit parent. However, according to the mother, the children were hysterical about the court proceeding, fearful that the grandmother would take them away from their mother. The attorney for the children informed the Family Court that the children did not wish to see their grandparents.

Nassau County Family Court J.H.O. (and former Judge) Elaine Jackson Stack denied the mother’s application to appoint a neutral forensic evaluator. The mother retained Peter J. Favaro, Ph.D., whose report was received in evidence. Dr. Favaro reported that the children were experiencing a “complicated bereavement”: the three older children had reported having bad dreams about seeing their grandmother and that she would take them away. Dr. Favaro concluded that forcing interaction between the children and grandparents would only strengthen those fears.

Continue Reading Grandmothers Denied Visitation in Two Recent Appellate Reversals

Where the parties’ joint legal custody agreement only provided for each parent to have equal input on all major decisions, including education, but did not provide for conflict resolution, the mother, after a hearing, was awarded temporary decision-making authority. Such was the holding of the April 11, 2013 decision of the Appellate Division, First Department, in Sequeira v. Sequeira.

The appellate court held that on the motion for such relief, New York County Supreme Court Justice Lori Sattler properly exercised her discretion in determining that it was in the child’s best interest to award the mother that power.

The parties had agreed to joint legal custody, which their agreement defined as including equal input with respect to all major decisions, including education. They did not, however, provide for a situation, such as the one presented, where the parents could not agree on where their child should attend school. The failure of the parents to agree on this issue thus presented the change in circumstances necessary for the court to modify the parties’ arrangement to protect the best interests of the child.

The record supported the temporary award of educational decision-making to the mother. The father’s due process rights were honored by the fair hearing held by Justice Sattler. He was permitted to cross-examine the mother, testify on his own behalf, and argue his case. As to this argument to the appellate court that he was denied an opportunity to hire an attorney, he never made a request to do so.

Comment: “Joint custody” is a nebulous term. Thus, care should be taken to carefully define what the parties intend by the use of that term. If shared decision-making is intended, the particular subjects or criteria requiring the parents’ agreement should be specified. Moreover, the procedure  to resolve conflict must be detailed. The steps to be taken before asking a court to intervene should be made clear. Whether the parents are required to work with a therapist, consult an expert, or engage a mediator as a condition to making a judicial application should be set forth. Moreover, although in New York, the delegation of decision-making to a third party other than the court may be against public policy, providing some authority to an agreed-upon tie breaker may be determined to be in the best interests of the children.

On this appeal, the father represented himself. The mother was represented by Lara Ott of Stein & Ott, LLP, of Manhattan.

Kings County Justice Matthew J. D’Emic, in his April 3, 2013 decision in E.S. v. S.S., blamed both parents for the stress upon their young daughters. As a result, no change was made to the custody and visitation provisions of the parents’ divorce judgment.

Both sides sought changes to the judgment’s visitation schedule. The mother asked to partially eliminate visitation; the father sought sole custody, as well as changes to the pick-up and drop-off location.

Reviewing the parties’ combative history, Justice D’Emic noted that before the divorce judgment, the parents had held onto their strident positions longer than they served a purpose. Therapy for the elder daughter was sought. The father was forced to endure a lengthy and humiliating term of supervised visitation with both of his children.

The long and contentious trial followed,which the father estimated cost the parties more than $1,000,000.00. Not surprisingly, the Court noted, neither parent has recovered, and motions for various relief are submitted on a regular basis.

Several months ago, at the mother’s request, and based on reports of the children’s stress over visitation with the father, the court allowed the mother to seek family therapy, encouraging the father to participate. Neither side was now satisfied with the way things were going.

Unfortunately, courts are never in an ideal position to make decisions for parents. More unfortunate is the fact that courts are too often asked to do so.

The children’s therapist recommended that the whole family, together with a parent coordinator “all meet together and work out a clear agreement specifying the parameters of visitation to provide the children with some sense of security and control over visitation with the father.”

To alleviate stress and to provide consistency and regularity to the children, the Court directed the parents to adhere literally to the visitation provisions of the divorce judgment.

Furthermore, the mother and the father are directed to exercise custody and visitation in a manner appropriate to their responsibilities to their daughters. Maturity must have a role here.

Justice D’Emic made no change to prior award of sole custody to the mother, or to the decision-making rights and visitation schedule for the father.

It is the court’s opinion that any stress to the daughters is being caused by their parents nit-picking, one-upmanship and lingering resentments. If the relationship between father and daughters is strained, it is up to the parents – both parents – to repair it.

The father was opposed to the family therapist. Nevertheless, Justice D’Emic encouraged him to cooperate and participate in the therapy as a step towards repairing his relationship with his daughters.

The Court concluded that the issues between the parents were not insurmountable.  “With a minimum of trust and accommodation these girls can have an enjoyable experience with both parents – an experience to which they are entitled.”

Aurora Cassirer, of Troutman Sanders LLP, of Manhattan, represented the father; Mark Holtzer, of Snitow, Kanfer, Holtzer & Millus, LLP, of Manhattan, represented the mother.

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.

Continue Reading Wife Wins Million-Dollar Lottery While Divorce Action Is Pending

In its February 20, 2013 decision in Cioffi-Petrakis v. Petrakis, the Second Department affirmed the decision of former Nassau County Supreme Court Justice Anthony J. Falanga which set aside the parties’ prenuptial agreement. Indeed, decisions over the past year indicate that there may be a pendulum swinging towards easing the burden on the party (generally, the wife) attacking such agreements.

For example, in its December 5, 2012 decision in Petracca v. Petracca, the Second Department affirmed the decision of Nassau County Supreme Court Justice Jeffrey S. Brown that set aside a postnuptial agreement due to the husband’s overreaching at the time of signing some 16 years earlier (see the blog post of December 10, 2012: “Postnuptial Agreement Vacated for Overreachong 16 Years After Entry).

In Cioffi-Petrakis, the wife contended that her husband had reneged on his oral promise to tear up their prenuptial agreement once she had children made shortly before the pre-nuptial agreements’s execution (the parties now have two sons and a daughter). That promise was not referenced in the parties’ written agreement entered just four days before the parties’ marriage. Moreover, the parties had disclaimed reliance upon oral statements by either party, a relatively standard provision in the agreement, itself. Nevertheless, the Second Department agreed with Justice Falanga that the evidence supported the wife’s claim that she had been fraudulently induced to accept the deal.

Ironically, three years earlier (72 A.D.3d 868, 898 N.Y.S.2d 861), the Second Department affirmed Justice Falanga’s prior order dismissing the wife’s causes of action which attacked the very same agreement on the grounds of unconscionability. There, the Second Department was satisfied with the record’s demonstration that the wife was represented by independent counsel during the prenuptial agreement negotiations (her counsel signed the agreement as a witness). Moreover, the agreement itself recited that the wife entered into it “freely, voluntarily and with full knowledge of all circumstances having a bearing on this agreement.” At that time, the Second Department opined that the wife was provided with meaningful bargained-for benefits, including a one-third interest in one of the defendant’s businesses. The wife had advanced nothing but conclusory and unsubstantiated assertions insufficient to defeat the husband’s motion for summary judgment dismissing the cause of action to set aside the parties’ prenuptial agreement on the ground of unconscionability.

Continue Reading Is it Open Season on Prenuptial Agreements?

In his February 26, 2013 decision in J.K.C. v T.W.C., Monroe County Supreme Court Justice Richard A. Dollinger held that an attorney could not have a charging lien under Section 475 of the Judiciary Law against the IRA received by his former client (the wife) as her marital share of the husband’s IRA. IRAs, generally, are exempt from creditor’s claims pursuant to CPLR §5205(c)(2).
The attorney had represented the wife in a divorce action. In the retainer agreement, the attorney noted that if fees were due and owing at the time of his discharge, the attorney had the right to seek a charging lien which the agreement described as “a lien upon the property that was awarded to you as a result of equitable distribution in the final order or judgment in the case.” The client also signed a “statement of client’s rights and responsibilities” which stated that a court could give the attorney a charging lien which “entitled your attorney to payment for services already rendered at the end of the case out of the proceeds of the final order or judgment.”

Justice Dollinger recognized several facts as pertinent to his analysis:

  • There was no evidence that the wife ever contested her attorney’s charges until after the judgment of divorce;
  • There was no allegation before the court that the wife ever agreed to pay the attorney’s fees specifically from the IRA account;
  • There was no evidence that the wife possesses any other assets, distributed under the divorce judgment, available to satisfy the charging lien; and
  • There was no allegation that the client, in the divorce judgment, engaged in any collusive or other improper behavior to thwart the attorney’s recovery of his fees.

Holding that a charging lien could not be asserted against an IRA, Justice Dolinger also considered:

  • The federal tax consequences on any withdrawal;
  • The penalty imposed when an unqualified withdrawals is made;
  • The actual ownership of the trust funds by the trustee;
  • The “anti-alienation” provisions of ERISA;
  • The wife’s never having “available cash proceeds” during the trustee-to-trustee transfer of the funds from the husband’s IRA to her own;
  • The broad language protecting IRA roll-overs from the reach of creditors in CPLR §5205;
  • The lack of express direction in Section 475 in the Judiciary Law to permit a charging lien against retirement funds; and
  • The lack of any provisions relating to a charging lien for attorneys fees under New York’s Domestic Relations Law.

Continue Reading Collecting Counsel Fees in Divorce Actions: Charging Lien Against IRA Denied

On the wife’s motion for temporary relief, Supreme Court, New York County Justice Deborah A. Kaplan in Lennox v. Weberman, awarded the wife tax-free maintenance of $38,000 per month, plus the wife’s unreimbursed medical expenses up to $2,000 per month, interim counsel fees of $50,000, and expert fees of $35,000.

By its February 26, 2013 decision, the First Department modified that order, on the facts, to provide that such pendente lite relief would be treated as an advance on the 50 percent of the parties’ joint funds to which the wife is entitled pursuant to the parties’ prenuptial agreement.

Notwithstanding that the wife had waived any claim to a final award of alimony or maintenance in the parties’ prenuptial agreement, Justice Kaplan was entitled, in her discretion, to award pendente lite relief in the absence of an express agreement to exclude an award of temporary maintenance.

As to the amount of the temporary maintenance award, the appellate court found that Justice Kaplan properly applied the new temporary maintenance formula set forth at Domestic Relations Law § 236(B)(5–a)(c)(2)(a). Specifically, Justice Kaplan had listed all 19 of the enumerated factors, explained how 7 of them supported an upward deviation to $38,000 per month from the $12,500 a month in guideline support, and found that $38,000 per month was not “unjust or inappropriate.”

Continue Reading Pendente Lite Award Prospectively Charged as an Advance Against Wife’s Share of Marital Property

The First Department, in its February 19, 2013 decision in David v. Cruz, threw out an entire settlement agreement because of its failure to include  language required by the Child Support Standards Act.

The C.S.S.A. sets out a presumptive formula for the calculation of a parent’s child support obligation.

Parents are free to agree to vary the formula and fix their own base periodic child support obligation. They may also fix the parents’ respective liabilities for addition health care, child care and add-on expenses, if not others. However if they so agree, the parents must recite in their agreement what would have been the results had the presumptive statutory formula been applied.

As noted by the First Department, an agreement purporting to opt out of the presumptive basic child support obligations set forth in the Child Support Standards Act must include a provision stating that the parties have been advised of the provisions of the C.S.S.A., must specify the amount that the basic child support obligation would have been, and must state the reason or reasons for the deviation (Family Court Act § 413 [1] [h]; Domestic Relations Law § 240[1–b][h]). That required recitation may not be waived by either party or by counsel.

Continue Reading Settlement Agreement’s Failure to Include C.S.S.A. Recitation Invalidates Entire Agreement

In a February 13, 2013 decision. the Second Department in Braun v. Abenanti directed a father to pay his child’s orthodontist directly and also directed that the mother’s petition for an upward modification of child support be granted.

Doing so, the Second Department reversed Family Court, Suffolk County Judge Richard Hoffmann, who in turn had denied the mother’s objections to an order of Support Magistrate Isabel Buse. The Magistrate’s order, after a hearing, granted the mother’s petition to enforce a 2001 support order only to the extent of directing the father to reimburse the mother the $20 she had paid to the orthodontist. Magistrate Buse also denied the mother’s petition for an upward modification of that decade-old support order.

As for the orthodontia, the 2001 order directed the father to pay 100% of “future reasonable health care expenses not covered by insurance.” The child had orthodontia expenses of $1,329 that were not covered by insurance, of which the mother could only afford to pay $20.

The Second Department acknowledged that as the mother demonstrated that she paid $20 of the child’s unreimbursed orthodontia expenses, the Family Court’s award of only $20 to the mother was properly limited to “those sums for which the mother submitted proof of actual payment to the third-party medical providers.”

Continue Reading Father Directed to Pay Orthodontist Directly; and Mother Entitled to Upward Modification

In its February 14, 2013 decision in Melody M. v Robert M., the Third Department affirmed an order of now-retired St. Lawrence County Family Court Judge Barbara R. Potter which modified a prior joint custody order to award the father sole custody of the parties’ three children (ages 8, 9 and 12). The Third Department also affirmed Judge Potter’s imposition of an order of protection against the mother that prohibited her from, among other things, posting any communications to or about the children on any social network site.

The parties had entered into a separation agreement in 2006 providing for joint custody of their children with alternating physical placement. In February 2009, they stipulated to continue joint custody, but with the father having primary physical custody. In July 2010, the mother commenced the first of the four proceedings determined by Judge Potter’s order, seeking to alter her parenting time so that she would have the two youngest children from Wednesday to Sunday of each week and the oldest child from Sunday to Tuesday of each week. The father opposed the proposed schedule change, filed violation petitions and filed a modification petition seeking, among other things, sole legal custody of the children.

After a hearing, Judge Potter found a change in circumstances sufficient to conclude that the joint custody arrangement was no longer viable and that an award of sole legal custody to the father would be in the best interests of the children.

Continue Reading Mom Ordered to Stop Posting about Her Children on Facebook