Two decisions this past month involved joint custody awards despite antagonism between the parents and contested custody proceedings.

In Prohaszka v. Prohaszka, Supreme Court Putnam County Justice Francis A. Nicolai had awarded the divorcing parties joint legal custody of the parties’ children, with the mother having primary physical custody and final decision-making authority. In its February 6, 2013 decision on appeal, the Second Department modified that order to add a provision directing the mother to consult with the father regarding any issues involving the children’s health, medical care, education, religion, and general welfare prior to exercising her final decision-making authority for the children, but otherwise affirmed Justice Nicolai’s order.

Although the antagonism between the parties was evident to the appellate court, it was also apparent that both parties generally behaved appropriately with their children, that they could make parenting decisions together, and that the children were attached to both parents. Under those circumstances, there was a sound and substantial basis in the record for Justice Nicolai to have found that the best interests of the children would be served by awarding the parties joint custody. Similarly, the trial record also supported the determination that primary physical custody should be with the mother and that she should have final decision-making authority.

The court, however, should have directed the plaintiff to consult with the defendant regarding any issues involving the children’s health, medical care, education, religion, and general welfare prior to exercising her final decision-making authority.

In his January 8, 2013 decision in Scott M. v. Ilona M., Kings County Supreme Court Justice Jeffrey S. Sunshine awarded the parties joint custody of their son; each parent having access alternating on a weekly basis.

Justice Sunshine did note that a significant factor in determining custody was whether the heated custody dispute, itself, indicated that an award of joint custody would be ineffective. Justice Sunshine cited to the Court of Appeals decision in Braiman v. Braiman, (44 N.Y.2d 584), which rejected joint or shared custody where the parties are in bitter conflict and do not agree to such an arrangement. That decision concluded:

Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. As a court ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos.

[Question: If the children live primarily with one parent and that parent has final decision-making authority, what does “joint custody” mean? Is it merely a psychological benefit for the parent and the child? Does it entitle the non-primary custodian to make decisions in emergency situations when the other parent is not available? Braiman, itself, noted that “joint”, or, as it is sometimes called “divided”, custody reposes in both parents a shared responsibility for and control of a child’s upbringing. In Bast v. Rossoff, 167 Misc.2d 749, 752 (Sup. Ct. 1995), affd, 239 A.D.2d 106 (1st Dept 1997), affd as mod and remanded, 91 N.Y.2d 723 (1998), it was stated “In New York the term ‘joint custody’ generally is used to refer only to joint legal custody, or joint decision making.”]

Continue Reading Ordering Joint Custody in Contested Divorce Custody Proceedings

Two decisions within the last 10 days confirm the need for agreements relating to support to be in (an acknowledged) writing, and then incorporated in a court order.

In one, the Second Department affirmed the award of maintenance arrears without a hearing despite the claimed reduction of maintenance under an oral modification of the parties’ separation agreement. In the second, Albany County Family Court Judge W. Dennis Duggan directed a father to pay 71% of his older son’s private middle school expense, despite the mother’s conceded agreement to pay the full tuition.

In its January 30, 2103 decision in Parker v. Navarra, the Second Department affirmed the award of maintenance arrears by Dutchess County Supreme Court Justice James V. Brands. The ex-husband alleged that he and his ex-wife had orally modified the maintenance provisions of their separation agreement and, alternatively, that the ex-wife should be equitably estopped from enforcing the maintenance provisions of the separation agreement. The ex-husband had requested an evidentiary hearing so that he could present the testimony of witnesses on those issues. Justice Brands denied the request for an evidentiary hearing, awarding arrears on the basis of the parties’ submissions.

The Second Department affirmed, noting that the ex-husband failed to make a showing sufficient to entitle him to a hearing on this issue:

Where, as here, the parties’ separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification. The defendant did not demonstrate that the plaintiff’s acceptance of reduced monthly maintenance payments was unequivocally referable to an alleged oral modification by, for example, demonstrating that consideration was given in exchange for the plaintiff’s alleged oral agreement to accept reduced maintenance payments.

Moreover, to establish a defense of equitable estoppel, the ex-husband was required to have shown that the ex-wife’s conduct induced his significant and substantial reliance upon an oral modification. Again, the ex-husband was required to have shown that the conduct relied upon to establish estoppel was not otherwise  compatible with the agreement as written.

Continue Reading Support Modification Agreements: Get’em in Writing; Get’em into Court (Part II)

In a January 15, 2013 decision in Alvarado v. Alvarado, Richmond County Supreme Court Justice Catherine M. DiDomenico, held that the husband’s veteran’s and Social Security disability benefits are separate property for purposes of equitable distribution. Moreover, the veteran’s disability benefits could not be considered on a maintenance award. The Social Security benefits could.

As discussed in the comment, below (far more detailed than may be appropriate for this blog), veteran’s disability payments should be able to be considered when making maintenance awards in divorce actions.

In Alvarado, as a result of his military service in the United States Marine Corps prior to the marriage, the husband was now receiving monthly veteran’s disability benefits. The husband successfully argued to Justice DiDomenico that the veteran’s benefits were not to be considered. The Uniformed Services Former Spouse’s Protection Act (USFSPA) declared them to be separate property. 10 U.S.C. § 1408. The Court rejected the wife’s argument that veteran’s disability payments should be considered for purposes of maintenance.

Congress enacted USFSPA in direct response to the 1981 U.S. Supreme Court decision in McCarty v. McCarty, 453 U.S. 210, which had held that federal law as it then existed completely pre-empted the application of state divorce property law to military retirement pay. USFSPA authorized state courts to treat disposable retired pay as marital property. However, Federal disability benefits remained excluded, and any military retirement pay waived in order for the retiree to receive veterans’ disability benefits also remained excluded. Mansell v. Mansell, 490 U.S. 581 (1989).

Justice DiDomenico noted that while the Second Department had yet to address the issue, the Third and Fourth Departments had held that state courts are prohibited from distributing veteran’s disability benefits in an action for divorce. The Court cited Hoskins v. Skojec, 265 AD2d 706 (3d Dept. 1999), leave to appeal denied,  94 NY2d 758 (2000), and Newman v. Newman, 248 AD2d 990 (4th Dept. 1998). Similarly, Justice DiDomenico ruled, Social Security Disability Benefits are separate property and are not subject to equitable distribution. DRL § 236 (B) (1) (d) (2); Miceli v. Miceli, 78 AD3d 1023 (2d Dept. 2010).

However, as Justice DiDomenico held, Social Security Disability Benefits are to be considered by the Court when determining a payor spouse’s ability to pay maintenance, citing Cerabona v. Cerabona, 302 AD2d 346 (2d Dept. 2003). and Carl v. Carl, 58 AD3d 1036 (3d Dept. 2009).  Justice DiDomenico also noted that in Carl, it was stated that while disability benefits obtained from other sources may be considered for purposes of maintenance, veteran’s disability payments are precluded from consideration.

Continue Reading Considering Veteran's and Social Security Disability Payments in Divorce

In order to prevent the foreclosure of the marital residence, a court in a divorce action, and prior to judgment, may order the spouses to cooperate with a refinance application. Moreover, if the property is not successfully refinanced, the court, before divorce judgment, may compel a spouse to satisfy (at least) one half of the current mortgage in default.

Such was the holding of the Appellate Division, First Department, in its January 3, 2013 decision in Nederlander v. Nederlander. That decision unanimously affirmed the Order of New York County Supreme Court Justice Deborah A. Kaplan.

In this case, the bank was planning to foreclose on the marital residence. Until the wife made her motion, below, the husband had failed to submit a requested application and financial information to the bank. This was months after such was requested by the bank, and months after the wife submitted her information and application to the bank. The appellate court would not speculate whether the husband’s actions, which in effect contributed to the foreclosure, were by design or neglect.

The First Department based the authority to grant the wife her requested relief on Domestic Relations Law §234. That section empowers the court to determine questions of title to property and to “make such direction, between the parties, concerning the possession of property, as in the court’s discretion justice requires having regard to the circumstances of the case and of the respective parties.”

Continue Reading Husband in Divorce Action Ordered to Refinance Home, or Pay Off Half of Mortgage Balance

In his January 7, 2013 decision in Gluck v. Gluck, Nassau County Supreme Court Justice Daniel R. Palmieri, determined that the wife pay 80% of the counsel fees incurred by the husband, as such reflected the wife’s pro rata share of the parties’ total income.

Following a 13-day trial, the parties agreed that the Court would consider the legal fee applications of  both parties on submitted papers. The defendant-husband (the less-monied spouse) sought $125,000.00 in counsel fees under Domestic Relations Law §237 for services rendered by the two law firms that had represented him consecutively in this action.

Justice Palmieri noted that earlier, and after the Court issued its Decision and Order on the issues of custody and parental access, the parties had entered into a stipulation regarding child support and certain holidays. Certain child care expenses were apportioned 80% to the wife and 20% to the husband. The Court adopted those proportions as appropriately based on the incomes of the parties (approximately $360,000.00 and $90,000.00, respectively).

In opposition to the husband’s application, the wife contended that the husband’s obstructionist tactics and unreasonable demands unnecessarily prolonged and delayed the action, going to trial and unreasonably refusing to settle. This, the wife claimed, unnecessarily added to her own counsel fees which were in excess of $200,000.00.

Neither party claimed that the bills of opposing counsel were excessive or not reflective of work performed.

Mary Ann Aiello, Esq., the husband’s latter attorney, conducted the trial and negotiated stipulations in March 2012 regarding the sale of the marital residence and in August 2012 on the issues of equitable distribution and maintenance. After the trial of the remaining issues, the parties settled the issue of child support and certain holiday visitation.

Continue Reading Divorce Counsel Fee Awards: Beware Formulaic Approaches

In an October, 2012 decision, Kings County Civil Court Judge Harriet Thompson, in Matter of Kobra (Hossain), denied on cultural grounds the applications of a mother, Tamannatul Kobra, to change the names of her children: four and nine-year-old females. The two petitions were supported by the consent the girls’ father, Mosharaf Hossain (Ms. Kobra’s husband).

The mother sought to remove the name “Hossain” (or Hossian) because because of its association with Muslims.

Ironically, in January, 2009, Kings County Civil Court Judge Dawn Jiminez-Salta had granted an application by Mr. Hossain, on consent of his wife, to add “Hossain” to the name of his older daughter (then six). Judge Jiminez was satisfied that the interest of the child was substantially promoted by the infant child assuming the surname of her biological father.

Here, the mother sought to again change her nine-year-old daughter’s name; this time to a completely different name: from Siratul Muntaha Hossain to Oporajita Neeladri. The child would not bear any surname that would identify her with either parent. The mother also sought to change the younger child’s name from Heemika Hossian to Himika Himadri. Under the parents’ plan, neither child would have any name that would identify her as a child of either parent-not the surname of either parent, nor any name that would identify them as relatives or even sisters for that matter.

The mother asserted that in Bangladesh and India, it is customary for everyone in “a typical household” to have completely different names. Nevertheless, Judge Thompson noted that both of these children were American-born citizens and have adapted, embraced and are a part of our American culture.

Applying the American cultural norm, Judge Thompson found that “sharing the surname by the child with the parent she or he lives with is a legitimate point of concern because it minimizes embarrassment, harassment and confusion in school and social contacts.”

This court will not deviate from that which is deeply rooted in the American Diaspora which definitively supports our social customs and long standing accepted practices in New York as well as many other states for family members to share in one of the custodian’s parents name.

This common practice is to alleviate confusion in the child’s day to day life and obviate the need to explain to school administrators and teachers, doctors, insurance companies and government agencies why the children have completely different names from their parents and from each other.

Continue Reading Parents Denied, on Cultural Grounds, Name Changes for 4- and 9-Year-Old Daughters

Update: May 23, 2013: Robert Sand pleaded guilty in U.S. District Court in Central Islip today to two counts of failing to pay child support. According to Assistant U.S. Attorney Alan Bode, Mr. Sand owes more than $1.2 million, including interest and penalties, to three children from two failed marriages. Sand faces up to four years in prison when he is sentenced in May. Mr. Sand was represented by Glenn Obedin. Click link for the the full New York Post article.

A message from the Deputy Inspector General for
Investigations, Gary Cantrell
 

Original publication date: December 24, 2012

Last week, Robert Sand was arrested at the Los Angeles Airport following his deportation by the Philippines. Sand, 50, was America’s “most wanted” deadbeat dad, topping the Child Support Enforcement list of the Office of the Inspector General of the U.S. Department of Health and Human Services.

Sand, from Nassau County, owes more than $1.2 million in support for three children of two marriages. First ordered in 1996, arrest warrants for his failure to obey support had been issued in 2000, 2002 and 2010. To evade his child support obligations, Sand fled from New York to Florida and then to Thailand where he was arrested on passport and breach of contract charges. A Federal indictment had been issued for Sand in 2009 on two charges of failure to pay child support.

Among the rulings involving Sand, a 2002 decision of the Appellate Division Second Department, in Sand v. Sand, 290 A.D.2d 451, 736 N.Y.S.2d 102, affirmed Nassau County Family Court Hearing Examiner Patricia Watson’s denial of an application by Sand for a downward modification of his support obligations. Instead Hearing Examiner (now Support Magistrate) Watson awarded Sand’s former wife a judgment for $151,381.98 in support arrears. Sand had testified that, although he failed to make his required payments of $1,000 per week, he had no assets or bank account, he owed large debts, and he was only earning $900 per week. However, after examining the lifestyle led by Sand with his new wife, his prior experience and earnings in cash businesses, and other evidence including unfiled tax return documents, Hearing Examiner Watson determined that the father’s testimony lacked credibility.

Although most child support cases fall under State jurisdiction, the Office of Inspector General (OIG) plays an important role in aggressively pursuing parents who fail to pay court-ordered child support.

 The OIG website reports that the agency may intervene in child support cases when:
  • the noncustodial parent willfully fails to pay child support for more than 1 year and the State where the child lives is different from the State where the noncustodial parent lives,
  • the amount the noncustodial parent owes is more than $5,000 and the State where the child lives is different from the State where the noncustodial parent lives, or
  • the noncustodial parent travels to another State or country to avoid paying child support.

Punishment for a first offense for failure to pay child support is a fine, up to 6 months in prison, or both. In the case of a second or subsequent offense or a case when the obligation has been unpaid for longer than 2 years or is more than $10,000, the punishment increases to a fine of up to $250,000, 2 years in prison, or both. Noncustodial parents convicted of these offenses must also pay restitution and/or settlements of the child support amount owed.

“Project Save Our Children” is a multiagency law enforcement initiative that investigates and prosecutes the most egregious child support cases. Its members include investigative analysts from the Administration for Children and Families (ACF), the Office of Child Support Enforcement (OCSE), OIG Special Agents, the U.S. Marshals Service, U.S. Attorneys’ offices, and the Department of Justice, along with child support agencies across the United States. These entities identify, investigate, and prosecute noncustodial parents who knowingly fail to pay support obligations and meet the criteria for Federal prosecution under the Deadbeat Parents Punishment Act.

Deadbeats can be reported using OIG’s “Report A Fugitive” form.

House divided.jpgIn its December 13, 2012 decision in Murrary v. Murray, the Appellate Division, Third Department, affirmed the determination to deny a husband an equitable distribution credit for the value of a home which he owned before the marriage and which, after the marriage, he deeded to himself and his wife jointly.

The parties were married in 1986 and have four children. 15 months before the marriage, the husband purchased a residence in Queens County. Tthe parties lived there together for several years after their marriage. In 1991, the husband conveyed the home to himself and his wife jointly. The parties thereafter refinanced the Queens County property and used the proceeds to purchase their ultimate marital residence in Sullivan County, keeping and renting out the Queens County property. In 2003 the parties separated. The husband commenced this divorce action in 2005.

In resolving equitable distrution issues, Sullivan County Supreme Court Justice Robert A. Sackett denied the husband a credit for the premarital value of the Queens County property. On appeal, the Third Department found that that determination was within Justice Sackett’s discretion.

The transfer of that property into joint ownership created a presumption that it was marital property, placing the burden upon the husband to rebut this presumption with clear and convincing proof that the transfer was solely a matter of convenience.

Here, the appellate court noted, the husband’s testimony regarding the Queens County property (characterized by Supreme Court as evasive and questionable) failed to rebut the presumption. The entire Queens County property was thus part of the parties’ marital property and subject to the court’s substantial discretion in fashioning an equitable distribution award.

While the appellate court noted that a credit is often given for the value of former separate property, such a credit is not strictly mandated. The property is no longer separate, but is part of the total marital property. Quoting the 2010 Court of Appeals decision in Fields v. Fields, 15 NY3d 158, it was stated:

There is no single template that directs how courts are to distribute a marital asset that was acquired, in part or in whole, with separate property funds.

Upon review of the record and the entirety of the equitable distribution award, the Third Department was unpersuaded that Justice Sackett abused his discretion.

Continue Reading Husband Gets No Separate Property Credit in Divorce for Pre-marital Home Deeded to Himself and His Wife Jointly

gavel 1 small.jpgIn a decision issued November 9, 2012 in Palermo v. Palermo, the Appellate Division, Fourth Department, affirmed the October 28, 2011 decision of Monroe County Supreme Court Justice Richard A. Dollinger for the reasons stated in Justice Dollinger’s opinion: a party’s sworn statement of irretrievable breakdown is incontestable. It is not subject to attack at trial.

For other decisions on this topic, see the blog published January 30, 2012.

Gavel main.jpgNot every representation of one spouse during a marriage will disqualify an attorney from representing the other spouse in the couple’s divorce. Such was the holding of the Second Department in its December 5, 2012 in Gabel v. Gabel. In doing so, the appellate court reversed Richmond County Supreme Court Justice Barbara Irolla Panepinto’s disqualification of the husband’s counsel in this divorce action. The wife had moved to disqualify her husband’s counsel based on counsel’s formation of the wife’s corporation.

A party seeking disqualification of the adversary’s lawyer must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse.

However, the Second Department noted the advice of the Court of Appeals against the “mechanical application of blanket rules,” in favor of the careful appraisal of the significant competing interests inherent in attorney disqualification cases. A party’s entitlement to be represented by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted.

Here, the wife failed to show that the prior representation was substantially related to the current representation. The wife did not argue that the prior representation concerned any confidential information regarding the value of the corporation. There were no facts in the record to support such a finding, nor was the attorney provided with any information that was not contained in the corporate filing itself. Further, the wife refused to provide the husband with discovery concerning the corporation, contending that the corporation was “closed” and that the wife never realized any profits from it.

Under the particular circumstances of this case, there was nothing to suggest an appearance of impropriety concerning the attorney’s representation of the plaintiff in the divorce action. The wife’s motion for disqualification should have been denied.

John Z. Marangos, Esq., of Staten Island, represented the husband.