Manhattan.jpgNew York County Supreme Court Justice Matthew F. Cooper reports in a May, 2012 decision that for 2010, 23% of New York State’s divorce action were commenced in Manhattan, although it is home to only 8% of the state’s population. For 2011, 49.6% of the New York City divorce actions were filed in Manhattan (New York County), although Manhattan, with some 19% of the city’s population, ranks a distant third in population to Kings and Queens Counties.

Justice Cooper in Castaneda v. Castaneda tried to explain why 75 to 80% of the New York County filings involve divorces where both spouses reside outside the county. He speculates that perhaps it is because New York has a reputation for processing divorce actions more expeditiously than elsewhere. Perhaps it is because it is more convenient for attorneys and divorce mills who have their offices in Manhattan. Perhaps it is because the chances of a party obtaining an uncontested divorce on default increase if the action is brought in a venue far removed from where the defendant actually lives. [Note: It also may because New York County may be thought to be more favorable for awarding interim or permanent awards of support or counsel fees.]

It has become the accepted practice for attorneys and non-attorney divorce processing services, the so-called divorce mills, to commence divorce proceedings in New York County despite the fact that neither spouse lives here.

Justice Cooper’s comments came as he granted a motion to change venue under C.P.L.R. 511. Despite the fact that not one aspect of the marriage or the parties’ lives was remotely connected to Manhattan, the plaintiff-husband nevertheless chose to file in New York County Supreme Court, seeking a divorce upon the grounds of living apart pursuant to a separation agreement. D.R.L. §170(6).

Continue Reading Judge Bemoans Manhattan as New York's Divorce Capital

Gavel main.jpgThe rule of law discussed by Monroe County Supreme Court Justice Richard A. Dollinger in Lomaglio v. Lomaglio is undoubtedly correct. An ex-husband may not be required to provide health insurance beyond the period he is required to pay his ex-wife maintenance. The question is was he allowed to correctly apply the law?

With allusions to Gilbert and Sullivan’s H.M.S. Pinafore, Justice Dollinger answered his own question:

When does a trial court judge get to review or opine, expand upon or possibly modify an appellate division ruling? Answer: “hardly ever.”

Domestic Relations Law §236B(8) is straightforward enough. A divorcing spouse may not be required to provide health insurance beyond the support period:

8. Special relief in matrimonial actions. a. In any matrimonial action the court may order a party to purchase, maintain or assign a policy of insurance providing benefits for health and hospital care and related services for either spouse or children of the marriage not to exceed such period of time as such party shall be obligated to provide maintenance, child support or make payments of a distributive award.

So why is Justice Dollinger’s just-published February, 2012 opinion implementing this provision front page news (New York Law Journal 5/21/2012)? It is because 12 years ago, the Appellate Division Fourth Department appears to have held that Mr. Lomaglio would be obligated to provide health insurance to his ex-wife, permanently, although the 18-month period for which he was obligated to provide maintenance to his ex-wife had expired.

Continue Reading Did Judge Overrule the Appellate Division to Hold Ex-Husband May Not Be Required to Provide Health Insurance Beyond Period He Is Required to Pay Support to Ex-Wife?

U-haul.jpgWhen a judge works this hard to provide a searching analysis of a difficult question, we should sit up and take notice.

Should an unemployed father be required to prove why he should not have to relocate to seek/obtain employment in his field as a condition to him receiving a downward modification of his child support obligations?

Presenting a scholarly review of decisions in New York and around the country, Monroe County Supreme Court Justice Richard A. Dollinger crafted a test to determine whether a parent with substantial child support obligations, and unique job skills, is required as a matter of law to geographically expand his search for employment.

The essential facts in Szalapski v. Schwartz are not unfamiliar. The former spouses have three children, ranging in ages from 10 to 15. When the parties were divorced in 2005, the father was earning $82,000 annually; the mother approximately $6,000. The father’s child support obligation was $1,826.49 monthly.

Mr. Szaplapski (the “father”) is a “multi-disciplinary physicist,” with a career in academia before serving as a staff engineer. He left academics in 2004, electing to stay in western New York to accommodate his family. He worked in software design for which he had only marginal qualifications. In July, 2010, the father was laid off. After his severance pay ended, he received unemployment insurance benefits of $405 per week.

In the application being decided by Justice Dollinger, the father, now remarried, sought to reduce his child support obligation. He alleged that he was unable to find comparable employment in the geographic area where his children live.  His ex-wife challenged the diligence of his job search, but also argued that because of the father’s unique talents, the court must require him to diligently search for employment in a broader geographic area. That the father failed to do.

Justice Dollinger began with a detailed legal and factual analysis of the father’s search for employment in the Rochester area where the parties lived. This exhaustive analysis, itself, presented a primer on the diligent efforts necessary to withstand a motion to dismiss an application for a downward modification of a child support obligation based upon the loss of employment. Based upon the evidence presented Justice Dollinger found that the father presented “a prima facie case for a hearing.”

Noting that a parent’s child support obligations are “paramount.” Justice Dollinger then turned “to the second question: is the applicant required to demonstrate a reasonable job search outside the local community and, if so, how far does his job search have to extend?”

Continue Reading Unemployed Father May Have To Relocate Rather Than Having His Child Support Obligation Reduced

Tear up contract.jpgThe parties’ 2008 Separation Agreement which resolved their divorce provided for joint legal custody of the parties’ two children, with their primary residence being with the mother. Nine months after the divorce, the mother remarried and moved to her new husband’s residence in Florida. The children remained in New York with their father.

The parties planned for a change in primary residence in their Separation Agreement. Specifically, if the children moved in with the father, the mother would not be obligated to pay periodic child support. (The father was paying $5,000 per month in child support while the children lived with the mother.) Moreover, the change in primary residence resulted in an “emancipation event” under the agreement, terminating the mother’s obligation to equally share certain expenses of the children including private school tuition, various unreimbursed medical costs, extracurricular activities, summer camp and college tuition.

This proceeding involved the father’s request for child support and for the mother to pay her pro rata share of expenses. The mother argued that as the agreement contemplated a change in primary residence from the mother to the father, there was no unanticipated change in circumstances sufficient to effect a modification of the parties’ Agreement. No periodic child support obligation should be imposed upon her. Moreover, the mother claimed to have paid some $300,000 towards the children’s expenses over the past three years.

In her March 28, 2012 decision in Rome v. Rome, New York County Supreme Court Justice Lori S. Sattler noted that “parents cannot contract away the duty of support.” Similarly, the Court has noted that a parent may not eliminate or diminish his or her duty to support by way of separation agreement. The parties’ agreement to waive support from each other “is not binding and against the public policy of providing for the support of children. The relevant inquiry is whether the children’s needs are being met as their needs will take precedence over the Agreement.”

While the Defendant asserts that the Plaintiff’s application must be denied since he has failed to demonstrate a substantial change of circumstances, the Court finds that the Plaintiff does not need to meet that burden for this application to go forward. Under the terms of the Agreement, the Defendant is required to pay nothing on behalf of the children and has been under no obligation since some time in 2008. Such provision is not binding and against the public policy of providing for the support of children. The relevant inquiry is whether the children’s needs are being met as their needs will take precedence over the Agreement.

Justice Sattler was unable to determine whether the needs of the children have been met since 2008 or are presently being met. Moreover, the mother had failed to submit the “requisite” Net Worth Statement, leaving the Court with no ability to determine what the mother’s basic child support obligation would be on an ongoing basis. Accordingly, Justice Sattler set the matter down for a hearing. The mother was directed to submit a Net Worth Statement to the Court within ten days of the decision.

Comment:The agreement which resolves a divorce often reflects a delicate balance among issues of spousal and child support and asset and liability division. Years after the execution, a court should be extremely hesitant to alter one of those balanced issues. The court should not ignore that various trades may may have been made to arrive at the overall agreement. Focusing on only one aspect of the agreement, even a waiver of child support, does the entire agreement a disservice.

Certainly, Justice Sattler properly decided to look at whether the needs of the children are being met. However, if the father is able, alone, to meet the reasonable needs of the children, consistent with the children’s lifestyle, then the parties’ agreement should be honored. Where the agreement merely allocates responsibilities between the parties, and does not prejudice the children, the parties’ agreement should be upheld.

As the Court of Appeals has noted, there is a difference between an agreement that is directed solely to readjusting the respective obligations of the parents to support their child (Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701 [1977]) and a court’s power to order support where a child’s right to receive adequate support is in issue (Brescia v Fitts, 56 NY2d 132, 138, 451 NYS2d 68 [1982]).

Not every waiver of child support, particularly one within the context of an overall divorce settlement between apparently wealthy spouses, should be void as against public policy. A separation agreement should be validated, unless it must yield to the welfare of the children.

Moreover, unless and until it is found that the needs of the children cannot be met if the waiver of support is honored, financial disclosure from the parent now not obligated by the agreement to pay support should be limited.

College Fund 3.jpgIn my December 12, 2011 blog, I discussed the October 14, 2011 decision of New York County Supreme Court Justice Matthew F. Cooper, directing a father to pay 40% of his child’s private college expenses. In its April 24, 2012 decision in Tishman v. Bogatin, the First Department affirmed. A parent’s contribution to a child’s college education would not necessarily be limited to a portion of the expense to attend a campus within the State University of New York system: the “SUNY cap.”

The First Department held that Justice Cooper properly rejected the father’s contention that a so-called SUNY cap should be imposed on his obligation to contribute to the costs of the child’s college education. There was no burden placed on the mother to show that the child’s needs cannot be met adequately at a SUNY college.

Whether to impose a SUNY cap is to be determined on a case-by-case basis, considering the parties’ means and the child’s educational needs. A rule that, absent unusual circumstances, a parent’s obligation is limited to the maximum SUNY tuition would be inconsistent with Domestic Relations Law § 240(1-b)(c)(7). Under that provision, a court may award educational expenses where it determines, “having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires,” that the education sought to be paid for is appropriate.

Here, the appellate court noted, he child attended an elite public high school, his reasons for preferring the private college over SUNY schools were sound, both parties attended private college and private law school (neither party was represented by counsel), and both parties have the resources to pay the tuition at the private college where the child is enrolled.

Lawyer male Judge male.jpgIf the parents reach an agreement resolving custody litigation, may the court approve and order the settlement over the objection of the attorney for the children. Yes, as long as the attorney for the children is given the right to be heard by the court and the court determines that the settlement is in the best interests of the children.
In Matter of McDermott v. Bale, the Appellate Division, Fourth Department, in its April 27, 2012 decision, affirmed the order of Orleans County Family Court Judge James P. Punch which had approved the parents’ settlement. Under their stipulation, the parents are to share joint custody of their two children, with primary physical residence to the mother. The attorney for the children (AFC) had disagreed with the eve-of-trial stipulation of the parents. However, Judge Punch approved the stipulation over the AFC’s objection.
The appellate court acknowledged that the AFC must be afforded the same opportunity as any other party to fully participate in the proceeding. A court may not relegate the AFC to a meaningless role. However:

the children represented by the AFC are not permitted to “veto” a proposed settlement reached by their parents and thereby force a trial.

Here, the AFC had stated in detail all of the reasons that he opposed the stipulation. Indeed, the court gave credence to many of the comments made by the AFC, as did the attorneys for the parents, both of whom agreed to modify the stipulation to address several of the AFC’s concerns.
Nonetheless, the court ruled:

We cannot agree with the AFC that children in custody cases should be given full-party status such that their consent is necessary to effectuate a settlement. The purpose of an attorney for the children is “to help protect their interests and to help them express their wishes to the court” (Family Ct Act § 241). There is a significant difference between allowing children to express their wishes to the court and allowing their wishes to scuttle a proposed settlement.

In a custody case, if the court appoints an attorney for the children (and the court is not required to do so), the AFC has the right to be heard with respect to a proposed settlement and to object to the settlement. The AFC does not have the right to preclude the court from approving the settlement in the event that the court determines that the terms of the settlement are in the children’s best interests.

Parents who wish to settle their disputes should not be required to engage in costly and often times embittered litigation merely because their children or the attorney for the children would prefer a different custodial arrangement.

Sanford A. Church, of Albion, was the Attorney for the Children. P. Andrew Vona, of Muscato, Dimillo & Vona, L.L.P., of Lockport represented the mother, James D. Bell, of Brockport, represented the father.

Angry Mom and Teen Son.jpgIf a judge, and particularly one held in as high regard as former New York County Supreme Court Justice Jacqueline W. Silberman, tells you that you have contributed to your “fractured relationship” with your child and recommends counseling/therapy, you should probably follow the advice.

The parents of a now-19 year old son have been engaged in decade of contested litigation. They were divorced in 2004. Joint legal custody and shared parenting time was replaced by 2006 by an award of sole custody to the father when the mother’s post-divorce relationship with her boyfriend caused the child severe emotional distress. Twice, the court recommended counseling. The parties’ son, now in college, has refused contact with his mother.

The current proceeding involved the father’s 2009 application for an order of support and contribution towards the child’s therapy costs. The mother raised as a defense a contention that the child had been alienated from her by the father and that the child had constructively emancipated himself from the mother.

After a hearing, Ulster County Family Court Judge Marianne O. Mizel found in October 2010 that the mother’s affirmative defenses lacked merit, and granted the father’s motion to dismiss her defenses. In its May 3, 2010 decision in Dempsey v. Arreglado, the Third Department affirmed, upholding Judge Mizel’s finding that although he may bot be a model cooperative parent, the father did not unjustifiably interfere with the mother’s rights regarding the child, nor was he the cause of the fractured relationship.

Child support payments may be suspended where the custodial parent unjustifiably frustrates the noncustodial parent’s right of reasonable access . . . . Further, a child’s right to support may be forfeited if the child is of employable age and the child actively abandons the noncustodial parent by, without cause, refusing contact . . . . To prevail on the issue of abandonment, a parent must show that the child’s refusal of contact “is totally unjustified.”

Here, the appellate court noted that there was ample evidence that the mother’s own conduct was the cause of the broken relationship with her son. She was informed shortly after the change in custody to the father that her actions were severely traumatizing the child and that proper counseling would be important to resuming visitation. Nevertheless, she did not follow through with such counseling. Instead, she continued to blame others and failed to appreciate her own role in alienating her child.

As a result, the mother failed to sustain her burden of showing a lack of justification for the child’s refusal to maintain contact with her.

Brett H. Kimmel, of New York City, represented the father. Thomas Hoffman, of New York City, represented the mother. Ted J. Stein, of Woodstock, served as attorney for the child.

Boy with 20s.jpgAllowing a state of facts to exist for a period of time without objection will often lead a court to continue those facts. Here, the court required a father to contribute to the cost of his son’s private school education, where the child had been attending the school for some 10 years, even though a scholarship had been awarded in prior years.

In an April 24, 2012 decision, the Second Department reversed so much of the order of Westchester County Family Court Judge David Klein which denied a mother’s objections to the order of Support Magistrate Esther R. Furman. That order failed to direct the father to pay his pro rata share of the private school expenses of the parties’ child. The Second Department also reversed the sua sponte termination of the father’s obligation to contribute to trial care expenses.

In Amos-Richburg v. Richburg, the parties, divorced since 2003, are the parents of one child born in or about 1995. When the child was three years old, the parties had jointly enrolled him in a private pre-kindergarten, where he received a full scholarship. The divorce judgment incorporated and continued the terms of a Family Court order of support, entered December 8, 1999, which, in part, obligated the father to pay the mother $102 biweekly for child care. The judgment of divorce and the prior order of support were silent as to the parties’ respective responsibilities for the child’s private school expenses in the event that he ceased to receive a full scholarship.

In June, 2008, the mother filed a petition seeking an upward modification of the father’s child support obligations. She requested that the father be directed to pay his pro rata share of the child’s private school expenses. The child, then 13, was enrolled in the same school since pre-kindergarten. However, the child no longer received a full scholarship, and the mother alone had been paying his expenses. After a hearing, the Support Magistrate, among other things, denied the mother’s request to direct that the father pay his pro rata share of the child’s private school expenses. The Magistrate, on her own motion, terminated the father’s obligation to contribute to child care expenses. The mother’s objections to these rulings were ultimately denied by the assigned Family Court Judge.

The Second Department reversed, holding that the the Support Magistrate improvidently exercised her discretion in denying the mother’s request to direct the father to pay his pro rata share of the child’s private school expenses. Pursuant to Domestic Relations Law § 240(1-b)(c)(7), the court may direct a parent to contribute to a child’s education, even in the absence of special circumstances or a voluntary agreement of the parties, as long as the court’s discretion is not improvidently exercised in that regard.

Here, the child had been enrolled in the private school with the father’s approval, and performed well in that school. Thus, the appellate court ruled:

It was in the child’s best interest to remain at that school, rather than having his academic and social life disrupted by a transfer to a different school.

Additionally, there was no evidence that the father’s ability to support himself and maintain his own household would be impaired if he were directed to pay his pro rata share of the child’s private school expenses.

Additionally, the Support Magistrate erroneously terminated the father’s obligation to contribute to child care. Where the custodial parent incurs child care expenses as a result of employment, the noncustodial parent may be required to pay his or her proportionate share of such expenses as a supplement to the basic support obligation> Such child care expenses shall be prorated in the same proportion as each parent’s income is to the combined parental income.

Here, the mother worked as a private banker, which often requires her to work until 11:00 P.M. or midnight during the week. She did not believe that the parties’ 13-year old son was old enough to be alone for such long periods of time after school. Indeed, she was paying a babysitter to watch him three or four times a week. Under these circumstances, it was error for the Support Magistrate to, sua sponte, terminate the father’s obligation to contribute to child care expenses. Accordingly, the father’s obligation to contribute to child care expenses must be reinstated.

The parties should have addressed that what-ifs either in their 1999 Family Court or 2003 divorce court proceedings. If the father was unwilling to pay if the child’s scholarship was terminated, at least that fact could have been memorialized. hindsight is easy.

Absent good cause, it is common for courts to act to minimize the disruption to the children of divorce. That may mean allowing the children to remain in the marital residence until graduation, or to remain in the same school, with the same friends. Here, the father provided no such good cause.

The mother was represented by Brett Kimmel of New York City.

Gavel main.jpg

As has been the trend, a court has held that despite what may be the superior parenting skills of one parent, that parent may be denied custody if that parent does not promote the relationship of the children with the other parent.

In an April 26, 2012 decision, the Third Department in Jeannemarie O. v. Richard P. affirmed the order of Ulster County Supreme Court Justice Henry Zwack which, after a hearing in a divorce action, awarded the father temporary custody of the children.

When the parties were together, the mother had taken the more proactive role in raising the children. She had been the primary caretaker before the parties’ separation. The mother was more aware of the children’s needs. Contrasting, the father had exhibited occasional poor judgment in such serious matters as maintaining unsecured guns in the home.

Nevertheless, the mother’s positive attributes were outweighed by her cumulative efforts to interfere with the father’s relationship with the children. The mother had acted to prevent the father from having a meaningful role in the children’s lives and demonstrated a willingness to deceive in order to achieve her goal of parenting without the father’s involvement. The court noted:

Evidence that the custodial parent intentionally interfered with the noncustodial parent’s relationship with the child is so inconsistent with the best interests of the child as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent.

The mother had placed her own self-interest ahead of that of the children. She lacked insight into the importance of the children’s relationship with father. Among other things:

  • the mother unilaterally moved the children several hours away from the father;
  • sought multiple orders of protection against the father—all of which were ultimately dismissed;
  • canceled agreed-upon visitation arrangements; and
  • made unsubstantiated allegations against the father as to, among other things, substance abuse and violence.

With regard to the mother’s most serious claim against the father — that he sexually abused one of the children — the lower court had that the child’s statements had likely resulted from the methods the child’s counselor used to elicit them or from manipulation by the mother. The mother had engaged in “inappropriate coaching of the children” to support her goal of alienating them from the father.

The mother placed her own self-interest ahead of that of the children. She lacked insight into the importance of the children’s relationship with the father and the detrimental impact of her actions upon them. On the other hand, the father showed greater willingness to foster a relationship between the children and the mother and to improve his own parenting skills.

The father was reprsented by Kyle W. Barnett of Van DeWater & Van DeWater of Poughkeepsie. The mother was reprsented by Stanley Alter of Alter & Alter, L.L.P., of New York City. The children were reprsented by Reka Nori of Kingston.

Gavel main.jpgIn an April 26, 2012 decision, the Third Department affirmed the order of Delaware County Family Court Judge Carl F. Becker which failed to vacate or modify a prior order granting the mother custody of these unmarried parents’ two children. The order also had refused to provide the father with visitation rights.

In Ildefonso v. Booker, the appellate court noted that the father’s petition requested custody: “I want to see and be with my FAMILY & KIDS OR NOTHING. ALL TOGETHER.”

The courts noted the father’s anger and other mental heath issues and the history of domestic violence:

[T]he father ‘has serious mental health issues, that he is in serious need of anger management, among other things, and that until he recognizes those needs and obtains that treatment it is not in these children’s best interest[s] to have any contact with him whatsoever.’ For example, there was testimony regarding, among other things, the father’s animosity toward the mother, domestic violence incidents during which the children were present-some of which led to the father’s conviction of various crimes and his incarceration-the father’s lack of respect for court orders and his lack of insight into his conduct and emotional issues and their effect on the children. In our view, the evidence was sufficient to establish exceptional circumstances, and we discern no abuse of Family Court’s discretion in determining that visitation with the father would be inimical to the children’s well-being.

The mother was represented by Thomas F. Garner of Middleburgh. The father was represented by Teresa C. Mulliken of Harpersfield.