Calulator on 100s 6 red.jpgIn the first appellate decision to apply the October 12, 2010 temporary maintenance amendment to the Domestic Relations Law, it was held that the recipient’s share of marital residence carrying charges is within the temporary maintenance award, itself. It was improper to have the payor spouse pay carrying costs directly in exhange for a credit against income before calculating maintenance.

In the February 7, 2012 decision in Khaira v. Khaira, the Appellate Division, First Department, considered the breadth of D.R.L. §236B(5-a). No longer was the temporary (pendente lite) maintenance award used simply to “tide over the more needy party,” but rather to provide “consistency and predictability in calculating temporary spousal maintenance awards.” The amendment “creates a substantial presumptive entitlement.”

The First Department modified the April 1, 2011 order of New York County Supreme Court Justice Deborah A. Kaplan.  In the case before it, Justice Kaplan had “properly followed the initial procedures” to determine that the presumptive temporary maintenance award would be $138,000.00 per year ($11,500.00 per month), at least based on the husband’s first $500,000.00 of income. Justice Kaplan, then, analyzed the reasonable needs of the wife and children after taking into account husband’s payment of the mortgage and health insurance and expenses. Justice Kaplan, then, awarded the wife $13,870.00 in monthly unallocated spousal and child support payments, in addition to requiring the husband to pay the $5,317.00 monthly mortgage payments and the family’s $855.00 monthly health care premiums and medical expenses. The award and expenses totaled $20,041.00 per month. Justice Kaplan, however, did not discuss the factors required by the amendment to be considered when making an award in excess of the formula applied to the first $500,000.00 of a spouse’s income.

Before remanding the issue to Justice Kaplan for redetermination, the First Department focused on the “suggestion” inherent in her decision “that the formula was intended to cover the support needs of the non-monied spouse, such as food and clothing, but not the cost of the mortgage payments for her residence.” However, because any specific reference to the carrying charges for the marital residence was absent from the temporary maintenance formula amendment, the First Department considered:

[It was] reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse’s basic living expenses, including housing costs as well as the cost of food and clothing and other usual expenses.

The First Department noted that prior to the amendment, it was common to award support both in cash payments to the spouse as well as to third-parties. That practice was “not only eminently reasonable, but also the most expedient way of covering payment of the necessities, and protecting the home as a marital asset.” The “new approach” changes that, instead awarding “the amount that will cover all the payee’s presumptive reasonable expenses.”

The First Department did not rule out the possibility of a direct mortgage payment, but, as required by the statute, only after the analysis of income in excess of the $500,000.00 cap was made.

The impact of this decision is clear.  However, it also reveals the lack of logic in the remaining support calculations required by the various support provisions.

Continue Reading Appellate Decision Clarifies Temporary Maintenance Calculations; Temporary Child Support Awards Must Be Next

we are moving with question mark flipped.jpgAs noted in the February 8, 2010 post, seven very recent decisions reveal just how present are applications by separated parents to relocate with children. These decisions demonstrate that relocation applications will be decided very much on a case-by-case basis. However, common inquiries are evident:

  • To what extent is the relocation a necessity?
  • To what extent has the relocating parent fostered the relationship between the child and the parent left behind?
  • To what extent has the parent left behind exercised rights of visitation and sacrificed to be involved in the life of the child?
  • To what extent will educational and other opportunities for the child be enhanced by the relocation?

The prior blog post reported on four decisions of the Appellate Division, Third Department. This post discusses the remaining three.

In its January 31, 2012 decision in Ramirez v. Velazquez, the Fourth Department affirmed the order of Oneida County Family Court Judicial Hearing Officer John E. Flemma that denied permission to a 20-year-old mother to relocate with the parties’ three children from Utica to New York City.

Continue Reading Relocation of the Single Parent and Child: Recent Decisions (Part II)

we are moving with question mark.jpgSeven decisions published in the last few months reveal just how significant an issue parent relocation remains. Perhaps it results from a difficult economy; perhaps a simple reflection of our mobile society.

Whatever the cause, these decisions reveal the judicial system’s agony when trying to predict the “best interest of a child.”

Four of these decisions come out of upstate’s Appellate Division, Third Department. To begin, in its December 8, 2011 decision in Kirshy-Stallworth v. Chapman, the appellate court affirmed the order of Ulster County Family Court Judge Anthony McGinty which dismissed a mother’s petition to relocate with her eight-year-old daughter and current husband to Western Pennsylvania.  The Third Department noted that:

a lower-court decision “will not be disturbed if supported by a sound and substantial basis in the record.”

The court recognized that, admittedly, there were benefits to the mother which might support a decision to allow the relocation. She was disabled and receiving Social Security disability benefits while her husband had suffered a work-related injury and had difficulty finding suitable employment. He was offered a job in a car dealership by the mother’s uncle. There was lower-court testimony of the mother’s excellent parenting, the father’s failure to fully avail himself of visitation rights, and the mother’s promise to facilitate visits with the father after her move.

However, there was a lack of evidence that the mother’s current community was unsatisfactory, or that the child’s current school was not meeting her needs. There was insufficient evidence that the educational opportunities for the child were any better in Pennsylvania. The plans for the mother’s housing and her husband’s employment were not certain. With such a record, the appellate court could not conclude that Judge McGinty’s determination, that the mother had failed to demonstrate that relocation would be in the child’s best interest, lacked a sound in substantial basis. Accordingly, the dismissal of the mother’s petition was affirmed.

Continue Reading Relocation of the Single Parent and Child: Recent Decisions (Part I)

Update: In a decision issued November 9, 2012, 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.

 

Original January 30, 2012 entry:

gavel 1 small.jpgGloria Sorrentino, 79 years old, was compelled to endure a three-day trial to obtain her “no-fault divorce”;  and that trial was only conducted after Mrs. Sorrentino had been subjected to an inquiry as to her competency and her freedom from duress from two of her children. Acting Suffolk Supreme Court Justice James F. Quinn, in his January 12, 2012 decision in Sorrentino v. Sorrentino, declared the continuing need of a family to go through the tragedy of a divorce grounds trial despite the October, 2010 adoption of New York’s no-fault statute.

To establish her irretrievable breakdown grounds, Mrs. Sorrentino testified to the years of the lack of a relationship with her husband of 56 years. That testimony was corroborated by the detailed testimony of two of the parties’ children.

Justice Quinn ruled that this detailed and corroborated testimony, alone, was not a sufficient basis upon which a court could grant a divorce on the grounds of irretrievable breakdown. Mr. Sorrentino was entitled to challenge his wife’s case and provide his defense.

Justice Quinn held that not only was Mrs. Sorrentino required to demonstrate why she believed her marriage had broken down irretrievably, but also that the court was entitled, or rather required to reach the same conclusion objectively on the basis of all of the evidence presented. Only the court and not the parties, no less only one of the parties, was entitled to decide when a marriage had irretrievably broken down.

Continue Reading No-fault Divorce Is Not Here, Yet: One Court Decides that Whether a Marriage Has Broken Down Irretrievably is an Objective Issue of Fact

Green Card.jpgQueen County Supreme Court Justice Pam Jackman-Brown did not say that Claudette Medley’s marriage to Maurice Medley was a fraudulent attempt to take advantage of immigration rules. However, in her November, 2011 decision in Medley v. Medley, Justice Jackman-Brown made it clear that this was not a marriage made in heaven.

Ms. Medley migrated to the United States in 1988 under a temporary Visa with a work permit. In 1995, Claudette met her future husband. They began dating after a second meeting a year later. After three months of dating, in early 1997, Claudette showed Maurice a letter from the Immigration and Naturalization Service informing Claudette that her Visa status had expired. Claudette and Maurice discussed how to change Claudette’s status, after which the parties immediately planned their wedding. The day before the marriage, the couple discussed a pre-nuptial agreement. Claudette hand-wrote the agreement under which “neither party would take any legal action to seek the other’s assets.” The agreement, though not notarized (a requirement for it to be an enforceable prenuptial agreement under New York’s Domestic Relations Law §236B(3), was signed by both parties. One day later, the parties were married.

Ten years later, Claudette started her action for divorce. Justice Jackman-Brown found that the parties had indeed lived their lives in a manner consistent with their written agreement. Each engaged in separate investment ventures, buying and selling investment properties. The couple kept all their incomes separate from each other.  There was “no credible evidence that the parties spent any significant time together but rather maintained a separate business lifestyle. At most the parties had a sparse emotional life but it was impacted by a clear separate financial life.” The parties lived together only for the 28 months prior to the divorce filing.

Tax records were filed improperly. Claudette misrepresented her status to enable her son, not of the marriage, to get a scholarship to attend private school.

Although this Court will not define or marshal what is a “married life,” the cliché “you know it when you see it” can be inferred in this case. These parties engaged in a pattern of behavior that was inconsistent of any semblance of a marriage life in its ordinary and reasonable meaning.

Maurice was willing to abide by the agreement, although not technically enforceable. He did not claim to be entitled to any of Claudette’s income, investment, enhanced earnings, or real estate license (during the marriage, Claudette had obtained a college degree). On the other hand, Claudette wanted more. She did not get it.

The Court recognized that the assets acquired during the marriage, including retirement benefits, were “marital property” under New York law (D.R.L. §236B[1][c]).  However, after considering statutory factors, Justice Jackman-Brown denied equitable distribution of the assets. The overwhelming factor was that parties conducted themselves in a manner inconsistent with an “economic partnership.” Throughout their marriage, these parties lived consistently with that handwritten agreement signed the day before their marriage: neither party would claim the other’s assets. The Court ruled that each party would keep his or her own property.

Justice Jackman-Brown’s restraint was remarkable; true judicial temperament. My decision probably would have read, simply, “Are you kidding me?” and that’s only if I were able to show some restraint.

Green-card marriage fraud is a serious problem. Marriage to a U.S. citizen entitles one to apply immediately for Permanent Residency (USCIS). A 2006 USA Today editorial commented that marriage-based immigration fraud has largely gone unnoticed, despite the fact that marriage-based immigration accounted for more than a third of all legal immigration. In 2004, for example, Homeland Security reported that it completed investigations of only 1% of marriage-based green cards.

Nevertheless. marriage fraud is being prosecuted. For example, last Wednesday, a Connecticut resident from Morocco was sentenced to three months in federal prison and will be deported for his role in a marriage fraud scheme. A group of Alabama convictions were also recently reported.

Justice Jackman-Brown showed us that it is not beyond the power and discretion of New York courts to equitably dissolve marriages of opportunity or convenience. Perhaps it was also appropriate for the Court to forward its decision to the office of United States Citizenship and Immigration Services (USCIS), Homeland Security, the IRS, etc.

Changes Coming.jpgYou’ve worked out your divorce settlement, executed your agreement, and had that agreement incorporated in your Judgment of Divorce. Then, the law changes. What impact does that have on your settlement? As a practical matter, none!

Most often, a change in divorce law can be the result of a judicial decision, but it can also be a result of an act of the Legislature.

A post-agreement change in law was the issue facing Kings County Supreme Court Justice Jeffrey S. Sunshine when reaching his December, 2011 decision in Russo v. Russo Willoughby. Justice Sunshine held that a decision by New York’s highest Court, the Court of Appeals, which changed controlling Appellate Division case law existing at the time the parties entered their divorce settlement agreement, did not provide the basis for an attack on that agreement.

In Russo, the parties had entered an agreement which had made no provision for the wife to share in the Variable Supplement Fund (“VSF”), a benefit the husband accrued working as a police officer. The rule of law when the parties entered into their stipulation was that the VSF was not a part of the New York Police Department pension benefit, and not a marital asset to be equitable distributed. The parties’ stipulation did provide for a division of the NYPD pension.

After signing the agreement, the Court of Appeals ruled for the first time ruled on the VSF issue, finding that a spouse’s interest in the NYPD VSF is a marital asset to be equitably divided and distributed.

Justice Sunshine ruled that that post-agreement Court of Appeals decision did not provide a basis to add a new term to the parties’ agreement or otherwise provide a basis for relief to the wife.

As was noted in Cutler v Travelers Ins. Co., 159 AD2d 1014, 552 NYS2d 998 (4th Dept. 1990):

It is well established that a party may not reopen a voluntary settlement agreement to take advantage of a subsequent change in the law.

Thus, for example, it has been held that a change in the case law governing the application of the Child Support Standards Act was not a change of circumstances warranting the modification of the parties’ child support agreement. Kneut v Kneut, 172 Misc 2d 647, 658 NYS2d 832 (Monroe Co. Fam. Ct. 1997).

The last few years have seen many changes in New York’s divorce law. No-fault divorce is here. There is a new statute concerning the award of spousal support while a divorce action is pending. Changes to post-divorce maintenance awards are expected. Rules on the appreciation in value of one spouse’s separate property are confusing and in flux. The list goes on.

New York’s public policy supports the finality of settlement agreements. While parties may want to anticipate changes in the law, at the end of the day, cases need to be resolved. Parties must be prepared to make the most prudent deal they can, now, and be grateful for being able to move on. Years, or even days in the future, parties should not look back and think, “Had I only waited . . . “

Passport Boy.jpgCourts have recognized that it is in the best interests of a child to travel with a parent.  A court may provide relief when one parent unreasonably withholds consent from the other parent to travel with a child and compel a divorced parent to cooperate with the other parent to secure a passport for a child (Arroyo v. Agosta [2nd Dept. 2010]).

Thus, in Anthony McK. v. Dawn M., 2009 WL 8527772, Kings County Family Court Judge Paula J. Hepner, authorized a mother to obtain a passport to obtain a passport for the parties’ 11-year old daughter, over the objection of the father (indeed, the father had entered his daughter into the State Department’s Children’s Passport Issuance Alert Program). Moreover,the child was specifically authorized to travel with the mother.

Judge Hepner also noted the Federal provisions relating to the issuance of a passport to a minor:

[M]inors under the age of sixteen are required to appear in person when applying for a passport [22 CFR 51.28(a)(1)pdf]. Both parents are required to execute the application on behalf of a minor under the age of sixteen when applying for a passport for the first time and provide documentary proof of parentage [22 CFR 51.28(a)(2)]. One parent may execute a passport application for a child if s/he provides “documentary evidence that such person … has sole custody of the minor” in the form of “an order of a court of competent jurisdiction granting sole legal custody to the applying parent containing no travel restrictions inconsistent with the issuance of the passport, or specifically authorizing the applying parent to obtain a passport for the minor, regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parent or legal guardian” [22 CFR § 51.28(a)(3)(ii)(E)]. Before a passport is issued, the parent of a minor may file objections “so long as the objecting party provides sufficient documentation of his or her custodial rights or mother authority to object” [22 CFR § 51.28(c)(1)].

Generally, passport regulations and forms may be found online. For minors under 16, go here. For 16- and 17-year olds, go here.

Forms are also available online. Under ordinary circumstances, it is necessary for a passport application (Form DS-11) to be executed and presented, in person, by the minor and both parents at a passport acceptance facility (usually a post office). However, if both parents are not to be in attendance, then it is necessary for the non-appearing parent to execute a Statement of Consent (Form DS-3053), unless a court order provides otherwise.

It is always advisable for a parent to travel with a consent from (Travel Consent form.pdf), signed by the other parent and notarized, authorizing the parent to travel with, make arrangements for, and make health care decisions concerning the child.

women fighting over man.jpgThe First Wives Club appears to be alive and well in New York.

Brooklyn Supreme Court Justice Jeffrey S. Sunshine‘s December 19, 2011 decision in Tawil v. Tawil resolved the application of a second wife (now involved in her own New York County divorce action) to join in the post-divorce judgment proceedings between her husband and his first wife.

Justice Sunshine gave away the ending as he detailed the parties’ background.

Mary Tawil (W#1) and her ex-husband, Evan Tawil were divorced on October 24, 2001. Justice Sunshine pointed out that just four days later, Mr. Tawil married his second wife (W#2). Justice Sunshine also noted that W#2  was the daughter of an attorney who had represented Mr. Tawil on a prior post-judgment contempt enforcement application brought by W#1.

Mr. Tawil and W#1 have two unemancipated children.  Mr. Tawil and W#2 also have two unemancipated children.

On October 15, 2010, three days after New York’s no-fault divorce law went into effect, Mr. Tawil commenced a New York County action for divorce against W#2. In that action, Justice Ellen Gesmer granted W#2 pendente lite relief. By July, 2011, W#2 was seeking a money judgment for $186,000 in support arrears.

Mary Tawil’s (W#1) current application was to hold Mr. Tawil in contempt for the alleged failure to pay some $57,000 in tuition for his children with W#1. W#1 also sought to restrain her former husband from disposing or encumbering the apartment in which W#2 and her children were living, the jewelry Mr. Tawil gave W#2, certain artwork, and to restrain Mr. Tawil from making certain payments towards mortgages and leases.

It was into that proceeding that W#2 wanted to intervene. She claimed that if Justice Sunshine was going make rulings that were going to have effects on her apartment, jewelry, artwork, and other property, she wanted to be heard.

Justice Sunshine said no.  Any final determination of W#1’s applications would solely apply to Mr. Tawil and to his assets. As such, it could not be said that any final determination in Brooklyn would inequitably impact the “current” Mrs. Tawil. W#2 will not be bound by any final determination resulting from W#1’s applications against Mr. Tawil. W#2 may assert any claim she may have against Mr. Tawil in the New York County proceeding irrespective of the ultimate determination made regarding W#1’s  applications.

On the other hand, the Court noted that if a pendente lite sale of assets were to be permitted in the New York County action, Mary Tawil (W#1) must take priority. Mr. Tawil’s obligation to his first family as a matter of law and equity must come first.

Here, the current Mrs. Tawil’s attempt to race to the courthouse to obtain a judgment cannot be used to defeat the strong public policy in favor of priority to support a first family. This is especially true where the current spouse knows, or should have known, of the any [sic] financial obligations existing to the first family.

New York’s highest court made it clear in 2009 that second spouses accept the “baggage” that comes along with the “used” spouse. In Mahoney–Buntzman v. Buntzman, the Court of Appeals held that a spouse was not entitled to a recoupment credit for maintenance payments made by the other spouse to his prior spouse. A divorce trial is not to look back to adjust the asset division because one spouse was paying child support or maintenance throughout the marriage.

[T]he current Mrs. Tawil was, or should have been, fully cognizant that the plaintiff had financial obligations to a first family and, as such, she cannot credibly aver that she was unaware that said obligations would decrease the income and assets available to the subsequent family she built with the plaintiff . . . .  [T]he current Mrs. Tawil has no basis to claim that she will be inequitably affected by [her husband] fulfilling any court ordered financial obligations he owes to the prior Mrs. Tawil and the children of his first family.

Permitting W#2to join the Brooklyn action would not result in fairness to W#1. Her interests and the interests of W#2 are diametrically opposed. Justice Sunshine recognized that permitting W#2 to join the Brooklyn proceeding would almost certainly cause substantial prejudice to W#1 and the children of the plaintiff’s first family, delaying and making unnecessarily complex W#1’s post-judgment enforcement application (this was the 15thpost-judgment application since mid-2001 in the Brooklyn action; there have been 11 motions made in 2011 in the New York County action.)

Note: If a second spouse-to-be wants prior familial obligations to be taken into account in the event of the termination of the second marriage, such should be made the subject of a pre-nuptial agreement.

1040.jpgThe Appellate Division, Second Department, has again told J.H.O. Stanley Gartenstein that it was improper for him to award nontaxable spousal maintenance.

In Siskind v. Siskind, in addition to awarding the wife $65,000 per year in nontaxable maintenance until the wife reached her 65th birthday, J.H.O. Gartenstein equitably distributed the parties’ assets, awarded child support and a $340,000 counsel fee, and secured the husband’s support obligations with a $4 million life insurance policy (reduced on appeal to $3 million).

In its November, 2011 modification of that award, the Second Department recognized the presumption that spousal maintenance should be taxable income to the recipient spouse, and deductible to the payor. The appellate court stated:

. . . there was insufficient evidence justifying the Supreme Court’s direction that maintenance be nontaxable to the plaintiff, which is “a departure from the norm envisioned by current Internal Revenue Code provisions.”

In 2007, in Grumet v. Grumet, the Second Department had modified J.H.O. Gartenstein’s award to the wife of non-taxable maintenance, declaring that in the absence of a stated rationale for a departure from the norm envisioned by the Internal Revenue Code provisions, a maintenance award should be taxable.

Maintenance is appropriately taxable income to the recipient. Baron v. Baron (2nd Dept. 2010), Markopulous v. Markopulos, 274 A.D.2d 457, 710 N.Y.S.2d 636 (2nd Dept. 2000) ; see also Taverna v. Taverna (2008), where the Second Department modified the trial court award by making maintenance taxable. Such may have been the holding because the trial court properly declined to consider the husband’s tax liabilities resulting from the liquidation and distribution of investment accounts incident to equitable distribution, as the husband had failed to offer any competent evidence concerning the liabilities which would be incurred. See Fleishmann v. Fleischmann (2010 Supreme Westchester Co., Lubell, J.)

Continue Reading The Taxability of Spousal Maintenance Payments: a Subject of Inconsistent Court Decisions

College Fund 3.jpgIt is not uncommon for divorce settlement agreements to limit a parent’s contribution to a child’s college education to a portion of the expense to attend a campus within the State University of New York system. This is known as the “SUNY cap.”

A scholarly October, 2011 decision of New York County Supreme Court Justice Matthew F. Cooper tackled head-on the assumption that a court would not impose on a parent a share of the expenses of a private college education.

Pamela T. v. Marc B., involved the parents of 16- and 18-year old sons. The older boy, a child with “moderate emotional difficulty,” was a freshman at Syracuse University intending to study computer engineering and computer graphics. He was a graduate of a selective public Manhattan high school. The decision resolved the father’s objection to paying more than his share of a SUNY education.

A SUNY education would cost approximately $18,000 per year. Syracuse University, on the other hand, costs three times that amount, some $53,000 per year.

Both parents were lawyers, with private college and law school backgrounds. Each parent earned just over $100,000 per year. The mother had some $1,230,000 in savings and retirement accounts; the father $580,000.

Justice Cooper directed the father to bear 40% of the costs of that Syracuse University education. There is no SUNY cap mandated by New York law. The thrust of Justice Cooper’s decision was that:

the SUNY cap–to the extent that it stands for the proposition that before a parent can be compelled to contribute towards the cost of a private college there must be a showing that a child cannot receive an adequate education at a state college–is a doctrine that in many cases is harmful to the children of divorced parents, acts to discriminate against them, and is largely unworkable.

Continue Reading Divorced Parents may be Liable to Provide Children with a Private College Education