Generally, it is the more “successful” spouse who submits the proposed judgment of divorce to the Court to be signed and entered. In all events, a spouse who intends to take an appeal on an issue must make sure:

  • that the issue to be appealed is covered by the judgment;
  • or an appeal is taken separately from the order deciding the issue; or
  • an amended judgment is entered and an appeal is taken from that amended judgment.

Take the July 8, 2020 decision of the Appellate Division, Second Department, in D’Arrigo v. D’Arrigo. Among the issues resolved on appeal, the Second Department extended to five years the three-year maintenance award of $7,500 per month made by Westchester County Supreme Court Justice Victor Grossman.

The Second Department also affirmed Justice Grossman’s award to the husband of a $118,000 separate property credit for realty he owned before the marriage and transferred to himself and the wife, jointly, after the marriage. This was not a dollar-for-dollar credit, but rather a credit calculated, in part, upon the proof of the husband’s equity in the property. The lower court had denied the husband’s request for a credit representing the full value of the property at the time that it was converted to marital property because of deficiencies in his proof of the mortgage balance at the time it was converted to marital property.

However, the Second Department declined to consider the husband’s contention that the award of counsel fees to the wife was excessive. Justice Grossman’s order awarding the wife fees, was decided on the same day as the judgment of divorce was signed, and was not incorporated into the judgment. Thus, the order did not “necessarily affect” the final judgment and could not be reviewed (CPLR 5501[a][1]). Either the husband needed to take an appeal from the order, itself, or make sure that the award was included in the judgment (or amended judgment) appealed from.

Maureen A. Dunn, of Johnson & Cohen, LLP, of White Plains, represented the wife. Heidi A. Tallentire and Ryan J. Casson, of Blank Rome, LLP, of Manhattan, represented the husband.

The parties’ 2013 divorce stipulation of settlement provided that child support for their two children would be adjusted annually. Beginning May 1, 2014:

“the parties shall set by April 30, a payment schedule of the Parent’s total obligation for base child support ‘made pursuant to the formula set forth below and income caps for the fiscal year beginning May 1 and continuing through April 30th of the following year. This schedule shall be based on the actual income’ for the previous calendar year. The Father shall then pay this base child support’ amount to the Mother in monthly installments.” [emphasis added]

For the purpose of computing base child support, the stipulation defined “income” as “the gross earned income solely attributable to a party and as listed on the Form 1040 United States Individual Income Tax Return filed by the parties, less (1) FICA taxes actually paid; (2) Medicare taxes actually paid; less (3) New York City or Yonkers income or earnings taxes actually paid.”

In 2016, the mother received a salary of $86,801 for her work as a veterinarian. She also received $39,631 in “[o]rdinary dividends” and $245,629 in “[r]ental real estate, royalties, partnerships, S corporations, trusts, etc.”  In 2017, the father calculated his base child support obligation using the mother’s adjusted gross income of $369,092. The mother disputed the calculation, contending that the income derived from her ownership interest in the LLCs was not “earned” income and therefore did not fall under the stipulation’s definition of “income.”

Continue Reading Drafting Income Calculations in Divorce Settlement Agreements

Under their 2013 mediated divorce settlement agreement, these ex-spouses agreed to continue to jointly own and operate their distribution business. The agreement reported that their “solid working relationship with a high level of trust in one another’s skills” made “co-ownership a viable solution.” The ex-husband was to receive 30% of the joint business’s profit going forward, and the ex-wife would retain the remaining 70%.

Five years later, the ex-wife commenced this action alleging that after the divorce, the ex-husband began distributing rival products, poached a number of associates from the joint business, ceased recruiting new associates for the joint business, and assisted his new fiancée in establishing her own competing business — all to the detriment of the parties’ joint business. Based on these allegations, the ex-wife claimed that the joint business was no longer viable. She sought, in effect, to terminate the business and obtain such other relief to which she may be entitled.

Continue Reading Continuing a Jointly-Owned Business after a Divorce

Appreciation. Innovation. Frustration. All can be heard in New York County Supreme Court Justice Matthew Cooper’s May 18, 2020 decision in Chu v. Lin, dealing with parenting and marital residence issues in an ongoing divorce action. Justice Cooper begins with praise of the New York court system’s stepping up to adapt and press on during the COVID-19 pandemic. Indeed, it may “its finest hour.” At the same time, he bemoans the inadequacy of the new technology.

“While the true heroes of this medical emergency are undoubtedly health care workers, first responders, and other front-line workers who have put their health, and even their lives, on the line caring for others and supplying vital goods and services, an immense amount of credit must also be given to those who have managed to keep our courts open and running under the most difficult of circumstances imaginable. An independent, operational court system may not be an absolute necessity for sustaining life itself, but it is nevertheless an essential component of life as we know it in this country, as it is of any full-fledged constitutional democracy.”

In Chu, the pandemic exacerbated existing problems with parental access. Throughout the divorce action’s two-year history, a lasting resolution on custody and parental access had been stymied by a toxic mix of dysfunctional parenting, allegations of domestic violence, the existence of a Family Court Order of Protection, and an inability to abide by court orders.

Continue Reading Parenting Issues under COVID, Part II

Four recent decisions address the issue of whether “stay at home” orders and the generalized pandemic threat are sufficient to deprive a child of regular and meaningful personal contact with both parents.

No, held Bronx County Family Court Judge Ariel D. Chesler on May 7, 2020 in Matter of S.V. v. A.J.

A generalized fear of the coronavirus crisis we all face is insufficient to severely limit and perhaps harm a child’s relationship with a parent.

There, the parties were the parents 4- and 2-year-old children who lived primarily with their mother. Prior to the father’s current application, numerous Family Court petitions had been filed. However, no temporary or final custody orders had been entered. A January 16, 2020 order granted the father alternate weekend visitation. Moreover, a Criminal Court final Order of Protection directed the father to stay away from the mother. As a result, the children were being exchanged at a police precinct.

The visitation order had been followed until the New York and New Jersey quarantine orders were issued. Then, the mother unilaterally decided not to produce the children for three alternate weekend visits beginning March 27th. In response, the parties arranged through their attorneys for daily video conference visits to take place between the father and the children. However, when further efforts by the parties to resolve the issue failed, the father petitioned the court to enforce the temporary order schedule, schedule makeup visits, and to direct daily video conferences.

Continue Reading Visitation in These COVID-19 Times

Please indulge me; it’s one of my pet issues. And I apologize in advance for what may be my most boring blog post to date.

Writing math narratively is very difficult. When drafting a divorce settlement agreement, I try to include examples whenever formulas are written out. When reading decisions, I often draw a flow chart to help me follow the calculations.

Calculations done by the court establish rules of law. When an appellate court does it, that’s the way it’s going to be done in all cases like that in the future. All the more reason that the reader be able to follow and understand the calculations made by the court. For each calculation, you need to know how much went from where to where and why.

Sometimes, I can’t follow those calculations made by the court. Take the February 26, 2020 decision of the Second Department in Alliger-Bograd v. Bograd. The Court modified the equitable distribution credits awarded by retired Suffolk County Supreme Court Justice Carol MacKenzie; reducing from $81,829.15 to $23,350.00 the amount to be paid by a husband to the wife, in addition to the wife acquiring the husband’s interest in the marital residence.

I am not sure whether the decision provides all the numbers used to get to the final result. The marital residence being acquired by the wife was worth $545,000.00 There was a mortgage and a Home Equity Line of Credit (HELOC) that totaled $321,000.00. At first look, there was $224,000.00 in equity.

Continue Reading Math in Divorce Decisions: How Much Goes from Where to Where and Why?

Under appropriate circumstances, post-divorce spousal support may last much longer than the marriage itself. So held the Appellate Division, Second Department, in its September 2019 decision in Murphy v. Murphy.

The parties were married in 2004. They had no children together. Prior to the marriage, the wife was diagnosed with multiple sclerosis.

In 2013, after 8½ years of marriage, the wife commenced this action for a divorce. After three years, the parties were able to enter a stipulation resolving the issue of equitable distribution. The issue of maintenance was tried before Supreme Court, Suffolk County Justice Carol MacKenzie. At the time of trial, the wife was 42 years old and the husband 47.

The critical issue presented was whether the wife was capable of working, and if so, in what capacity, as a result of the symptoms that she alleged she experienced due to multiple sclerosis. Justice MacKenzie concluded that the wife was incapable of maintaining employment. The wife was awarded maintenance of $10,760 per month terminating 25 years after trial when the wife turned 67 years old.

Continue Reading Love, Honor and Support

A breach by one ex-spouse of a divorce settlement stipulation may or may not excuse a breach by the other. The obligations of the parties may or may not be independent.

In its July, 2019 decision in Lainez v. Orellana, the Appellate Division, Second Department, held that the answer could be found the clear and unambiguous language of the stipulation. The parties could have made the obligations interdependent; they did not. The obligations, then, were not dependent.

In the parties 2011 divorce settlement agreement, the husband agreed to transfer his interest in the marital residence to the wife, and the wife agreed to hold the husband harmless with respect to all mortgage payments and do everything in her power to remove his name from the mortgage.

Following the divorce, the wife continued to live in the marital residence. However, neither party performed his or her obligations under the settlement and the husband had made the post-agreement monthly mortgage payments.

Continue Reading Does One Party’s Breach of a Divorce Settlement Excuse a Breach by the Other?

In its June, 2019 decision in English v. Smith, the Second Department reminds to properly memorialize any agreed-upon understandings or changes to a divorce settlement agreement.

The parties’ Separation Agreement was incorporated but not merged into their 2015 judgment of divorce. The father was to pay the mother child support. In addition, the parents would share equally in the costs of their child’s undergraduate and graduate education, extracurricular activities, and uncovered medical, dental, orthodontic, eye care, and mental health treatment.

The agreement also provided that neither the agreement nor any provisions thereof could be modified or waived except by a writing “duly subscribed and acknowledged by both parties with the same formality as” the separation agreement itself.

The parties’ child began attending University College in Dublin, Ireland, on a full tuition scholarship in 2015. The father stopped making child support payments to the mother in May 2015. The father contended that the parties had agreed that they would equally share in paying the child’s living expenses in lieu of the father paying child support to the mother.

Continue Reading Modifying Support? Do it Right. Claimed Off-Sets Denied