In 2011, after the parties separated, the mother received sole custody of the parties’ only child, who resided with her. The father was awarded access every weekend. The father subsequently filed a petition seeking increased access. After a hearing, Kings County Family Court Judge Maria Arias denied the pro se father’s petition.

The father appealed, contending that the Family Court should have granted his request for a copy of a forensic report prepared by a court-appointed forensic evaluator, and that the court erred in admitting the forensic report into evidence. In its July 10, 2019 opinion in Raymond v. Raymond, the Second Department affirmed.

Continue Reading Pro Se Father Denied Copy of Forensic Report Although Received in Evidence

In this divorce action, Strauss v. Strauss, the husband had obtained access to wife’s iPad and private text messages. He falsely told her that he did not have the iPad and that it was lost. The husband did provide the text messages to his counsel. However, it was not until two years after the fact that it was disclosed that the husband was in possession of the iPad and text messages They announced that they intended to use the text messages at the parties’ custody trial. The husband did not explain how or why he was legally permitted to retain wife’s iPad without her knowledge, and to access and take possession of wife’s personal data located on her iPad.

The lower court, New York County Supreme Court Justice Deborah A. Kaplan, granted the wife’s motion for sanctions and awarded $180,000.00 in fees to the wife’s counsel, Cohen Clair Lans Greifer Thorpe & Rottenstreich LLP, for the “frivolous conduct” of her husband and his counsel.

Continue Reading Husband and Counsel Sanctioned for Taking Wife’s iPad and Keeping Secret for 2 years

It took nine years to affirm a five-year maintenance award. In an April 24, 2019 decision of the Appellate Division, Second Department, the Court in Rogowski v. Rogowski affirmed a March, 2010 divorce judgment under which the wife was awarded maintenance for five years of $2500 per month plus 60% of the husband’s annual employment bonus in excess of $14,200. The action for divorce had been commenced in 2008.

The Court held that held that Nassau County Supreme Court Justice Arthur Diamond did not improvidently exercise his discretion when determining the amount and duration of maintenance. The Court emphasized the parties agreed that the wife would quit work and care for the children, and the parties’ respective incomes and future employment prospects.

Continue Reading Maintenance Award of 60% of Annual Bonus Is Affirmed

The separation agreement was the product of mediation; the wife was afforded the opportunity to consult with counsel; and the wife elected to sign the agreement, notwithstanding the advice of counsel not to do so.  “These facts, standing alone, do not shield the separation agreement from judicial scrutiny. The validity of the agreement is dependent upon an examination of the totality of the circumstances, including an examination of the terms of the agreement, to see if there is an inference of overreaching.”

So held the Appellate Division, Second Department in its April 24, 2019 decision in Mizrahi v. Mizrahi. Reversing the decision of Queens County Supreme Court Justice Margaret Parisi-McGowan that upheld the agreement without a hearing, the appellate court also noted the record disclosed no information regarding who retained and paid for the services of the mediator, and how the mediator arrived at the substantive terms of the agreement.

The Second Department noted:

because of the fiduciary relationship existing between spouses, a marital agreement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud or where it is shown to be manifestly unjust because of the other spouse’s overreaching. To rescind a separation agreement on the ground of overreaching, a wife must demonstrate both overreaching and unfairness.

Here, the court held that without a hearing to determine the totality of the circumstances, including the extent of the parties’ incomes and assets and the circumstances surrounding the execution of the separation agreement, it could not be determined on this record whether equity should intervene to invalidate the parties’ separation agreement.

Continue Reading Inference of Mediated Separation Agreement Invalidity Sufficient to Warrant Hearing

If you delay going to court after an event that changes rights and obligations, you do so at your peril.

In Fortgang v. Fortgang, the parties were divorced in May 2011. Under their stipulation of settlement, the parties agreed that the husband would pay $2,600 per month in basic child support for the parties’ two children. The stipulation provided that this child support obligation would decrease when the parties’ older child became emancipated, but did not provide the reduced amount.

In December 2013, the older child became emancipated, but the husband continued to pay the full child support amount. In November 2015, the parties’ younger child became emancipated, but the husband continued to pay child support for several months thereafter.

In December 2016, in response to motion by the wife, the husband cross-moved, for the first time, to recoup child support overpayments. Suffolk County Supreme Court Justice David T. Reilly granted the husband’s cross motion, and awarded him a money judgment against the wife for $30,422.32 in overpaid child support.

Continue Reading Recouping Overpaid Child Support: Two Lessons

Leaving parenting-time decisions to the future agreement of the parents is not a great idea, particularly with quarreling parents. So held the Appellate Division, Second Department, in its February, 2019 decision in Cabano v. Petrella.

In that case, the parents had entered into a December, 2013 so-ordered stipulation which, among other things, reaffirmed their joint legal custody, reaffirmed the mother’s residential custody, and set forth a detailed parental access schedule. That arrangement remained substantively in effect in a so-ordered modification stipulation entered in October, 2016.

In June, 2017, the father petitioned for a modification of the parental access schedule (apparently at least the third proceeding after parenting rights were initially established). After a hearing, Suffolk County Family Court Referee Kerri N. Lechtrecker granted the father additional parental access with the child.

Further, the Referee modified the number of hours of access to which each party was entitled on the mother’s birthday, the father’s birthday, and the child’s birthday. The order provided, in effect, that the parties each would have parental access with the child on his or her own birthday, and on the child’s birthday, if the birthday was during the other party’s parental access, for two hours on a school day and for four hours on a non-school day. The order required the parties to cooperate in reaching an agreement on the details.

The mother appealed. The Second Department modified that order.

Continue Reading Don’t Leave Future Parenting-Time Decisions for Later Agreement

What happens when, under a post-divorce QDRO, retirement benefits are paid to the “wrong” beneficiary? The Appellate Division, Second Department, in its March 6, 2019 decision in Schatz v. Feliciano-Schatz held that the proceeds may be reached by the correct beneficiary

In 1998, Susan (W1) and Aloysius (H) were divorced. In February 2004, H married Carmen (W2). In December 2006, H retired from his employment and began receiving benefits from his New York Stock Exchange Retirement Plan. H elected a joint and survivor annuity with W2 named as joint annuitant. In November 2011, H and W2 were divorced.

In June, 2012, H and W2 entered into an amendment to their 2011 stipulation of settlement and judgment of divorce. Each of them waived their rights to each other’s retirement plans. The amendment also indicated that in the event that either of the parties received payments in contravention of the agreement, the benefits would be turned over to either a beneficiary designated by the other party or to the other party’s estate.

Subsequent to executing the amendment, W2 remained the only named beneficiary on H’s retirement plan. On May 21, 2013, W1 remarried H, and 9 days later on May 30, 2013, H died. Upon H’s death, benefits were paid out to W2 as the named beneficiary under H’s retirement plan.

W1 (now W3) and the administrator of H’s estate (the plaintiffs) commenced this action to recover the proceeds. They alleged that the plaintiffs were entitled to the decedent’s retirement benefits, as W2 had waived her rights to the retirement benefits pursuant to the amendment. The plaintiffs moved for summary judgment, and W2 (the defendant) cross-moved for summary judgment dismissing the complaint.

Orange County Supreme Court Justice Maria Vazquez-Doles granted W2’s motion and dismissed the complaint. The plaintiffs appealed. The Second Department, in effect, reversed, granting the plaintiffs’ motion.

Although ERISA prohibits the assignment or alienation of benefits while they are held by the plan administrator, once they are paid to the beneficiary, the funds are no longer entitled to that protection. The appellate court agreed that W2 validly waived her entitlement to the subject retirement benefits. The amendment stated that H and W2 waived any and all claims that “he or she may have or may hereafter acquire or possess to share in any pension, profit-sharing, IRA, 401(k) plan or any other retirement or deferred compensation plan established for the other party.” That waiver language was sufficiently explicit to effectuate a valid waiver of benefits under the subject plan. Moreover, contrary to W2’s contention, the language of the waiver requiring that payments received in contravention of the waiver be turned over to a designated beneficiary or the estate of the decedent does not violate the anti-alienation provisions of ERISA.

The Second Department also noted that W1 failed to demonstrate that she was entitled to a nunc pro tunc QDRO; that she had an existing interest in the subject pension benefits prior to the decedent’s death. While a QDRO may be obtained after the death of the plan participant, a QDRO only renders enforceable an already-existing interest.

Comment: Check your agreement boilerplate for the language in this decision.

Richard M. Mahon II, of Catania, Mahon, Milligram & Rider, PLLC, of Newburgh, represented W1. Mark D. Stern, of Goshen, NY, represented W2.

In a February, 2019 decision, the Appellate Division, Second Department, foiled the cooperative efforts of previously-divorced parties, by their settlement of post-judgment issues, to avoid an interim fee award to the ex-wife’s counsel to prosecute an appeal.

In Rhodes v. Rhodes, the parties were married in 1993, had three children, and divorced in 2008. In 2013, the ex-husband successfully moved to modify the parties’ custody arrangement and, in a December, 2014 order, was granted residential custody of the children. The ex-wife appealed from that order.

In May 2015, the ex-wife moved for interim appellate attorney’s fees and costs. In an August 25, 2015 order, Former Suffolk County Supreme Court Acting Justice Marlene L. Budd granted that motion, awarding the ex-wife $20,000 in attorney’s fees and costs “for the prosecution of the appeal, with leave to apply for additional sums upon the completion of the appeal.” The ex-husband was directed to pay those attorney’s fees and costs to the ex-wife’s then-attorney, Karyn A. Villar, PLLC (hereinafter Villar), within 20 days of the order.

When payment was not made, on September 23, 2015, Villar moved to hold the ex-husband in civil contempt of the fee order. The ex-husband cross-moved for leave to renew his opposition to the ex-wife’s prior motion for interim appellate attorney’s fees and costs. The ex-husband attached to his cross motion a stipulation of settlement dated September 28, 2015, in which the parties agreed that the ex-wife would waive payment of attorney’s fees and costs owed by the ex-husband pursuant to the August, 2015 order. The ex-wife retained new counsel, and thereafter cross-moved to impose sanctions against Villar, arguing that Villar’s contempt motion was punitive and an abuse of process.

In an order dated March 7, 2016, Suffolk County Supreme Court Justice Carol MacKenzie (1) denied Villar’s motion to hold the ex-husband in civil contempt, (2) vacated the August, 2015 interim fee award and denied a fee, and (3) granted the ex-wife’s cross motion to impose sanctions against Villar, directing Villar to pay the ex-wife’s new attorneys $2,500. Villar appealed.

Continue Reading Divorced Parties Foiled in Efforts to Avoid Counsel Fee Award

A January 9, 2019 decision of the Appellate Division, Second Department, may foreshadow an increase in support enforcement proceedings in Family Court, or promote the current payment of child support obligations, or both.

In Mensch v. Mensch, the court reversed an order of Suffolk County Family Court Judge Kathy G. Bergmann that denied a mother’s objections to the denial of a counsel fee award by Support Magistrate Barbara Lynaugh.

The parties were the parents of five children. In December 2017, the mother filed a child support enforcement petition alleging that the father failed to pay $1,635 in child support from April through August, 2017. The support obligation was based on a so-ordered stipulation of settlement that survived the parties’ Judgment of Divorce.

Shortly after the petition was filed, the father paid the mother the amount sought in the petition. The mother thereafter moved for an award of the attorneys’ fees she incurred in commencing this enforcement proceeding.

Magistrate Lynaugh denied her motion. The mother filed objections that were denied by Judge Bergmann.

Reversing, the Second Department held that the denial of an award of attorneys’ fees to the mother was an improvident exercise of discretion. The father paid the arrears demanded, but only after the mother was forced to expend attorneys’ fees to commence an enforcement proceeding.

The court rejected the father’s argument that he was engaged in a dispute over whether he should be credited for payments for cell phone expenses and college expenses paid before the entry of the parties’ judgment of divorce. However, that dispute did not authorize the father to engage in self-help by withholding child support payments that he ultimately did not dispute were due and owing.

Accordingly, the mother was entitled to an award of attorneys’ fees and the matter was remitted to the Family Court to determine the amount of the mother’s reasonable attorneys’ fees incurred in connection with this proceeding.

Michael J. Miller, of Heilig, Branigan, Miller & Castrovinci, of Holbrook, represented the mother. Karen D. McGuire, of McGuire Condon, P.C., of Huntington, represented the father.

Using the state’s Child Support Enforcement Services can have unintended results. Having support payments made through a Support Collection Unit triggers a cost-of-living adjustment procedure that may result in a significant change to the court-ordered support obligations to which parties had agreed.

Consider the September 26, 2018 decision of the Appellate Division, Second Department, in Murray v. Murray. There, the former spouses in their 2001 surviving divorce settlement agreement had agreed to share joint custody of their children, with the mother having physical custody.

The parties had opted out of the basic child support obligations of the Child Support Standards Act (C.S.S.A.), with the father agreeing to pay a certain sum for child support from August 1, 2001, through January 31, 2006. The parties also executed a rider to their stipulation, in which they agreed that beginning on February 1, 2006, until both children were emancipated, the father would pay child support to the mother based on the C.S.S.A., but using the parties’ total combined income for the year 2005.

In an 2009 order, the Family Court, upon the parties’ consent, directed the father to pay $740.56 per week in child support for both children through the Support Collection Unit (the SCU).

In March 2017, the SCU notified the parties of the presumptive cost-of-living adjustment (COLA) to the father’s child support obligation authorized by Family Court Act §413-a. That would increase the father’s weekly child support obligation to $822.00.

The mother filed an objection to the cost of living adjustment pursuant to Family Court Act §413-a(3), requiring that a hearing be held for a redetermination under the C.S.S.A. After that hearing, Suffolk County Support Magistrate Aletha V. Fields, in effect, vacated the COLA increase. At the time, the subject child was 20 years old and entering her third year of college. Upon recalculating the amount of child support, Magistrate Fields fixed the father’s child support obligation at $360.00 per week. The Support Magistrate found that although the parties’ combined parental income was $371,697.08, the mother failed to set forth a basis upon which to apply the statutory child support percentage to any income above the statutory cap of $143,000.00.

The mother filed objections to the Support Magistrate’s order. However, Family Court Judge Anthony S. Senft, Jr., denied the mother’s objections. The mother appealed.

Continue Reading Child Support Payments Through Support Collection Units May Result in Unanticipated Changes