1% sale high resolution renderingDivorce cases are supposed to have an ever-increasing set of rules. Last week’s decision of the Appellate Division, First Department, in Campbell v. Cambell demonstrates that while a judge must follow the rules, the judge still has many tools to accomplish an equitable result. Perhaps the most powerful is discretion.

In Campbell, the parties were married in 1973. After living together as husband and wife for only 52 months, the husband vacated the marital residence in 1978. The parties’ minor son remained with the wife. For the next 37 years, the parties lived separate and apart, the husband providing no economic or non-economic support to the wife and child.

In 2011, the wife retired from her job at Lincoln Hospital, where she began working in 1973, the same year as the marriage. She is now collecting $4,241.95 per month in pension benefits.

In 2013, the wife commenced this action for divorce. The wife’s pension was the parties’ primary marital asset. Supreme Court, Bronx County Justice Doris M. Gonzalez awarded the husband 50% of that portion of the wife’s pension that was accumulated during the 52 months the parties lived together. The husband appealed.


Continue Reading Husband Who Left Wife and Child Awarded 1% of Wife’s Pension

Knight1All hail Sir Richard of Rochester! Chivalry is not dead.

Although opening his January 17, 2015 opinion in Cornell v. Cornell with “Sticks and stones will break my bones, But words will never harm me,” Monroe County Acting Supreme Court Justice Richard A. Dollinger nevertheless held that vile words to a child support-paying mother from her college-aged son were not to be tolerated.

As Justice Dollinger summarized, this case tested whether a son who engaged in vile disparagement of his mother, may strip his father of his right to claim support, including payment of college expenses. The Court held that it did.

No one should be permitted to refer to their mother in such fashion, and then, without recanting or asking for forgiveness, seek the court’s assistance to have that person support their future life. This court will not condone such actions by an unworthy son.

In his motion papers before the Court, the father sought child support from the mother and payment for college expenses. The mother argued that her obligations to pay any support – including the cost of college education – were obviated because of the child’s calculated estrangement from her. She claimed that her son described her as a “douche bag” and an “asshole,” and that this, among other behavior, has caused alienation between her and the son.


Continue Reading Do You Kiss Your Mother With That Mouth?

Where a divorce settlement agreement provides that the parties have agreed to deviate from the Child Support Standards Act formula in part because of the time the “non-custodial” parent is to spend with the children, a substantial reduction in that visitation may result in an increase in the child support obligation.

Such was the holding of the Fourth Department in its September 27, 2013 decision in Gallagher v. Gallagher.

That parties’ original child support obligation was fixed by their separation agreement. That separation agreement had been incorporated, but did not merge into the parties’ Judgment of Divorce. The agreement recited that the father’s obligation varied from the Child Support Standards Act formula due to several factors including the fact that the children were to spend a significant portion of time with the father pursuant to the visitation schedule set forth in the separation agreement. [We are not provided with the amount of the child support obligation, the incomes of the parties, nor the agreement’s visitation schedule.]

When the father’s relationship with the children broke down, the mother petitioned the Steuben County Family Court for an upward modification of the father’s child support obligation. She alleged that there was now only sporadic visitation with the children, as a result of which the mother claimed a concomitant increase in her child-rearing expenses.

The evidence presented before Family Court Judge Joseph W. Latham established that such a breakdown occurred. However, Judge Latham ruled that the mother failed to establish a sufficient change in circumstances to warrant modification of the father’s child support obligation.

The Fourth Department disagreed. Quoting the 2002 decision of the Court of Appeals in Gravlin v. Ruppert, 98 N.Y.2d 1, 6, 743 N.Y.S.2d 773 (2002), the Fourth Department stated:

The complete breakdown in the visitation arrangement, which effectively extinguished [the father’s] support obligation, constituted an unanticipated change in circumstances that created the need for modification of the child support obligations.

The Fourth Department  therefore reversed the order, reinstated the mother’s petition, and remitted the matter to the Family Court for a determination of the appropriate amount of support to be paid by the father, after a further hearing if necessary.


Continue Reading Sporadic Visitation by Father is Basis to Increase Child Support