Justice Francis A. Nicolai

Here’s a reminder. Look over the “boilerplate” counsel-fees-on-default provision of your settlement agreements; and re-read them when resolving enforcement proceedings.

Take a lesson from the July 25, 2018 decision of the Appellate Division, Second Department, in Posner v. Posner. There, The parties’ 2010 judgment of divorce incorporated, but did not merge, their stipulation of settlement. That stipulation provided that where one of the parties commences litigation to enforce it, and that litigation does not “result in a judgment or order in favor of the party” who commenced the litigation, that party shall reimburse the other party for any and all expenses, including attorney’s fees.

In 2011, the husband commenced litigation in the Family Court to enforce certain stipulation provisions. Thereafter, the wife filed a contempt motion under a separate docket number. After eight days of trial over nine months, the parties agreed to withdraw their respective petitions with prejudice. The parties nevertheless “reserve[d] all other rights provided for” in the 2010 stipulation of settlement.

In January 2014, the wife filed a motion in the Supreme Court seeking an award of attorney’s fees pursuant to the parties’ 2010 stipulation of settlement for the 2011 Family Court litigation. Westchester County Supreme Court Justice Francis A. Nicolai granted the wife’s motion to the extent of finding that the wife was entitled to an award of attorney’s fees and set the matter down for a hearing as to the appropriate amount. In a judgment entered September 27, 2016, after a hearing, Justice Janet C. Malone awarded the wife a judgment for attorney’s fees in the sum of $224,287. The husband appealed.


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In its May 25, 2016 decision in Fitzpatrick v. Fitzpatrick, the Appellate Division, Second Department, affirmed the denial of an ex-wife’s application to enforce a divorce settlement provision that called for an automatic increase in child support upon the ex-husband’s default in any other obligation of that settlement.

The parties entered into that separation

Two decisions this past month involved joint custody awards despite antagonism between the parents and contested custody proceedings.

In Prohaszka v. Prohaszka, Supreme Court Putnam County Justice Francis A. Nicolai had awarded the divorcing parties joint legal custody of the parties’ children, with the mother having primary physical custody and final decision-making authority. In its February 6, 2013 decision on appeal, the Second Department modified that order to add a provision directing the mother to consult with the father regarding any issues involving the children’s health, medical care, education, religion, and general welfare prior to exercising her final decision-making authority for the children, but otherwise affirmed Justice Nicolai’s order.

Although the antagonism between the parties was evident to the appellate court, it was also apparent that both parties generally behaved appropriately with their children, that they could make parenting decisions together, and that the children were attached to both parents. Under those circumstances, there was a sound and substantial basis in the record for Justice Nicolai to have found that the best interests of the children would be served by awarding the parties joint custody. Similarly, the trial record also supported the determination that primary physical custody should be with the mother and that she should have final decision-making authority.

The court, however, should have directed the plaintiff to consult with the defendant regarding any issues involving the children’s health, medical care, education, religion, and general welfare prior to exercising her final decision-making authority.

In his January 8, 2013 decision in Scott M. v. Ilona M., Kings County Supreme Court Justice Jeffrey S. Sunshine awarded the parties joint custody of their son; each parent having access alternating on a weekly basis.

Justice Sunshine did note that a significant factor in determining custody was whether the heated custody dispute, itself, indicated that an award of joint custody would be ineffective. Justice Sunshine cited to the Court of Appeals decision in Braiman v. Braiman, (44 N.Y.2d 584), which rejected joint or shared custody where the parties are in bitter conflict and do not agree to such an arrangement. That decision concluded:

Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. As a court ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos.

[Question: If the children live primarily with one parent and that parent has final decision-making authority, what does “joint custody” mean? Is it merely a psychological benefit for the parent and the child? Does it entitle the non-primary custodian to make decisions in emergency situations when the other parent is not available? Braiman, itself, noted that “joint”, or, as it is sometimes called “divided”, custody reposes in both parents a shared responsibility for and control of a child’s upbringing. In Bast v. Rossoff, 167 Misc.2d 749, 752 (Sup. Ct. 1995), affd, 239 A.D.2d 106 (1st Dept 1997), affd as mod and remanded, 91 N.Y.2d 723 (1998), it was stated “In New York the term ‘joint custody’ generally is used to refer only to joint legal custody, or joint decision making.”]


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