It appears that the tremendous burden placed on the Appellate Division, Second Department, to work through its caseload has often led to opinions which leave you wanting to know a little more of the facts so you can put the case into perspective.

Take the the Second Department’s May 31, 2017 decision in Fiore v. Fiore, where the lower court’s opinion was modified to increase a father’s college obligation and which determined summer camp to be the equivalent of child care.

After nine years of marriage and one child, the parties settled their divorce action by an amended agreement that was incorporated into their 2000 Judgment of Divorce. Included among the settlement’s provisions were that the father would pay $12,289 annually for basic child support; that the parents would each pay their pro rata share of unreimbursed medical expenses; and that the father would pay 58% of the cost of day care.

In 2014, the mother moved for upward modification of basic child support, and other child support-related relief, including contribution toward the child’s summer camp and college expenses. Supreme Court, Nassau County Justice Julianne T. Capetola denied the upward modification, denied summer camp expenses, and limited the father’s obligation to pay college expenses to $5,000 per semester.

On appeal, the Second Department upheld the denial of an increase in the basic child support obligation. The mother had failed to meet her burden of proving that there had been a substantial, unanticipated, and unreasonable change in circumstances resulting in a concomitant need, or that the settlement was not fair and equitable when entered into. This was the required burden as the amended stipulation of settlement was entered prior to the effective date of the 2010 amendments to Domestic Relations Law §236(B)(9)(b)(2), when the burden was lessened.Continue Reading Appellate Court Increases College and Child Care Expense Obligations

In his January 7, 2013 decision in Gluck v. Gluck, Nassau County Supreme Court Justice Daniel R. Palmieri, determined that the wife pay 80% of the counsel fees incurred by the husband, as such reflected the wife’s pro rata share of the parties’ total income.

Following a 13-day trial, the parties agreed that the Court would consider the legal fee applications of  both parties on submitted papers. The defendant-husband (the less-monied spouse) sought $125,000.00 in counsel fees under Domestic Relations Law §237 for services rendered by the two law firms that had represented him consecutively in this action.

Justice Palmieri noted that earlier, and after the Court issued its Decision and Order on the issues of custody and parental access, the parties had entered into a stipulation regarding child support and certain holidays. Certain child care expenses were apportioned 80% to the wife and 20% to the husband. The Court adopted those proportions as appropriately based on the incomes of the parties (approximately $360,000.00 and $90,000.00, respectively).

In opposition to the husband’s application, the wife contended that the husband’s obstructionist tactics and unreasonable demands unnecessarily prolonged and delayed the action, going to trial and unreasonably refusing to settle. This, the wife claimed, unnecessarily added to her own counsel fees which were in excess of $200,000.00.

Neither party claimed that the bills of opposing counsel were excessive or not reflective of work performed.

Mary Ann Aiello, Esq., the husband’s latter attorney, conducted the trial and negotiated stipulations in March 2012 regarding the sale of the marital residence and in August 2012 on the issues of equitable distribution and maintenance. After the trial of the remaining issues, the parties settled the issue of child support and certain holiday visitation.Continue Reading Divorce Counsel Fee Awards: Beware Formulaic Approaches