At a divorce trial, testimony by Skype will be allowed for the appraiser of an Oslo apartment. So held New York County Supreme Court Special Referee Louis Crespo in his April 3, 2014 decision in Steineger v. Perkins.

Among other discovery-related applications after the matter had been placed on the trial calendar, Referee Crespo, upon the husband’s request, authorized updated appraisals. These included the parties’ Oslo apartment that had been purchased in or about 2011 for $1,400,000. The Referee noted that the appropriate value should be the most recent date, “as distribution of the marital assets based on older values can result in a windfall profit for one of the parties over the other.”

The Referee also ruled that the husband will be allowed to call the real estate appraiser of the Oslo apartment viz-a-viz [sic; vis-à-vis literally meaning face-to-face] Skype conditioned on the following:

  1. the appraiser speaks the English language without the need of a Norwegian interpreter;
  2. his attorney provides the computer laptop to access Skype by way of the internet;
  3. the appraiser shall be examined in an office without outside interference; and
  4. and that the appraiser consents to the jurisdiction to the Court although testifying outside of New York.

The Court finds that calling a non-party witness, although retained by a party, by way of Skype is reasonable given the time constraints and expense to fly in a witness from Norway for the limited purpose of providing an opinion as to the value of the apartment. In addition, with the use of live, two-way video via Skype, the witness will be subject to cross-examination before the Special Referee and attorneys for the parties, making the testimony reliable.

As the fact finder, the Referee ruled, measuring credibility will not be compromised because the method to measure the same can be had by way of two-way video via Skype. Finally, the opinion testimony will not involve materially disputed facts, such as observations of an event, and will avoid the unnecessary costs of flying in a witness to testify about the value of the Oslo apartment. Referee Crepo noted that this was not a criminal case where a liberty interest is at stake. He found that the Skype protocol in this instance would allow for live witness testimony presented through real-time. Effective cross examination as well as the assessment of the witness’ credibility would not be hampered.

Quoting from Jessica M. Natale, Exploring Virtual Legal Presence: The Present and the Promise, 1 J. High Tech. L. 157, 167 [2002], Referee Crespo noted “The court system has recognized the benefits and validity of being virtually present as opposed to physically present. Virtual presence presents witnesses with an inexpensive alternative to testifying over the Internet via video and audio technology.”

Finally, the Referee stated the Skype protocol was vastly superior to testimony by speaker phone which had been permitted in another case (Superior Sales & Salvage v. Time Release Sciences, 227 A.D.2d 987, 643 N.Y.S.2d 291 [4th Dept. 1996; trial court did not err in permitting defendant’s witness to go on vacation and to conclude his cross-examination testimony by speaker phone]).

Although not cited by the Referee, testimony by Skype was also allowed by Sullivan County Court Judge Frank J. Labuda in People v. Novak, 41 Misc. 3d 733, 971 N.Y.S.2d 197 (2013). The defendant, charged with murder, requested that Skype be used as his desired witness would be unable to appear due to work constraints. Judge Labuda noted that the witness would be subject to cross-examination before a jury, and concerns regarding constitutional Confrontation Clause issues were minimized.

Falanga.jpgIn his March 28, 2011 decision in A.C. v. D.R., Supreme Court Nassau County Justice Anthony J. Falanga gave full effect to New York’s new no-fault divorce law and temporary financial relief amendments.

In this first blog of two parts, the Court’s joinder of the wife’s no-fault action with the husband’s pre-no-fault action will be considered, together with the denial of the the wife’s motion for partial summary judgment on her no-fault grounds.  Although holding there is no defense to a no-fault claim, the Court declared that summary judgment and bifurcation of grounds issues are inapproriate.

Wednesday’s blog will consder the financial awards granted under the recent D.R.L. amendments.

The parties were married in 1992 and have 3 children, ages 13, 10 and 7. The husband, 52, is a physician; the wife, 46, a homemaker.

The husband commenced his divorce action on July 27, 2010 on the grounds of constructive abandonment and/or cruelty, although the wife was not served until October 22, 2010 (well within the 120 days of filing needed for timely service). However, four days before such timely service, the wife filed her own Summons with Notice, commencing an irretrievable-breakdown divorce action under D.R.L. §170(7) [effective October 13, 2010].

Earlier in this case, Justice Falanga resolved by January 18 Order, the husband’s motion to consolidate the two actions. The wife opposed on the grounds that if her action was subsumed within the earlier action, she would be prejudiced by her inability to avail herself of the new financial statutes. Represented by Robert Broderick, Esq., the wife argued instead for joinder for trial under C.P.L.R. §602(a), leaving the two actions intact, yet bringing the two actions together in one venue for pretrial and trial proceedings.

Justice Falanga noted that by joining the cases, as opposed to consolidating them, the husband would preserve his earlier commencement date for Equitable Distribution purposes, yet the wife would be entitled to relief under the later-enacted amendments to D.R.L. §§236B(5-a) and 237. In its January 18 Order, the Court granted a joint trial and joint discovery, after a bifurcated immediate grounds trial.

However, before that trial, the wife moved for partial summary judgment to establish her no-fault grounds as well as for interim financial relief.

In its March 28 Order, the Court re-analyzed the issues addressed in its January 18Order, denied partial summary judgment and canceled the grounds trial. In doing so, Justice Falanga gave true meaning to the no-fault nature of New York’s new divorce ground.

. . . [A] plaintiff’s self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken. . . . In adopting no-fault divorce, the Legislature implicitly recognized that the parties to a marriage should be able to make personal and unavoidably subjective decisions about the continuation of their marriage partnership.

. . . .

Therefore, in this court’s view, the Legislature did not intend nor is there a defense to DRL § 170(7).

Denying partial summary judgment, Justice Falanga also gave full import to the second sentence of D.R.L. §170(7), which provides that “no judgment of divorce shall be granted” until the custody and financial issues have been resolved. Such, the Court held, precludes the granting of summary judgment.

Continue Reading Court Recognizes There Is No Defense to No-Fault Divorce, But Withholds Summary Judgment

Muller - Robert.jpgIn actions commenced on or after October 12, 2010, Domestic Relations Law §170(7) provides for granting a divorce where one party states under oath that “the relationship between husband and wife has broken down irretrievably for a period of at least six months . . . .”

It what may be the first decision to apply this no-fault divorce law, Justice Robert J. Muller of the Essex County Supreme Court, in Strack v. Strack has effectively determined to eliminate its no-fault nature.

Justice Muller decided a motion to dismiss a no-fault complaint seeking a divorce after 47 years of marriage. First, the Court ruled that C.P.L.R. 3016(c) requires that allegations of misconduct or complained-of acts be specified in a no-fault complaint. However, the “irretrievable breakdown” ground requires no misconduct; there need be no acts complained of. There is nothing to “specify” except one party’s wholly subjective belief that the marriage has broken down irretrievably.

Second, Justice Muller ruled that as the Legislature did not include irretrievable breakdown within the exceptions to the the five-year Statute of Limitations of D.R.L. §210(a), no divorce will be granted if the marriage broke down more than five years before the action was commenced. The Strack decision does not reveal whether the wife actually pleaded that the marriage first broke down more than five years before commencement. Indeed the language quoted from the complaint pleads only that the marriage had been irretrievable for “at least six months.” Accordingly, the Statute of Limitations defense raised by Mr. Strack [i.e., you can’t have a divorce because our marriage broke down more than five years ago], and recognized by the Court, would appear a creature of speculation. Fortunately for Mrs. Strack, the “record” revealed to Justice Muller that there were “instances of marital discord” occurring within the past five years, and thus, the Statute of Limitations defense was not available under “continuing course of conduct” rules. It remains that Justice Muller’s decision would hold that where spouses separated on consent more than five years ago, they may not be divorced in New York on no-fault grounds.

The purpose of the no-fault statute was to avoid the type of “record” required by Justice Muller. There is to be no proof of misconduct; indeed, there need not be any.

Third, Justice Muller ruled that the Legislature did not exempt irretrievable breakdown from the right to a jury in divorce grounds trials under D.R.L. §173, and did not “explicitly” abolish the right to a trial, itself, for a no-fault divorce. Thus, the Court held that Mrs. Strack’s verified statement that her marriage had broken down irretrievably for a period of at least six months was refutable:

The determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact.

However, the Legislature did “explicitly” state that a grounds trial was not necessary. Of all the divorce grounds contained in D.R.L. §170, only “irretrievable breakdown” is to be based only on the sworn statement of one party. Even Justice Muller recognized that the ground is purely subjective:

This Court does hold, however, that whether a marriage is so broken that it is irretrievable need not necessarily be so viewed by both parties. Accordingly, the fact finder may conclude that a marriage is broken down irretrievably even though one of the parties continues to believe that the breakdown is not irretrievable and/or that there is still some possibility of reconciliation.

Thus, what is it that the fact-finder, whether it be judge or jury, is to determine?

  • Whether the party really believes the marriage is irretrievably broken?
  • Whether the marriage is objectively irretrievably broken, even if one party believes it and the other party does not believe it?
  • Whether the breakdown occurred at least six months before the action was commenced?

None of that is required. If one party provides the Court with a sworn statement of irretrievable breakdown for more than six months, the divorce should be granted.