In Sanjuan v Sanjuan, --- N.Y.S.2d ----, 2009 WL 4981840 (N.Y.A.D. 2 Dept.) the plaintiff mother and the defendant father were married in the Philippines, and their daughter was born there. They emigrated to the United States and lived together from August 2005 until late June 2007, when the father took the child back to the Philippines. On July 24, 2008, the father filed a petition in the Philippines Regional Trial Court to annul the marriage and for custody of the child. The next day, the mother filed a summons with notice in the Supreme Court for a divorce and ancillary relief, seeking custody of the child. The father moved to dismiss, for lack of subject matter jurisdiction, so much of the complaint as sought custody of the child, and the court granted the motion. The Appellate Division held that Supreme Court correctly adhered to the original determination upon granting reargument. At the time the proceeding was commenced in the Philippines, the child's "home state" was the Philippines, as she had been living there with the father for a period of approximately 13 months (DRL 75-a[7], 76[1][a] ). By taking the child to the Philippines, the father did not engage in "unjustifiable conduct" such that the Philippines should have declined jurisdiction (DRL 76-g[1] ). There was no custody order that prevented the father from taking the child to the Philippines. While the mother initially indicated to the Supreme Court that she had no knowledge of their whereabouts, she later stated that several days after the father left with the child, she learned that they were in the Philippines, and the mother's family visited with the child there on several occasions. Since the mother knew of the child's whereabouts, and there was no existing custody order in place preventing the father from taking the child to the Philippines, the father's conduct was not unjustifiable. Even if the father's conduct had been unjustifiable, the mother acquiesced to the jurisdiction of the Philippines (DRL 76-g[1][a] ). According to the mother, she filed a summons with notice about a month after the father left for the Philippines, but that action "expired" because she was unsuccessful in effecting service. The mother did not recommence her action until almost one year later. By waiting, the mother acquiesced to the jurisdiction of the Philippines.

In Matter of Blauman-Spindler v Bauman,--- N.Y.S.2d ----, 2009 WL 4985472 (N.Y.A.D. 2 Dept.) the Appellate Division held that contrary to the father's contention, there is no requirement that a movant identify a specific statute or rule in the notice of motion, only that the notice "specify ... the relief demanded and the grounds therefor" (CPLR 2214 [a] ). Even though the mother's notice of motion and supporting affirmation did not formally and specifically request relief pursuant to CPLR 3126, where, as here, there is no misunderstanding or prejudice, "a court may grant relief that is warranted by the facts plainly appearing on the papers on both sides". Here, the mother's notice of motion clearly sought the relief of preclusion based upon the father's alleged willful failure to respond to her discovery demands. Accordingly, because the father was adequately apprised of the relief sought and the grounds therefor, there was no prejudice, and the Support Magistrate did not err in treating the motion as one made pursuant to CPLR 3126. Nevertheless, the Support Magistrate improvidently exercised her discretion in granting that branch of the mother's motion which was to preclude evidence of the father's finances. While the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court in order "[t]o invoke the drastic remedy" of preclusion for failure to disclose pursuant to CPLR 3126(2), the court "must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious". The father served responses and objections to the mother's discovery demands. While the mother was clearly dissatisfied with the objections and responses to her demands, there was no showing of a pattern of willful failure to respond to discovery demands or comply with disclosure orders, so as to justify an order of preclusion. Moreover, the mother's motion was unsupported by an affirmation of a good faith effort to resolve the purported discovery dispute as required by 22 NYCRR 202.7(a)(2) .

In Matter of Gregory v Gregory, --- N.Y.S.2d ----, 2009 WL 4447898 (N.Y.A.D. 2 Dept) the parents physically separated and the mother retained custody of the children. At some unspecified time, the parents agreed that the father would have primary custody of their two sons, and the mother would have primary custody of their daughter. Although there was no written agreement or court order concerning child support, the father claimed that he and the mother agreed that each parent would support the child or children in her or his custody, respectively. Thereafter, the mother applied for and was awarded public assistance. The mother received public assistance from August 1, 2004, until May 31, 2007, of $26,830.67, of which $13,415.44 was attributable to the support of the parties' daughter, who was the child in her custody. In May 2007 the mother commenced a proceeding seeking child support for the parties' daughter. The Department of Social Services (DSS) intervened in the proceeding, seeking payment of child support from the father, which sum included the money it had paid to the mother on behalf of the parties' daughter. After a hearing, the Support Magistrate calculated the father's support obligation for his daughter for the period to be $26,006.26, and directed him to pay that amount to the DSS. The Appellate Division held that Family Court's directive that the father pay the DSS the sum of $26,006.26 was proper. Since the support obligation of a parent of a child receiving public assistance is measured by the child's needs and the parent's means, not by the amount of public assistance paid on behalf of the child, the Family Court acted properly in declining to limit the amount required to be paid by the father to the DSS to the child's share of the public assistance grant (Matter of Commissioner of Social Servs. v. Segarra, 78 N.Y.2d 220). Contrary to the father's contention, he was not entitled to offset alleged unpaid child support from the mother against the amount he owed to the DSS. During the relevant time period, there was no support obligation imposed upon the mother for the children who were in the custody of the father.

In Davis v Davis, ___AD3d ___,11/23/2009 NYLJ 17, (col. 3) (2d Dept 2009) the Second Department, in an opinion by Justice Dillon, held that the 'social abandonment' of a spouse may not qualify as 'abandonment' and provide a ground for the dissolution of marriage under Domestic Relations Law 170(2). The plaintiff, Novel Davis, commenced this action for a divorce against her husband. Shepherd Davis, by the filing of an amended summons with notice and a verified complaint alleging two causes of action, one asserting constructive abandonment under Domestic Relations Law s170(2). The complaint alleged that the husband refused to engage in social interaction with the wife by refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and the wife's birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife's belongings from the marital bedroom, and by otherwise ignoring her. The parties had been married for 41 years and resided at the same address. The husband filed a pre-answer motion pursuant to CPLR 3211(a) (7) to dismiss the constructive abandonment cause of action. The husband argued that the wife's factual allegations of 'social abandonment failed to state a cause of action for a divorce based on 'constructive abandonment. Supreme Court granted the husband's motion pursuant to CPLR 3211(a)(7) to dismiss the second cause of action for a divorce on the ground of social abandonment. The Appellate Division affirmed. Justice Dillon noted that Domestic Relations Law 170 sets forth six statutory grounds on which a spouse may seek to divorce another. The abandonment ground for divorce, set forth in Domestic Relations Law 170(2), provides that an action for a divorce may be maintained based upon '[t]he abandonment of the plaintiff by the defendant for a period of one or more years.' Abandonment was recognized as a statutory ground for divorce in the Domestic Relations Law in 1966 but had also been recognized in earlier statutes, CPA 1147 and 1156. The essence of abandonment is the refusal of one spouse to fulfill 'basic obligations springing from the marriage contract' (Schine v. Schine, 31 NY2d 113, 119; see Mirizio v. Mirizio, 242 NY 74, 81). A viable cause of action under Domestic Relations Law s170(2) has been recognized in three different factual forms. The first, not applicable here, involves a defendant spouse's actual physical departure from the marital residence that is unjustified, voluntary, without consent of the plaintiff spouse, and with the intention of the departing spouse not to return. The second, also not applicable here, exists when the defendant spouse locks the plaintiff spouse out of the marital residence, absent justification or consent. The third is based on 'constructive abandonment,' which has been routinely defined as the refusal by a defendant spouse to engage in sexual relations with the plaintiff spouse for one or more years prior to the commencement of the action, when such refusal is unjustified, willful, and continual, and despite repeated requests for the resumption of sexual relations. The Appellate Division found, that there is no cognizable cause of action for 'social abandonment' in New York, and that, consequently, the plaintiff's second cause of action was properly dismissed.

In Matter of Massey v Evans,--- N.Y.S.2d ----, 2009 WL 3153251 (N.Y.A.D. 4 Dept.) the Fourth Department, in an opinion by Justice Peradatto, held that a father’s basic military allowances for housing and subsistence (BAH and BAS), which he received as a member of the United States Army, constitute "income" for the purposes of calculating a parent's child support obligation.

In Howe v Howe, __AD3d___, 10/5/2009 NYLJ 17, (col. 3) the plaintiff became a New York City firefighter soon after the parties were married, and remained in that employment until approximately 16 months prior to the commencement of this action. He was disabled as a result of his service during the period immediately following September 11, 2001, and retired with a disability pension. The Supreme Court, reasoning that the plaintiff had failed to satisfy his burden of establishing the separate nature of the pension, found the entire pension to be a part of the marital estate and awarded the defendant 'her Majauskas' share (see Majauskas v. Majauskas, 61 NY2d 481, 490). The plaintiff argued that the lack of expert testimony or evidence in the record by which the nondisability portion of the pension can be distinguished from the disability portion was not fatal to his separate property claim, since that distinction can be made by the pension administrator in the same manner as it makes the familiar calculation of the marital pension share under Majauskas. The husband appealed from so much of the judgment as awarded the defendant her 'Majauskas' share of the plaintiff's entire New York City Fire Department pension and directed that the plaintiff pay (a) 100 percent of the unreimbursed medical expenses of the parties' children and 100 percent of the reasonable child care expenses incurred by the defendant while she is attending school until she begins receiving her equitable share of the pension, at which time the plaintiff shall pay 64 percent and the defendant 36 percent of those expenses, and (b) 100 percent of the private school tuition of the parties' middle child until the child graduates from that school. The wife cross appealed from that part of the judgment that awarded the plaintiff 100 percent of the remaining funds from his September 11th Victim Compensation Fund award. The Court noted that Pension benefits or vested rights to those benefits, except to the extent that they are earned or acquired before marriage or after the commencement of a matrimonial action, constitute marital property'. Thus, 'to the extent that the disability pension represents deferred compensation, it is subject to equitable distribution. However to the extent it represents compensation for personal injuries, that compensation is 'separate property' which is not subject to equitable distribution. The burden of distinguishing the marital property portion of a disability pension from the separate property portion has been placed on the recipient of the pension who is resisting equitable distribution. In other words, until the contrary is demonstrated, the presumption is that the entire disability pension is marital property ' (Palazzolo v. Palazzolo, 242 AD2d 688, 689). The Court pointed out that despite he clarity of the language by which it imposed this burden, its in the full and just distribution of the marital estate has tempered the harshness of its application where the evidence is weak but some other method of defining the disability portion of the pension is available. Justice Spolzino, writing the ground breaking opinion for the court, pointed out that in Palazzolo v. Palazzolo (242 AD2d at 689), the Court defined the methodology by which the disability and nondisability portions of a public employee's pension are defined by approving, as 'fundamentally sound,' the approach taken by the plaintiff's expert. That approach has three steps. First, the pensioner's hypothetical nondisability pension is determined by multiplying the pensioner's final average salary by the percentage of that salary to which the pensioner would likely have been entitled upon retirement had the disability not cut short his or her employment. Second, the coverture fraction is applied to determine the marital portion of the hypothetical nondisability pension. Third, the actual nondisability portion of the pension is determined by reducing the hypothetical nondisability pension by the percentage of the years of service that the pensioner actually served. Here, the record was insufficient for the court to make this calculation. While the factors necessary to employ the Palazzolo formula were not on the record here, however, they were necessarily known to the plan administrator when it calculated the plaintiff's disability pension. The administrator knew the terms of the plaintiff's pension plan, the plaintiff's final average salary, and the percentage of that salary by which the pension is determined. The Palazzolo calculation requires nothing more. The Court held that just as the Majauskas formula is routinely incorporated into a qualified domestic relations order to satisfy this requirement the Palazzolo formula can be incorporated as well. The Appellate Division, in an opinion by Justice Spolzino, held that despite the lack of evidence in the record by which the disability and nondisability portions of the husbands Fireman pension can be distinguished, the disability portion of the plaintiff's pension and, consequently, his separate property interest in that pension, could be determined by the appropriate pension administrator pursuant to a properly-drawn order. Therefore, it modified the judgment accordingly.

In addition to his disability pension, the plaintiff received an award from the September 11th Victim Compensation Fund as a result of injuries he suffered in the aftermath of that tragedy. The administrator of that fund specifically designated a portion of that award, in the amount of $127,571, as compensation for economic loss. The Supreme Court held that the economic component of the award constituted 'compensation for personal injuries' within the meaning of Domestic Relations Law 236(B) (1)(d)(2) and, on that basis, treated the award as the separate property of the plaintiff. The Appellate Division agreed with that determination, because, inter alia, the legislative history of the Equitable Distribution Law compelled it. The Second Department rejected the rule in the other departments that the economic component of a personal injury award is separate property, which is derived from the holding of the Appellate Division, Third Department, in Fleitz v. Fleitz (200 AD2d 874) and the decisions of the Appellate Division, First Department and the Appellate Division, Fourth Department, that have followed it (see Gann v.Gann, 233 AD2d 188; Solomon v. Solomon, 206 AD2d 971). Justice Spolzino wrote that while the logic of the Equitable Distribution Law suggests the conclusion that the economic portion of a personal injury award should be marital property, the legislative history compelled the contrary result. He pointed out that the exclusion from marital property of 'compensation for personal injuries' was not in the original equitable distribution proposal. As Professor Henry H. Foster, who was actively involved in drafting of the equitable distribution law, explains in his treatise, the '[e]xemption (2) in Domestic Relations Law 236(B) (1)(d) was added belatedly at the request of legislative counsel, shortly before the enactment of the Equitable Distribution Law' (3 Freed, Brandes and Weidman, Law and the Family New York, 2.6, at 69-70) and 'was accepted in order to obtain additional and important backing for the new law ' (Henry H. Foster, Commentary on Equitable Distribution, 26 NY Law Sch L Rev 1 [1981]; see also Henry H. Foster, Jr., and Doris Jonas Freed, Family Law, 32 Syracuse L Rev 335, 344-345). Professor Foster bemoans this compromise as 'highly questionable both as a matter of logic and in view of the [premise] behind the new law' (Foster, Commentary on Equitable Distribution, at 9), and concludes that 'it would have been better to separate items for mental pain and anguish from other items in compensation and to treat damages for loss of income and bills incurred as marital property' (Foster, at 10). Foster's analysis, however, recognizes that the statute's purpose was to exclude from marital property both the economic and the noneconomic portion of a personal injury award. Justice Spolzino concluded that the circumstances in which the intent of the Legislature may be gleaned from a commentary that is critical of the Legislature's action are rare. This, however, is such a case. Professor Foster was the author of the original bill, and the bill jacket establishes that he was active throughout the Legislature's consideration of the bill. His commentary criticizing the exclusion clearly implied that it encompasses the economic component of a personal injury award. His explanation of the manner in which the exclusion came to be included in the legislation, published shortly after the law's enactment, is compelling proof that the proponents of the bill reluctantly acquiesced in the inclusion of the provision, despite its inconsistency with what was otherwise the intent of the legislation. Since the legislative intent must control (see People v. Santi, 3 NY3d 234, 243), the inescapable conclusion was that the Supreme Court was correct in determining that the portion of the Victim Compensation award received by the plaintiff that constitutes compensation for economic loss during the marriage is the plaintiff's separate property.

In Irkho v Irkho, --- N.Y.S.2d ----, 2009 WL 3208729 , 2009 N.Y. Slip Op. 07256 (2d Dept 2009) the Appellate Division held that Family Court properly, in effect, denied the father's objections to the order of the Support Magistrate, which departed from the numerical guidelines of the Child Support Standards Act and directed him to pay 50% of the child's regular monthly expenses. It held that a hearing court is not bound to apply the statutory percentage established in Family Court Act 413(1)(c), but may determine the child support obligation through the application of the percentage set forth in Family Court Act 413(1)(c), the factors delineated in Family Court Act 413(1)(f), or a combination of both (see Matter of Cassano v. Cassano, 85 N.Y.2d 649, 628 N.Y.S.2d 10, 651 N.E.2d 878; Matter of Schmitt v. Berwitz, 228 A.D.2d 604, 605, 644 N.Y.S.2d 760). Family Court providently exercised its discretion in departing from the prescribed percentage.

In Thomas B v Lydia B.,--- N.Y.S.2d ----, 2009 WL 3127737 (N.Y.A.D. 1 Dept.) the First Department, in an opinion by Justice Sweeny, held that two parents may not, by written agreement, terminate the child support obligation because of the child's full-time employment, without a simultaneous showing of the economic independence of the child. Pursuant to a stipulation of settlement entered into as part of the parties' judgment of divorce, petitioner father was obligated to pay annual child support until the parties' child reached the age of 21 or was otherwise "emancipated." The stipulation defined emancipation as, inter alia, "the Child's engaging in fulltime employment; fulltime employment during a scheduled school recess or vacation period shall not, however, be deemed an emancipation event." Justice Sweeny wrote that although petitioner relied on the definition of emancipation in the separation agreement that he drafted to support his claim, the agreement purported to do exactly what is prohibited by public policy and case law. The parties cannot contract away the duty of child support. When children's rights are involved the contract yields to the welfare of the children' " (Pecora v. Cerillo, 207 A.D.2d 215, 218 [1995], quoting Maki v. Straub, 167 A.D.2d 589, 590 [1990]). The duty of a parent to support his or her child "shall not be eliminated or diminished by the terms of a separation agreement" (Pecora, at 218), nor can it be abrogated by contract (Cellamare, 36 AD3d at 906). Economic independence from the child's parents is not established by merely working a standard, full-time work week. It was clear, that although he was working 35 hours per week during the period of time in question, the child was not economically independent of his parents, and thus was not emancipated during that period of time. Petitioner sought termination of his child support obligations on the grounds of, inter alia, the child's "emancipation. Petitioner moved for summary judgment on the issue of emancipation. He argued that under the terms of the stipulation of settlement, the child became emancipated by reason of his full-time employment at a music store from July through December 2005. Respondent opposed the motion, arguing that during the time in question, the child was living in a halfway house as part of his treatment for substance abuse. His employment at the music store was one of the conditions of that treatment. She also argued that the child was not economically independent, as he received financial support from her in addition to her payment of 100% of his unreimbursed medical expenses. The Support Magistrate granted petitioner's motion, finding that the child's full-time employment as of July 2, 2005 was an emancipation event pursuant to the stipulation of settlement and directed a full refund of all child support.

The Appellate Division reversed. Justice Sweeney pointed out that a parent's duty to support his or her child to the age of 21 is a matter of fundamental public policy in this State and is currently embodied in statutory law. (Family Court Act 413[1][a]; see Matter of Roe v. Doe, 29 N.Y.2d 188, 192-193 [1971] ). The concept of parental financial responsibility has been expanded to include both parents and is found in 413 and Domestic Relations Law 240. Parental-child support obligations continue until the child attains the age of 21 (Family Court Act 413[1][a] ), unless the child is sooner emancipated. Emancipation of the child suspends or terminates this duty to support. He noted that McKinney’s Practice Commentaries for 413 summarize the case law defining emancipation in these terms: "Emancipation is also automatic when the child marries or enlists in the military service. A gainfully employed child who is  fully self-supporting and economically independent from the parents may also be deemed to be emancipated. Or the parties may provide for emancipation contingencies in a written agreement or stipulation" (emphasis added). Additionally, a child may self-emancipate prior to age 21 where he or she willingly abandons the parent. This implies that the child has become independent, that he or she has willfully abandoned the parent by refusing to abide by reasonable instructions or demands of the parent, and that such abandonment was not the result of actions on the part of the parent.  The Court stated that the issue of emancipation is significant because a finding of emancipation terminates the parental obligation of support. "[C]hildren are deemed emancipated if they attain economic independence through employment, entry into military service or marriage and, further, may be deemed constructively emancipated if, without cause, they withdraw from parental supervision and control" (Matter of Bogin v. Goodrich, 265 A.D.2d 779, 781 [1999] ). In determining whether this child was emancipated, the Court noted that all of the cases that have addressed this issue use the child's "economical independence" as the test (citing Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97[1993]; Matter of Fisher v. Fritzch, 35 AD3d 1146, 1148 [2006]; Matter of Reigada v. Rinker, 30 AD3d 716 [2006]; Matter of Holscher v. Holscher, 4 AD3d 629, [2004]; Matter of Bogin, 265 A.D.2d at 781). Thus, even where a child is working but still relies on a parent for significant economic support such as paying for utilities, food, car insurance, medical insurance and the like, the child cannot be considered economically independent, and thus is not emancipated. This is true even where the child is residing with neither of the parties, so long as the child is still dependent on one of the parties for a significant portion of his or her support. (Matter of Cellamare v. Lakeman (36 AD3d 906 [2007]), Moreover, the parties cannot contract away the duty of child support. The court found insufficient evidence in the record to support a finding that the child was economically independent of his parents as a result of his working 35 hours per week while living in a halfway house. The child's employment was one of the requirements of participation in the halfway house substance abuse program.

CSSA Cap on Combined Parental Income Raised to $130,000 effective January 31, 2010

Laws of 2009, Chapter 343 enacted the "child support modernization act" which amended  the provisions of the Child Support Standards Act to raise the cap on combined parental income to $130,000 effective January 31, 2010, and to provide for the adjustment of the $130,000 cap every two years to reflect changes in the Consumer Price Index. The child support percentages of payments that non-custodial parents are obligated to make toward child support remains the same. Domestic Relations Law 240 (1-b) (2) and Family Court Act 413 (1) (c) (2) were each amended to provide that the court shall multiply the combined parental income up to the amount set forth in Social Services Law 111-i, (2) (b). Social Services Law 111-i (2)(b) provides that the combined parental income amount to be reported in the child support standards chart and utilized in calculating orders of child support in accordance with Domestic Relations Law 240 (1-b) (2) and Family Court Act 413 (1) (c) (2) shall be one hundred thirty thousand dollars; and that beginning January 31, 2012 and every two years thereafter, the combined parental income amount shall increase by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars. These amendments take effect on January 31, 2010.

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