Domestic
litigation is a part of American life. Almost everyone has been directly
or indirectly involved in divorce, custody, or domestic violence proceedings.
This site has been designed to make the lawyer and the non-lawyer more knowledgeable
about New York Divorce and Family law, and less vulnerable to misinformation.
Joel R. Brandes
New York Divorce and Family Law™
is owned and published
by Joel R. Brandes Consulting Services,
Inc.
Joel R.
Brandes,
the President of
Joel R. Brandes Consulting Services, Inc.
is the author of the
"Law and the Family New York 2d"
(9 volumes),
and "Law and the Family
New York Forms"(4 volumes) .
If you can not find the
information you are looking for on New York Divorce and Family Law™you
can purchase either of these sets directly from the publisher,
Thomson-West. For
more information, click on any of the links below.
Description: This set is both a treatise
and a procedural guide. The usual family law issues are covered such as
Formation of the Family Unit, Divorce, Judicial Separation, and
Annulments. It presents such vital practical considerations as counsel
fees to prosecute or defend an appeal. The text analyzes statutes,
discusses cases, and includes authors' notes which present hints,
practice pointers, and pitfalls to avoid. It also features a complete
discussion of appellate practice and offers step-by-step guidance on how
to handle an appeal in each of the state's judicial departments.
Research aids annotate the text.
Description. This set provides you with
practitioner-tested forms for a wide variety of family law matters. It
includes forms relating to the creation of the marriage relationship,
the attorney-client relationship, matrimonial agreements, and
matrimonial litigation. Specific topics covered include antenuptial
agreements, separation agreements, modification agreements, and matters
relating to infants and incompetents, and service of process.
Joel R. Brandes Consulting Services, Inc. is
not a law firm and does not give legal advice. We only work for attorneys.
Attorneys can contact
us by email for a
Free Consultation
or by telephone
201-434-6614 or 954-564-9883.
More about our services.
New York Divorce and Family Law™
is presented as a public
service by
Joel R. Brandes Consulting Services, Inc.,
the ultimate source for
litigation support and paralegal services
for matrimonial and family law attorneys
throughout the United States.
Joel R. Brandes
Consulting Services, Inc.
is a Florida corporation. Its
office and principal place of business is in
Ft. Lauderdale, Florida.
It is located at 155 Washington Street,
Jersey City, New Jersey 07302, Telephone 201-434-6614, and 2881 NE 33rd
Court, Ft. Lauderdale, Florida 33306, Telephone 954-564-9883.
Notice:
The information on this site pertains
to New York law and is offered as a public service. It is not intended
to give legal advice about a specific legal problem. Due to the importance of the individual
facts of every case, the information on this site may not necessarily be
applicable to any particular case. Changes in the law could at any time
make parts of this web site obsolete. The information on this web site
was not
necessarily written by persons licensed to practice law in a particular
jurisdiction. The publisher is not engaged in rendering legal advice and
this publication is not intended to give legal advice about a specific
legal problem, nor is it a substitute for the advice of an attorney.
This information is provided with
the understanding that if legal advice is required the services of a competent
attorney should be sought.
Attorneys and Judges
may
Subscribe
to Bits and Bytes™
, our
free
electronic newsletter
published for attorneys and judges, as a
public service, which reports
on important new decisions and laws before they appear on our website.
Our electronic newsletter will be
sent to you by email twice a month, to keep you up to date on important
developments in New York Divorce and Family Law.
To subscribe click on this link to fill out a subscription
form or send an email containing
your name, office address, telephone number and email address to
subscribe@nysdivorce.com.
Your information
will be kept confidential in accordance with our
privacy
policy.
Click to Visit New York Divorce and
Family Law
Blog - Our blog supplements
the "Cases of the Week" and "News" Pages of our web site. We report important
New York Divorce and Family Law decisions which are reported on our web
site, as well as cases which are important, but due to size limitations,
are not reported on our web site. Where appropriate, our postings contain
editorial comment.
Our site contains the most comprehensive
and complete information available about Federal Court decisions construing
The Hague Convention on the Civil
Aspects of International Child Abduction and the International Child Abduction
Remedies Act.
We suggest you use our
Search Bar
at the top of each page
to obtain a list of every document on this site related to your search,
or you can try the New York Divorce
and Family Law Google Search bar below
to make your search easier.
Are you
looking to move to Manhattan? Do you need to downsize, upsize or resize? Equality living
can help you find the right apartment at the right price. With
exclusives, "no fee" rentals, and leases with one to three months free
rent, they can simplify your search for an apartment from the Upper West
Side to downtown Manhattan.
Contact
equalityliving@gmail.com.Include
all important information including name, contact information, size of
apartment, location and desired rent
Click to Visit New York Divorce and
Family Law
Blog - Our blog supplements
the "Cases of the Week and News Page" of our web site. We report important
New York Divorce and Family Law decisions which are reported on our web
site, as well as cases which are important, but due to size limitations,
are not reported on our web site. Where appropriate, our postings contain
editorial comment.
Cases of The Week and News
Laws of 2009, Ch 32, repealed
Family Court Act 516 Relating to Compromise
Agreements in Paternity Proceedings, effective May 19, 2009.
Court of Appeals Holds
Non-custodial Parent Does Not Retain Decision-making Authority
Pertaining to Education of Child Where Custodial Parent Granted
Exclusive Custody of the Child and Decree and Custody Order Are Silent
as to Right to Control Such Decisions.
In
Fuentes v Board of Educ.
of City of New York, --- NY3d
----, 2009 WL 1148636 (2009) Plaintiff Jesus Fuentes and his wife were
divorced in 1996. Family Court entered an order granting the wife
exclusive custody of the three children, including a son, M.F., who, due
to a genetic disorder, was legally blind. M.F. attended public school in
New York City and received special education services to accommodate his
disability. In 2000, plaintiff believed that M.F.'s special education
services and accommodations were inadequate and requested a
reevaluation. When the Committee on Special Education for the Hearing,
Handicapped, and Visually Impaired responded that M.F's services were
adequate, plaintiff requested a hearing from the Impartial Hearing
Office of the New York State Department of Education to review that
determination. In 2001, plaintiff's request for a hearing was denied
based on his status as the non-custodial parent of M.F. The Office
concluded that because plaintiff was not the "person in parental
relation" (Education Law 3212), he did not have the right to make
educational decisions pertaining to M.F. and, consequently, did not have
a right to request a hearing. Plaintiff then commenced an action in the
United States District Court, alleging, among other things, that he was
denied his right under the federal Individuals with Disabilities
Education Act (IDEA) to a hearing to review the determinations of the
Board of Education. After a dismissal, appeal, and remand on issues not
pertinent to the certified question, the district court dismissed
plaintiff's case for lack of standing under the IDEA. On appeal, the
United States Court of Appeals for the Second Circuit found that no
precedent from the Court of Appeals directly addressed the dispositive
issue and certified a question, which the Court of Appeals reformulated:
" Whether, under New York Law, the non-custodial parent of a child
retains decision-making authority pertaining to the education of the
child where (1) the custodial parent is granted exclusive custody of the
child and (2) the divorce decree and custody order are silent as to the
right to control such decisions. " As reformulated the certified
question was answered in the negative. The Court of Appeals noted that
it is well settled in the Appellate Division that, absent specific
provisions in a separation agreement, custody order, or divorce decree,
the custodial parent has sole decision-making authority with respect to
practically all aspects of the child's upbringing. It declined to
recognize an implied right of non-custodial parents to exercise
decision-making authority with respect to their child's education
notwithstanding the custody order's silence on this subject and
emphasized the importance of parties determining these issues at the
time of separation or divorce. The Court noted the distinction between a
non-custodial parent's right to "participate" in a child's education and
the right to "control" educational decisions. Generally, there is
nothing which prevents a non-custodial parent (even one without any
decision making authority) from requesting information about, keeping
apprised of, or otherwise remaining interested in the child's
educational progress. However, unless the custody order expressly
permits joint decision-making authority or designates particular
authority with respect to the child's education, a non-custodial parent
has no right to "control" such decisions. This authority properly
belongs to the custodial parent.
Not Necessary to Plead
Justification as Defense to Abandonment Where Not a Claim That Would Be
Likely to Take the Plaintiff by Surprise, and Does Not Raise Issues of
Fact Not Appearing on the Face of the Complaint
In
Gulati v Gulati,
60 A.D.3d 810, 876 N.Y.S.2d 430 (2 Dept 2009) the Appellate Division
pointed out that pursuant to DRL 170(2), an action for a divorce on the
ground of abandonment may be maintained when the defendant abandons the
plaintiff for a period of one or more years. To establish entitlement to
a divorce on this ground, a plaintiff must demonstrate that the
defendant unjustifiably and without the plaintiff's consent abandoned
the plaintiff for a period of one or more years. Here, the plaintiff
made a prima facie showing of her entitlement to summary judgment on the
ground of abandonment by submitting evidence that the defendant moved
out of the marital residence in April 2003 without her consent, and
without justification. In opposition, the defendant submitted
evidentiary proof sufficient to raise triable issues of fact as to
whether an abandonment occurred. The submissions raised issues of fact
as to whether the plaintiff consented to his initial departure from the
marital residence and to his continued absence from the home, and
whether his actions were justified. Accordingly, plaintiff's motion for
summary judgment on her cause of action for a divorce based on
abandonment should have been denied. The Court rejected plaintiff's
contention that the defendant waived the right to argue that he was
justified in leaving and remaining away from the marital residence
because he did not plead justification as an affirmative defense in his
answer. Since abandonment cannot be established merely by evidence of a
separation, a plaintiff seeking a divorce on this ground has an
obligation to prove, as an element of his or her prima facie case, that
the defendant unjustifiably left and remained away from the marital
residence for a period of more than one year. Although the Court has
recognized that it is permissible to plead justification as an
affirmative defense (see Del Galdo v. Del Galdo, 51 A.D.2d 741, 379
N.Y.S.2d 479), it held that it is not necessary that it be so pleaded
where, as here, it is not a claim that would be likely to take the
plaintiff by surprise, and does not raise issues of fact not appearing
on the face of the complaint (see CPLR 3018[b] ). In this regard, the
Court noted that the plaintiff alleged in her complaint that the
defendant had abandoned the marital residence without cause or
provocation, and the defendant denied these allegations in his answer.
Under these circumstances, the defendant, who has not defaulted, should
not be precluded from arguing that he was justified in leaving and
remaining away from the marital residence.
Error to Permit "Licensed Mental Health
Counselor"To Offer Opinion Based in Part upon Interviews with Collateral
Sources Who Did Not Testify
In Matter of
Murphy v Woods,--- N.Y.S.2d ----, 2009
WL 1565164 (N.Y.A.D. 4 Dept.) the Appellate Division held that Family
Court erred in permitting a "licensed mental health counselor," who
examined the parties' child and was called as a witness by the mother,
to offer an opinion that was based in part upon his interviews with
collateral sources who did not testify at trial. There are two
exceptions to the general rule requiring that opinion evidence be based
on facts in the record or on facts personally known to the witness: if
the opinion is based upon out-of-court material "of a kind accepted in
the profession as reliable in forming a professional opinion or if it
comes from a witness subject to full cross-examination on the trial" (Hambsch
v. New York City Tr. Auth., 63 N.Y.2d 723, 726, 480 N.Y.S.2d 195, 469
N.E.2d 516). Neither exception applied in this case. At the fact-finding
hearing, the expert testified that material portions of his opinion were
based not only upon his interviews with the parties, but also were based
on his interviews with collateral sources. The Appellate Division was
unable to determine the extent to which the expert relied on those
collateral source interviews in forming his opinion. Furthermore, the
collateral sources did not testify at trial, and there was no evidence
establishing their reliability. The court could not conclude that the
admission of the expert's opinion was harmless error because, without
the admission of that opinion or the testimony of the collateral
sources, there was insufficient evidence in the record to support the
court's determination. It reversed the order and remitted the matter to
Family Court for a new hearing before a different adjudicator.
In
Mahoney-Buntzman v Buntzman,
--- N.Y.3d ----, 2009 WL 1227875 (2009)
the Court of Appeals held that payments
made to a former spouse and/or children of an earlier marriage, even if
made pursuant to court order, are not the type of liabilities entitled
to recoupment. In addition, it held that a student loan, which is both
incurred and fully paid for during marriage, is a marital obligation for
which responsibility is to be shared between the parties. It also held
that as a matter of public policy, a "party to litigation may not take a
position contrary to a position taken in an income tax return."
(Click here for expanded discussion)
In
Johnson v Chapin,
- N.Y3d -, 2009 WL 1227869 (2009) the Court of Appeals, in an opinion by
Judge Pigott, held that when a pendente lite award of maintenance is
found at trial to be excessive or inequitable, the Court may make an
appropriate adjustment in the equitable distribution award. However, it
rejected the husband's claim that he should be entitled to a credit for
excess child support payments pointing out that it has long been held
that there is a "strong public policy against restitution or recoupment
of support overpayments".
(Click here for
expanded discussion)
New Rules of Professional
Conduct (22 NYCRR Part 1200) Replace Existing Disciplinary Rules,
Effective April 1, 2009.
The New
Rules of Professional Conduct,
which are based on the American
Bar Association Model Rules of Professional Conduct, introduce a number
of important ethics changes for New York lawyers. They are intended to
ease ethical research and guidance by New York lawyers, and are in
addition to the Rules in 22 NYCRR Parts 1210, 1215, 1230 and 1400. Some
of the rules impose new ethical obligations on New York lawyers. One
rule obligates a lawyer to act with reasonable diligence and promptness'
in representing a client (22 NYCRR Part 1200, Rule 1.3[a]). Another rule
requires a lawyer to keep the client reasonably informed about the
status of the matter, and to promptly comply with a client's reasonable
requests for information' (22 NYCRR Part 1200, Rule 1.4[a][3], [4]). In
some cases, the new rules liberalize a former New York rule. For example
one rule sets forth a lawyer's duty and obligation to a "prospective
client," including a client with whom the lawyer never enters into an
attorney-client relationship. It expressly exempts from the benefit of
the rule's protections potential clients who consult with a lawyer
merely for the purpose of disqualifying the lawyer from representing an
adverse party. Another rule allows attorneys to disclose confidential
information to advance the best interests of the client when it is
either reasonable under the circumstances or customary in the
professional community (22 NYCRR Part 1200, Rule 1.6(a)(2)).
An Article entitled Rules of Professional Conduct for Family Law
Attorneys, written by Joel R. Brandes, the author discusses the
rules that particularly effect New York Matrimonial and Family law
attorneys.
(Click here to download the Article )
Failure to Provide “Paper Trail”
Documenting Source of Money Used to Purchase Marital Residence Not Fatal
to Separate Property Claim. Court Did Not Violate DRL 248 by Ordering
That Maintenance Would Terminate in the Event That Wife Resided with an
Unrelated Adult Male for More than 30 Days
In
Juhasz v Juhasz,
--- N.Y.S.2d ----, 2009 WL 281303 (N.Y.A.D. 4 Dept.) the parties were
married in 1990 and had three minor children. The Appellate Division
held that Supreme Court properly determined that a brokerage account
with Julius Baer (JB account) was defendant's separate property inasmuch
as it was funded entirely from defendant's premarital sale of stock in a
family business. The court erred in failing to credit defendant for his
contribution of separate property toward the purchase of the marital
residence. A spouse is entitled to a credit for his or her contribution
of separate property toward the purchase of the marital residence,
including any contributions that are directly traceable to separate
property. Before the marriage, defendant purchased a home for $240,000
with funds that he derived from his sale of the stock. During the
marriage, defendant contributed $200,000 from the JB account to purchase
a vacation home for approximately $450,000, and he secured a mortgage
for the balance. That mortgage was also paid with funds from the JB
account. The parties subsequently sold both homes and purchased the
marital residence for $216,000. The Appellate Division concluded that
defendant was entitled to a credit of $216,000 for his contribution of
separate property to purchase the marital residence, and modified the
amended judgment accordingly. While defendant did not provide a paper
trail documenting the source of the money used to purchase the marital
residence, nothing in either party's testimony suggested that any other
possible source for the money existed. In view of its determination
concerning defendant's entitlement to a credit for separate property
with respect to the marital residence, the Appellate Division rejected
the contention of plaintiff on her cross appeal that she should have
been awarded title to the marital residence as a matter of equity. It
also rejected defendants contention that he was entitled to a credit for
separate property that he contributed for renovations to the marital
residence. Although the marital residence was appraised for $420,000
four months prior to the trial, defendant failed to establish that the
separate property funds spent on renovations added value to the
residence apart from the appreciation in value resulting from market
forces over the period of ownership and, if so, the amount by which the
value of the property was increased. It also held that Supreme Court
properly imputed income to defendant of $180,000 per year. The record
established that defendant derived substantial income from his
investments. The amount awarded for child support was vacated because
the court failed to articulate any basis for that portion of the award
based on the parental income exceeding $80,000. It modified the amended
judgment by vacating that amount, and remitted the matter to Supreme
Court to determine defendant's child support obligation in compliance
with the Child Support Standards Act. It concluded that the court
properly ordered defendant to continue to pay for the private school
education of the children. It also rejected the contention of plaintiff
on her cross appeal that the court violated Domestic Relations Law 248
by ordering that maintenance would terminate in the event that she
resided with an unrelated adult male for more than 30 days. That
section, entitled "Modification of judgment or order in action for
divorce or annulment," provides in relevant part that a husband may
apply for modification of a judgment of divorce if the wife remarries or
if she is "habitually living with another man and holding herself out as
his wife, although not married to such man." The court held that here it
was concerned with an initial award of maintenance and not an
application to modify an existing judgment or order. Inasmuch as courts
have the discretionary power to "fashion a fair and equitable
maintenance award" it concluded under the circumstances of this case
that the condition imposed by the court is not improper (cf. Florio v.
Florio, 25 AD3d 947, 950).
Misrepresentation That Husband
Was Biological Father Did Not Constitute "Egregious Fault"
In
Howard S. v. Lillian S.,
--- N.Y.S.2d ----, 2009 WL 674133 (N.Y.A.D. 1 Dept.) the Appellate
Division, in an opinion by Justice Freedman, held that defendant-wife's
alleged misrepresentation to her husband that he was the biological
father of one of their children, when in fact the child was conceived
during her adultery and fathered by her lover, did not constitute
"egregious fault" sufficient to be considered in equitably distributing
the marital property. According to the verified complaint plaintiff
married defendant in May 1997 and they had four children. In February
2004, defendant had an extramarital affair with an unnamed man and
became pregnant with a child, Charles, who was born in December 2004.
Plaintiff contended that defendant knew or should have known that
plaintiff was not Charles's biological father, but concealed that
information from him. Plaintiff stated that he "raised Charles as his
own child, nurturing him and providing the same financial and emotional
support as all his other children." The complaint alleged that in
February 2007 defendant began another affair with the named
co-respondent which "continues to this day." Defendant also concealed
this second adulterous relationship from plaintiff, but in the spring of
2007, she suggested that they separate and enter into a collaborative
law process. During this period plaintiff had become suspicious about
Charles's parentage, allegedly "due to all the jokes within his and
[defendant's] circle of family and friends that Charles looked nothing
like him." Without telling his wife, plaintiff in February 2008 arranged
for a DNA test of himself and Charles. The test confirmed that plaintiff
was not Charles's biological father. Defendant acknowledged that
plaintiff was not Charles's biological father, but claimed that she
learned this from the DNA test results and denied that she deliberately
concealed the truth about Charles's parentage from plaintiff. The
complaint asserted causes of action for divorce based on both cruel and
inhuman treatment and adultery, and asserts a separate claim based on
fraud. As damages for the fraud claim, plaintiff sought to recover his
child support expenses for Charles, the fees for the parties'
collaborative law process, and profits from the couple's investments
"from the time of Charles's conception until the commencement of this
action." Defendant answered and counterclaimed for divorce on the ground
of abandonment. Defendant moved for an order dismissing or severing the
fraud claim; plaintiff cross-moved for "expanded discovery" to prove
"defendant's egregious fault," the fraud claim, and her lack of
contribution to and dissipation of the marital property. The motion
court denied the motion to dismiss or sever the fraud claim, but limited
the recoverable damages to plaintiff's share of the fees for the
collaborative law process. The court also denied plaintiff's cross
motion for expanded discovery as to defendant's marital fault on the
ground that defendant's alleged misconduct did not constitute egregious
fault and had no bearing on prospective spousal maintenance and
equitable distribution.
The Appellate Division pointed out that marital fault may be considered
pursuant to clause(d)(13) of DRL 236 (B)(5), the "catchall" provision
that allows the court to take "anyother factor" which may be "just and
proper" into account. Marital fault can only be considered where the
misconduct "is so egregious or uncivilized as to bespeak of a blatant
disregard of the marital relationship-misconduct that shocks the
conscience' of the court, thereby compelling it to invoke its equitable
power to do justice between the parties. In Havell v. Islam, 301 A.D.2d
339, 344 [2002], the Court adopted the analysis set forth in McCann v.
McCann (156 Misc.2d 540 [1993] ), and concluded that to be deemed
egregious, the conduct must callously imperil the value our society
places on human life and the integrity of the human body. It noted that
the only cases in which reprehensible behavior has been deemed to
constitute egregious fault sufficient to affect equitable distribution
have involved extreme violence. It noted that egregious fault had also
been found in instances of rape, and protracted and severe physical
abuse. Conversely, conduct that courts have found not to be egregious
include adultery, alcoholism, abandonment , and verbal harassment
coupled with several acts of minor domestic violence. Here, defendant's
alleged misconduct did not rise to the level of egregious fault, since
defendant neither endangered the lives or physical well-being of family
members, nor deliberately embarked on a course designed to inflict
extreme emotional or physical abuse upon them. The court held that given
the absence of egregious fault, the motion court correctly precluded any
disclosure in connection withdefendant's marital fault. Justice Nardelli
dissented in an opinion.
Second Department Disagrees With First Department Holding No
Appeal lies from Maintenance and Property Distribution Granted on
Default in Appearing for Trial.
In
Sarlo-Pinzur v Pinzur, ---
N.Y.S.2d ----, 2009 WL 387201 (N.Y.A.D. 2 Dept.) Supreme granted the
husband's attorney's motion to withdraw as counsel and refused to
adjourn the trial further following counsel's withdrawal. Upon his
subsequent default in appearing at the trial able distribution, Supreme
Court awarded the wife maintenance of $500 per month for four years and
equitably distributed the marital property. The Appellate Division
dismissed the appeal from the judgment, except insofar as it brought up
for review the granting of the husband's attorney's motion to withdraw
as counsel and the denying of the husband's request to adjourn the
trial, in effect, pursuant to CPLR 321(c). It held that the judgment
from which the husband appealed was entered on default, since he left
the courtroom as the trial commenced. Although no appeal lies from a
judgment entered on the default of the appealing party (CPLR 5511), an
appeal from such a judgment does bring up for review those 'matters
which were the subject of contest' before the Supreme Court. Here, those
matters consisted of the granting of the motion of the husband's
attorney to withdraw as counsel and the Supreme Court's denying of the
husband's request to adjourn the trial, in effect, pursuant to CPLR
321(c). It pointed out that as a general rule, CPLR 321(c) requires that
there be a 30-day stay of all proceedings after counsel is permitted to
withdraw over the client's objection. Where, however, the attorney's
withdrawal is caused by a voluntary act of the client, the court has the
discretion to permit the matter to proceed without such a stay. The
husband's counsel moved for leave to withdraw on the ground that the
husband had refused to provide financial information necessary to the
trial of the case. The motion was properly granted on the basis of the
husband's failure to cooperate with his counsel. Supreme Court
providently exercised its discretion in refusing to adjourn the trial
further.
COMMENT: In Warner v Houghton, 43
A.D.3d 376, 841 N.Y.S.2d 499 (1st Dept., 2007), affirmed 10 N.Y.3d 913,
862 N.Y.S.2d 321 (2009) defendant did not appear at a compliance
conference and the matter was set down for an inquest on the issue of
equitable distribution. After the inquest, at which he did not appear,
the court granted a divorce, and made awards concerning the request for
equitable distribution and counsel fees. The Appellate Division held
that while the issue of whether the divorce was properly granted may not
be reviewable, the distribution award was a separate issue, and was
still subject to review, even after a default. It found that the
defendant was improperly precluded and modified the awards. On review of
submissions pursuant to 22 NYCRR 500.11 the Court of Appeals held that
CPLR 5511 does not bar review of the equitable distribution components
of a divorce judgment where, as here, defendant was improperly precluded
from contesting the awards. It held that the Appellate Division did not
abuse its discretion as a matter of law in vacating Supreme Courts
preclusion order.
Failure to Recoup Value from Unprofitable
Business Operated During Marriage Constitutes Wasteful Dissipation of
That Asset
In Scala v
Scala, --- N.Y.S.2d ----, 2009 WL
281681 (N.Y.A.D. 4 Dept.) Plaintiff appealed from a judgment of divorce
that confirmed the report of the Matrimonial Referee appointed to hear
and report and ordered plaintiff husband to pay maintenance to defendant
wife. Plaintiff contended that the Referee erred in precluding him from
testifying concerning the nature of his alleged physical injuries based
on his willful failure to furnish requested medical authorizations. The
Appellate Division rejected that contention, and concluded under the
facts and circumstances of this case that the Referee neither abused nor
improvidently exercised his discretion in precluding that testimony.
Plaintiff further contended that Supreme Court erred in confirming the
Referee's report both to the extent that the Referee found that the
closure by plaintiff of his masonry business constituted a wasteful
dissipation of assets and to the extent that the Referee valued the
business. With respect to wasteful dissipation, the Court pointed out
that it had previously stated that the failure to recoup value from an
unprofitable business operated during the marriage constitutes wasteful
dissipation of that asset (see Baker v. Baker [appeal No. 2], 199 A.D.2d
967, 968). Thus, it necessarily is a wasteful dissipation of assets to
fail to recoup the value of a profitable business, such as plaintiff's
masonry business. It also rejected the contention with respect to the
valuation of the masonry business. The determination of a fact-finder as
to the value of a business, if it is within the range of the testimony
presented, will not be disturbed on appeal where valuation of the
business rested primarily on the credibility of expert witnesses and
their valuation techniques. The Referee, whose report was adopted by the
court, credited the conclusion of defendant's expert with respect to the
value of the business, and plaintiff presented no expert testimony that
would support a different valuation. It agreed with plaintiff, however,
that the court erred in awarding nondurational maintenance to defendant.
Based on the statutory factors, including the parties' respective ages
and financial circumstances, it concluded that defendant was entitled to
maintenance for 12 years from the date of the judgment.
Nontitled Party Seeking a Distributive
Share of Enhanced Earnings Resulting from Law Degree and License must
Demonstrate That They Made a Substantial Contribution to the Titled
Party's Acquisition of That Marital Asset
In Kriftcher
v Kriftcher, --- N.Y.S.2d ----, 2009 WL
262707 (N.Y.A.D. 2 Dept.) Supreme Court awarded the plaintiff wife
$828,699.20 as her 40% share of the husbands enhanced earning capacity,
an attorney's fee of $30,000, declined to award her maintenance, awarded
her $1,229.71 per week in child support, and failed to award her
equitable distribution of the husband's bonus for the calendar year
2005, which the husband received in 2006. The Appellate Division found
that Supreme Court correctly concluded that the enhanced earnings
resulting from the law degree and license obtained by the husband during
the marriage were marital property subject to equitable distribution.
Nevertheless, it is incumbent upon the nontitled party seeking a
distributive share of such assets to demonstrate that they made a
substantial contribution to the titled party's acquisition of that
marital asset and where only modest contributions are made by the
nontitled spouse toward the other spouse's attainment of a degree or
professional license, and the attainment is more directly the result of
the titled spouse's own ability, tenacity, perseverance and hard work,
it is appropriate for courts to limit the distributed amount of that
enhanced earning capacity. Here, the wife's minimal contributions to the
husband's obtaining of his degree and license entitled her to a share of
only 10% in the enhanced earnings that have resulted. Supreme Court also
erred in failing to distribute the husband's bonus for the calendar year
2005, which he received in March 2006 and was in the gross sum of
$360,000. Based upon the unrebutted testimony of the forensic expert,
the husband's effective income tax rate was 38.25%, and, therefore, the
net amount of the husband's bonus was the sum of $222,300. Since the
divorce action was commenced on June 28, 2005, the marital portion of
that asset was 50% of its net value, or $111,150. Considering all of the
statutory factors the wife's equitable share of that marital asset was
fixed at 50%, or $55,575. In determining the appropriate amount and
duration of maintenance, the court is required to consider, among other
factors, the standard of living of the parties during the marriage and
the present and future earning capacity of both parties . (Haines v.
Haines, 44 A.D.3d 901, 902, 845 N.Y.S.2d 77). Although the wife earned a
teaching license during the course of the marriage, she was, at present,
primarily a homemaker, who worked only part-time as a substitute teacher
earning approximately $10,000 per year. In sharp contrast, the husband
was an attorney making approximately $500,000 per year. It held that a
maintenance award of $1,000 per week for 10 years was appropriate.
Click to Visit New York Divorce and
Family Law
Blog - Our blog supplements
the "Cases of the Week and News Page" of our web site. We report important
New York Divorce and Family Law decisions which are reported on our web
site, as well as cases which are important, but due to size limitations,
are not reported on our web site. Where appropriate, our postings contain
editorial comment.
New and Recent International Child Abduction Cases
A "Protocol for Emergency
Applications", designed to facilitate applications for Emergency
Applications outside of regular court hours in the evening and on
weekends and holidays when the courthouse is closed, was issued by the
Chief Administrative judge. It establishes the central phone number
and e-mail address listed
above for attorneys to use in the event of an emergency. According to
the protocol, staff members from the Division of Technology will pass on
the requests to the administrative judge or a designated back-up, who
will arrange to have a judge hear the application.
Court of Appeals Revised 22 NYCRR
Part 500 (Court of Appeals Rules of Practice) effective November
5, 2008
Rules of the Chief Judge Adopted
to Define the Role of the Law Guardian.
The rule defines 'Attorney for the child' as
a law guardian appointed by the family court pursuant to section 249 of
the Family Court Act, or by the supreme court or a surrogate's court in
a proceeding over which the family court might have exercised jurisdiction
had such action or proceeding been commenced in family court or referred
thereto. [7.2 (a)] The attorney for the child is subject to the ethical
requirements applicable to all lawyers, including but not limited to constraints
on: ex parte communication; disclosure of client confidences and attorney
work product; conflicts of interest; and becoming a witness in the litigation.
[7.2 (b)] In juvenile delinquency and person in need of supervision proceedings,
where the child is the respondent, the attorney for the child must zealously
defend the child.[ 7.2 (c)] In other types of proceedings, where the child
is the subject, the attorney for the child must zealously advocate the child's
position. In ascertaining the child's position, the attorney for the child
must consult with and advise the child to the extent of and in a manner
consistent with the child's capacities, and have a thorough knowledge of
the child's circumstances. If the child is capable of knowing, voluntary
and considered judgment, the attorney for the child should be directed by
the wishes of the child, even if the attorney for the child believes that
what the child wants is not in the child's best interests. The attorney
should explain fully the options available to the child, and may recommend
to the child a course of action that in the attorney's view would best promote
the child's interests. When the attorney for the child is convinced either
that the child lacks the capacity for knowing, voluntary and considered
judgment, or that following the child's wishes is likely to result in a
substantial risk of imminent, serious harm to the child, the attorney for
the child would be justified in advocating a position that is contrary to
the child's wishes. In these circumstances, the attorney for the child must
inform the court of the child's articulated wishes if the child wants the
attorney to do so, notwithstanding the attorney's position. [7.2 (d)]
The
New York Court of Appeals and the Appellate Divisions all have their own
websites. All of the Court sites can be accessed
from this web site
Experts are people who know a great
deal about very little and who go along learning more and more abut less
and less until they know practically everything about nothing. Lawyers,
on the other hand are people who know very little about many things and
keep learning less and less about more and more until they know practically
nothing about everything.
Judges are people who start out knowing
everything about everything but end up knowing nothing about everything
because of their constant association with experts and lawyers.
Click to Visit New York Divorce and
Family Law
Blog - Our blog supplements
the "Cases of the Week and News Page" of our web site. We report important
New York Divorce and Family Law decisions which are reported on our web
site, as well as cases which are important, but due to size limitations,
are not reported on our web site. Where appropriate, our postings contain
editorial comment.
Notice:
The information on this site pertains
to New York law and is offered as a public service. It is not intended
to give legal advice about a specific legal problem. Due to the importance of the individual
facts of every case, the information on this site may not necessarily be
applicable to any particular case. Changes in the law could at any time
make parts of this web site obsolete. The information on this web site
was not necessarily written by
persons licensed to practice law in a particular jurisdiction. The
publisher is not engaged in rendering legal advice and this publication
is not intended to give legal advice about a specific legal problem, nor
is it a substitute for the advice of an attorney.
This information is provided with
the understanding that if legal advice is required the services of a competent
attorney should be sought.
Our web site has many links to web
sites of other organizations, including, but not limited to court systems,
publishers of legal information, agencies, educational institutions, profit
making companies and non-profit associations. While we offer these electronic
links for your convenience in accessing New York Divorce and Family Law
related information, please be aware that when you exit our web site, the
privacy policy stated on our web site may not be the same as that on other
web sites. In addition, we cannot attest to the accuracy of the information
provided by linked sites. Linking to a web site does not constitute an endorsement
by us of the information presented on the linked site or the products that
may be sold on the linked site.
Potential clients of any law
firm listed on this site are advised to read the
Statement of Clients Rights and Responsibilities,
which New York matrimonial attorneys are required to provide to them at
the initial consultation.
(This web site may be considered Attorney Advertising
by New York Court rules)