|
[ Home | News | Feedback
| Search ]
Tuesday, March 1, 2005
Bits and Bytes
™
Volume 1, Number 2
Welcome
to
Bits and Bytes™
, our monthly electronic newsletter published for attorneys registered with
New York Divorce and Family Law. This electronic newsletter will be sent to
you by email each a month to keep you up to date on important developments
in New York Divorce and Family Law. If you do not wish to receive it or are
receiving it in error,
please send an email to unsubscribe@nysdivorce.com,
with the words “unsubscribe” in the subject line.
Joel R. Brandes
rd
Joel R. Brandes Consulting Services, Inc., 155 Washington Street, Jersey
City, New Jersey, 201-434-6614, and 2881 NE 33 Court, Ft. Lauderdale,
Florida, 954-564-9883. Send mail to:
joel@nysdivorce.com.
Websites:
www.brandeslaw.com.
www.nysdivorce.com.
and
www.flsdivorce.com
.
2004 Court of Appeals Roundup Continued
In Kazel v Kazel, 3 N.Y.3d 331, 819 N.E.2d 1036, 786 N.Y.S.2d 420 (2004) the
Court of Appeals held that a judgment of divorce and qualified domestic
relations order (QDRO) awarding an interest in the husband's pension plan do
not automatically include preretirement death benefits available under the
plan. If the intent is to distribute such benefits, that should be
separately, and explicitly ,stated.
The parties 1991 divorce judgment distributed the marital property by, among
other things, dividing the husband's pension plan between the parties
pursuant to the equitable distribution formula established in Majauskas v
Majauskas (61 NY2d 481 [1984]). The matrimonial court entered a QDRO
directing that plaintiff wife begin to receive a fixed percentage of her
former husband's monthly allowance either at such time as he "has retired
from and is actually receiving a monthly allowance from his . . .Pension
Plan" or, at plaintiff's option, "after the earlier to occur of the first
date for payments allowed under the plan or after [he] reaches the earliest
retirement age under the Plan." The husband died in 2001 before reaching
retirement age, and never received any payments under the plan. Following
his death, plaintiff sought to share with decedent's widow in preretirement
death benefits payable under decedent's pension plan. Because the QDRO, by
its plain terms, granted plaintiff an interest only in decedent's retirement
annuity, and not in his death benefits, the plan administrator denied
plaintiff any share of those benefits. Plaintiff sought to modify or
supplement the QDRO to award her a share of such benefits. Supreme Court
denied her motion, concluding that plaintiff had failed to establish that
the intent of the underlying divorce decree had been to award her survivor
benefits. The Court of Appeals noted that Employee Retirement Income
Security Act of 1974 (29 USC 1001 et seq.) (ERISA) and the Internal Revenue
Code of 1986 (IRC) require all pension plans to provide survivor benefits to
a participant's surviving spouse (see ERISA [29 USC] 1055 [a]; Internal
Revenue Code [26 USC] 401 [a] [11]; 417). Pursuant to a divorce, however, a
QDRO can provide that a former spouse be treated as a surviving spouse--to
the exclusion of the actually surviving spouse if, as here, the decedent had
remarried--for purposes of ERISA and the joint and survivor rules of the IRC
(see ERISA [29 USC] 1056 [d] [3] [F]; Internal Revenue Code [26 USC] 401 [a]
[11]; 417, 414 [p] [5] [A]). Thus, a former spouse can overcome the right of
an actually surviving spouse to receive a survivor annuity only if
specifically awarded such benefits by the matrimonial court. Further, such
an award must be reflected in a QDRO, evidenced by clear language
designating the former spouse as the surviving spouse for purposes of the
survivor benefits. The QDRO must reflect the intent of the underlying
judgment of divorce, and must comply with its terms.
In Covington v Walker, 3 N.Y.3d 287, 819 N.E.2d 1025, 786 N.Y.S.2d 409
(2004) the Court of Appeals held that plaintiff's cause of action for
divorce on the ground of imprisonment pursuant to Domestic Relations Law 170
(3), brought 16 years after the commencement of defendant's confinement, was
not barred by the five-year statute of limitations as set forth in Domestic
Relations Law 210. The statute of limitations is measured from the date of
defendant's release from prison (see Domestic Relations Law 170 [3]
[providing that an action for divorce may be maintained on the ground of the
defendant's confinement in prison for a period of at least three consecutive
years]). The Court concluded, based on the legislative history, and public
policy, that the cause of action accrues on the date defendant completes his
third consecutive year of incarceration, but the statute of limitations does
not begin to run until the date he is released from prison. Thus,
plaintiff's divorce action was not time-barred.
On May 12, 1983, plaintiff wife and defendant husband were married. In 1985
defendant was convicted of murder and robbery and sentenced to a prison term
of 25 years to life. Defendant was incarcerated since the date of his
arrest. Plaintiff was convicted of the same crimes as defendant and was
incarcerated. On April 10, 2000, plaintiff commenced an action for divorce
on the ground that defendant has been confined for a period of three or more
consecutive years after their marriage ( Domestic Relations Law 170 [3]).
Plaintiff moved for summary judgment of divorce and in opposition, defendant
asserted defenses, including the five-year statute of limitations in
Domestic Relations Law 210. Supreme Court dismissed plaintiff's action on
summary judgment. The Appellate Division affirmed.
The Court of Appeals reversed. It held that a cause of action for divorce
based on the ground of imprisonment continues to arise anew for statute of
limitations purposes on each day the defendant spouse remains in prison for
"three or more consecutive years" until the defendant is released. The
purpose of the requirement that the defendant be incarcerated for three
years prior to the commencement of an action for divorce is to give the
convicted party an opportunity to obtain release from prison and to prevent
the "natural but sometimes too rash inclination to dissolve a marriage" upon
a spouse's conviction. Nothing in the legislative history suggests, however,
that Domestic Relations Law 170 (3) was intended to start the statute of
limitations running against the plaintiff spouse as early as possible so as
to create the potential for a spouse, who may have missed the five-year
window. The words "or more" in Domestic Relations Law 170 (3) suggest that
divorce actions based on imprisonment are actions involving recurring
injuries to the parties which implicate the continuous wrong doctrine. The
rule is based on the principle that continuous injuries create separate
causes of action barred only by the running of the statute of limitations
against each successive trespass. The repeated offenses are treated as
separate rights of action and the limitations period begins to run as to
each upon its commission. Under a continuous wrong or violation rule, where
a defendant spouse is incarcerated for a consecutive period exceeding three
years, each day of continued confinement beyond three years inflicts new
injury on the plaintiff spouse. Thus, although this ground for divorce
arises originally at the conclusion of the third consecutive year of a
defendant's incarceration, it continues to arise anew each day thereafter
until the defendant is released from prison. An action based on this
continuous wrong is barred only by the expiration of the five-year
limitations period measured from the date upon Which the defendant is
released from prison.
Procedure for Collecting Maintenance Clarified
In Matter of Balanoff v Niosi, __AD2d__, 2004 WL 3171130 (N.Y.A.D. 2
Dept.))the Second Department clarified the procedure for enforcing a
judgment against an award of maintenance. The respondent Niosi and his
former wife, Ditroia, were divorced pursuant to a judgment entered in the
Supreme Court, Suffolk County, which provided that Niosi would make
monthly maintenance payments to Ditroia. Upon Niosi's failure to make
these payments, the Supreme Court, Suffolk County, entered an income
execution for support directing Niosi's employer, the respondent
Prospective Computer to deduct the maintenance payments from Niosi's
income and to pay them over to Ditroia on a monthly basis. In July 2002,
the petitioner obtained a judgment against Ditroia on her default in
Supreme Court, Nassau County, for unpaid legal services. The petitioner
served the respondents, Niosi and Prospective Computer, with restraining
notices alleging that the respondents were in possession of property in
which the petitioner had an interest, ie., Ditroia's monthly maintenance
payments. When the respondents refused to pay the petitioner, he commenced
a proceeding to enforce the restraining notices in Supreme Court, Nassau
County, on notice to Ditroia. The Supreme Court held that the respondents
did not violate the restraining notices because their payment of Ditroia's
monthly maintenance was exempt from restraint pursuant to CPLR 5205(d)(3).
The court further stated that any determination of the extent to which the
maintenance was not exempt should be made by the court that issued the
award (i.e., the Supreme Court, Suffolk County). It dismissed the petition
and vacated the previously-issued restraining notices. The Appellate
Division affirmed. It held that the petitioner took the wrong initial
steps in his attempt to enforce his money judgment against Ditroia's award
of maintenance. Ditroia's burden to claim and prove her exemption would
not be triggered until the petitioner submits a proper application for an
installment payment order to reach the amount of Ditroia's maintenance in
excess of her reasonable requirements.
Under the CPLR an application for an installment payment order remains the
expedient for accessing exempt salary and wages. Reinforcing this
procedure, CPLR 5222(a) prohibits a judgment creditor from serving a
restraining notice upon the judgment debtor's employer where the property
sought to be restrained consists of wages or salary due or to become due
to the judgment debtor (see CPLR 5222[a]; Silbert v. Silbert, 25 A.D.2d
570). Such restraining notices are not given any binding effect. The
Second Department held that the same is true within the limited context of
the case. Maintenance is a form of "income" that is exempt, just like 90%
of a debtor's salary, and such clearly exempt income, when sought at its
source, can only be divested of its exempt status upon proper application
to a court for a determination of the judgment debtor's reasonable
requirements (see CPLR 5205[d] ). In order to reach Ditroia's maintenance,
the petitioner is required to make a motion for an installment payment
order in the action in which he recovered judgment against Ditroia in the
Supreme Court, Nassau County He must raise the issue of Ditroia's
reasonable requirements in his motion papers. Upon this motion, the
Supreme Court, Nassau County, must transfer the action to the Supreme
Court, Suffolk County (the matrimonial court) for a determination of
Ditroia's reasonable requirements pursuant to CPLR 5205(d)(3) In those
proceedings Ditroia bears the ultimate burden of establishing her
reasonable requirements and she may not continue to benefit from her
default. Once the Supreme Court, Suffolk County, determines the amount in
excess of Ditroia's reasonable requirements, the petitioner may also
secure an order against third parties, like the respondents, to access
payment of Ditroia's surplus maintenance at its source.
2
Trial Evidence Bits and Bytes
Valuation Methodology
Nasca v Nasca, AD2d , 754 NYS2d 502 (4th Dept.,2003) [Proper to value ring
based on 1987 appraisal which was not disputed]
Braun v Braun, 11 AD3d 423, 782 NYS2d 785 (2d Dept.,2004) [Proper to award
business to husband and house to wife where it was virtually impossible to
value the husbands business because he was not forthcoming with all the
necessary documents to make that evaluation.]
Cahen-Vorberger v Vorberger , 785 NYS2d 435 (1st Dept.,2004) [ Proper in
valuing husbands business interest at $9.75 million for courts expert to
formulate a fair indirect methodology because of inadequate documentation
from husband. Proper to value increase in value of business from zero
where defendant failed to offer evidence of its value at time of marriage
and did not deny that wife contributed to appreciation in value of this
separate property by being a homemaker and care giver.]
Spillman-Conklin v Conklin, 783 NYS2d 114 (3d Dept.,2004) [Proper to value
timeshare based on value listed in net worth statement and included in
proposed findings of fact. Proper to use purchase price, rather than
market price, to determine value of jewelry, where no other proof offered
by husband, leaving court free to credit wife’s testimony.]
Valuation Date Outside DRL 236[B][4] Parameters
Dashinaw v Dashinaw, 11 AD3d 732, 783 NYS2d 93 (3d Dept.,2004) [Proper to
use purchase price of the rental properties, rather than their fair market
value, in valuing husbands gift equity in them Proper to value certain
personalty as of date of purchase, rather than date of commencement or
trial, where only evidence was wife's testimony and no opposing proof from
husband about fair market value.]
Preclusion For Failure to Disclose
Berk v Berk, 5 AD3d 165, 773 NYS2d 53 (1st Dept., 2004) [Proper for trial
court to preclude husband from offering evidence on financial issues
considering that he repeatedly violated orders, his persistent refusal to
provide financial disclosure, his failure to pay his share of the fee for
the neutral appraiser and his failure to appear for his deposition and a
court appearance.]
Cahen-Vorberger v Vorberger , 785 NYS2d 435 (1st Dept.,2004) [Preclusion
order and default judgment was supported by ample evidence of husbands
contumacious failure to provide disclosure.]
Proof of Separate Property
Kenney v Lureman, 778 NYS2d 821 (4th Dept.,2004) [Wife sustained her
burden of establishing that stockholdings were her separate property based
upon her uncontroverted testimony that she either inherited them or
purchased them with inherited funds]
Chiotti v Chiotti, 785 NYS2d 157 (3d Dept.,2004) [Inability to produce a
complete paper trail from a gift or inheritance does not require a
contrary finding where not evidence suggesting other possible sources of
the funds and no contradictory evidence offered.]
Admissibility of Expert Opinion
Matter of D’Esposito v Kepler, 88 N.Y.S.2d 169, (2d Dept,2005) [Family
Court improvidently exercised its discretion in admitting into evidence
the report of the neutral forensic psychologist, since the report was not
submitted under oath (citing 22 NYCRR 202.16[g][2] ) and relied on
information other than that upon which an expert may properly base an
opinion. Nevertheless, even without considering the experts report and
testimony, it found that Family Court providently
3
exercised its discretion in requiring that the residence of the subject
child, who had been relocated by the appellant to California, be returned
to New York by the mother
Jemmott v Lazofsky, 5 A.D.3d 558, 772 N.Y.S.2d 840) (2d Dept., 2004) ["It
is well settled that, to be admissible, opinion evidence must be based on
one of the following: first, personal knowledge of the facts upon which
the opinion rests; second, where the expert does not have personal
knowledge of the facts upon which the opinion rests, the opinion may be
based upon facts and material in evidence, real or testimonial; third,
material not in evidence provided that the out-of-court material is
derived from a witness subject to full cross-examination; and fourth,
material not in evidence provided the out-of-court material is accompanied
by evidence establishing its reliability".]
Wagman v. Bradshaw, 292 A.D.2d 84, 86-87, 739 N.Y.S.2d 421. [The Court of
Appeals has held that an expert witness may testify that he or she relied
upon specific, inadmissible out-of-court material to formulate an opinion,
provided (1) it is of a kind accepted in the profession as reliable as a
basis in forming a professional opinion, and (2) there is evidence
presented establishing the reliability of the out-of-court material
referred to by the witness (see, Hambsch v. New York City Tr. Auth., 63
N.Y.2d 723, 480 N.Y.S.2d 195, 469 N.E.2d 516). While the expert witness's
testimony of reliance upon out-of-court material to form an opinion may be
received in evidence, provided there is proof of reliability, testimony as
to the express contents of the out-of-court material is inadmissible.
Expert opinion, based on unreliable secondary evidence, is nothing more
than conjecture. Admission into evidence of a written report prepared by a
non-testifying person would violate the rule against hearsay and the best
evidence rule. Inasmuch as such a written report is inadmissible, logic
dictates that testimony as to its contents is also barred from admission
into evidence.
rd
Published monthly by Joel R. Brandes Consulting Services, Inc., 155
Washington Street, Jersey City, New Jersey, 201-434-6614, and 2881 NE 33
Court, Ft. Lauderdale, Florida, 954-564-9883. Send mail to:
joel@nysdivorce.com.
Websites:
www.brandeslaw.com.
www.nysdivorce.com.
and
www.flsdivorce.com
. Notice: The information in this publication pertains to New York law
only and is offered as a public service. It is not intended to give legal
advice about a specific legal problem, nor does it create an
attorney-client relationship. Due to the importance of the individual
facts of every case, the generalizations we make may not necessarily be
applicable to any particular case. This information is provided with the
understanding that if legal advice is required the services of a competent
attorney should be sought. Copyright © 2005 New York Divorce and Family
Law and Joel R. Brandes Consulting Services, Inc., All Rights Reserved.
4
|
