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Library of Recent Court of Appeals Decisions

 

• In Yunis v Yunis      NY2d   ,    NYS2d     (October 28, 1999) the Court of Appeals held that  pendente lite payments of the mortgages, taxes and insurance are not required by the statute to be considered temporary maintenance, and may be solely considered child support .  It directed trial courts to indicate in their decisions the amount of pendente lite payments made toward maintenance, child support and third parties (e.g., mortgage, taxes and insurance). The courts should also indicate how the third party payments are allocated as between maintenance 
  and child support, and the method of crediting these various payments in the calculation of the retroactive amount due for each category.

• In O'Shea v O'Shea,   NY2d     ,   NYS2d    (Text), decided April 29, 1999, the trial court, in making its award for counsel fees in this divorce action, included amounts for legal services that were rendered before the action was commenced, and for those rendered in connection with a counsel fee hearing. The Court of Appeals held that the trial court had discretion to do so. The appeal turned on the interpretation of Domestic Relations Law § 237(a). The husband argued that the statute left no room for the counsel fee awards at issue. The wife contended that it did. The Court agreed with the wife, indicating in a footnote that the same holds true for related professional-type expenses.  It concluded that courts have the discretion, in appropriate cases, to grant such awards, based on criteria that include the circumstances of the parties and the reasonableness of their positions. Given the statutory background and the unswerving direction of the decisional law over the last century and a half, the Court also held that the court had discretion to grant counsel fees to the wife for legal services in connection with the hearing to determine the amount of the fee award. This is not to say that awards for legal services for fee hearings should be routinely expected or freely granted any more than those for pre-action services.  It is a matter of discretion, to be exercised in appropriate cases, to further the objectives of litigational parity, and to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation. Because a party is entitled to resist the opponent's fee application and has a right to a hearing, a mere request for a hearing should not carry with it a label of intransigence. It is for the court to make such distinctions.

• Matter Of Greiff,    NY2d   ,    NYS2d        (October 27, 1998)   (Text)-  

The Court of Appeals determined that the special relationship between engaged parties, when they execute a prenuptial agreement, can warrant a shift of the burden of proof bearing on its legality and enforceability. It concluded that a party challenging the judicial interposition of a prenuptial agreement, used to defeat a right of election, may demonstrate by a preponderance of the evidence that the pre marital relationship between the contracting individuals manifested "probable" undue and unfair advantage. In these exceptional circumstances, the burden then falls on the proponent of the prenuptial agreement to show freedom from fraud, deception or undue influence.

Appellant Helen Greiff married Herman Greiff in 1988 when they were 65 and 77 years of age, respectively. They entered into reciprocal prenuptial agreements in which each expressed the usual waiver of the statutory right of election as against the estate of the other. The husband died three months after the marriage, leaving a will that made no provision for his surviving spouse. The will left the entire estate to Mr.Greiff's children from a prior marriage. When Mrs. Greiff filed a petition seeking a statutory elective share of the estate, Mr. Greiff's children countered with the two prenuptial agreements which they claimed precluded Mrs. Greiff from exercising a right of election against her husband's estate ( see, EPTL 5 1.1[f]).

The Surrogate found, after a trial, that the husband "was in a position of great influence and advantage" in his relationship with his wife to be, and that he was able to subordinate her interests, to her prejudice and detriment. It further determined that the husband "exercised bad faith, unfair and inequitable dealings, undue influence and overreaching when he induced the petitioner to sign the proffered antenuptial agreements," particularly noting that the husband "selected and paid for" the wife's attorney. The Surrogate's Court invalidated the prenuptial agreements and granted a statutory elective share of decedent's estate to the surviving spouse.

The Appellate Division reversed, on the law, declaring that Mrs. Greiff

had failed to establish that her execution of the prenuptial agreements was

procured through her then fiancé's fraud or overreaching.

The Court of Appeals granted the widow leave to appeal, and reversed. It stated the general rule that party seeking to vitiate a contract on the ground of fraud bears the burden of proving the impediment attributable to the proponent seeking enforcement. This rule applies generally to controversies involving prenuptial agreements. However, it noted that it has held that where parties to an agreement find or place themselves in a relationship of trust and confidence at the time of execution, a special burden may be shifted to the party in whom the trust is reposed (or to the proponent of the party's interest, as in this case) to disprove fraud or overreaching ( citing, inter alia, Christian v Christian, 42 NY2d 63, 72; Sharp v Kosmalski, 40 NY2d 119, 121 122). As an illustration, it referred to the Gordon case, where the administrator of the decedent's estate challenged the transfer of funds by the decedent, one month before her death, to the nursing home in which she was a patient. The Court restated its applied guidance, as part of the invalidation of the transfer, as follows:

 

"Whenever * * * the relations between the contracting parties appear to be of such a character as to render it certain that * * * either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, * * * it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood" ( Gordon, at 698 699 [emphasis added], quoting Cowee v Cornell, 75 NY 91, 99 100).

The Court of Appeals held that this "enduring, nuanced balance of fair assessment can be applicable in the context of prenuptial agreements". It emphasized, however, that the burden shift is neither presumptively applicable nor precluded. The court noted that its decision in Graham v Graham, 143 NY 573, 579 580 has been read as holding that prenuptial agreements were presumptively fraudulent due to the nature of the relationship between prospective spouses. It s subsequent decision in Matter of Phillips, 293 NY 483, 488, on the other hand, has been urged to suggest that prenuptial agreements may never be subject to burden shifting regardless of the relationship of the parties at the time of execution and the evidence of their respective conduct.

It pointed out that Graham was decided in 1894 and indicated that prospective spouses stand in a relationship of confidence which necessarily casts doubt on or requires strict scrutiny concerning the validity of an antenuptial agreement. Its outdated premise, however, was that the man "naturally" had disproportionate influence over the woman he was to marry. It noted that a century later society and law reflect a more progressive view and they now reject the inherent inequality assumption as between men and women, in favor of a fairer, realistic appreciation of cultural and economic realities. The law starts marital partners off on an equal plane. Thus, whichever spouse contests a prenuptial agreement bears the burden to establish a fact based, particularized inequality before a proponent of a prenuptial agreement suffers. Phillips tugs in the opposite direction from Graham. However, it does not upset the balanced set of operating principles pulled together by this  decision. While holding that antenuptial agreements are not enveloped by a presumption of fraud, the Court in Phillips indicated that some extra leverage could arise from the "circumstances in which the agreement was proposed".

The Court of Appeals concluded that whichever spouse contests a prenuptial agreement bears the burden to establish a fact based, particularized inequality before a proponent of a prenuptial agreement suffers the shift in burden to disprove fraud or overreaching. The dispositive tests of legitimacy and enforceability of their prenuptial agreements need not pivot on the legalism or concept of presumptiveness.

Instead, a particularized and exceptional scrutiny obtains.

As the Appellate Division's approach did not allow for the application of these legal principles the Court remitted the case to that court for its determination. It instructed the Appellate Division that a specific frame of reference for it should be whether, based on all of the relevant evidence and standards, the nature of the relationship between the couple at the time they executed their prenuptial agreements rose to the level to shiftt the burden to the proponents of the agreements to prove freedom from fraud, deception or undue influence.

• BAST v. ROSSOFF,    NY2d     ,    NYS2d    , June 16, 1998 (Text)

In resolving the issue of how child support should be calculated when parents have "shared custody" of their child, the Court of Appeals held that by balancing the policy considerations behind enactment of the Child Support Standards Act (CSSA) against the practical challenges of applying the CSSA in shared custody situations, child support in a shared custody case should be calculated as it is in any other case. Since the lower courts bypassed the initial three step statutory formula set forth in the CSSA, it   modified and remitted for a redetermination of child support.

• KASS v. KASS,    NY2d    ,    NYS2d   , MAY 7, 1998 (Text)   In issue was the disposition of five frozen, stored pre embryos, or "pre zygotes," created five years ago, during the parties' marriage, to assist them in having a child. Now divorced, appellant, Maureen Kass wanted the pre zygotes implanted, claiming this was her only chance for genetic motherhood. Respondent Steven Kass objected to the burdens of unwanted fatherhood, claiming that the parties agreed at the time they embarked on the effort that in the present circumstances the pre zygotes would be donated to the IVF program for approved research purposes. The Court of Appeals concluded that the parties' agreement providing for donation to the IVF program controlled and held that the Appellate Division order should therefore be affirmed.

• IN THE MATTER OF SAYEH R.,   NY2d   ,     NYS2d    (1997) (Text)

  The issues presented were (1) whether the Federal Parental Kidnapping Prevention Act (PKPA) (28 USC § 1738A) preempts the Family Court from taking any action in a Neglect proceeding under Article 10 of the Family Court Act; (2) whether there was support for allegations that respondent has engaged in acts or omissions constituting neglect within the meaning of section 1012 of the Family Court Act which would justify petitioner's exercise of its child protective responsibility; and (3) whether acts by respondent authorize the assertion of personal jurisdiction by Family Court of the State of New York. The Court of Appeals held that Family Court did have subject matter jurisdiction over the proceeding and may properly assert personal jurisdiction over respondent.

  The Court of Appeals held that although Florida had chosen to retain jurisdiction over any custody matters involving respondent mother and the father of the children, the instant proceeding was not an attempt to modify the foreign custody determination but, rather, a valid exercise of lawful authority by an independent statutorily created governmental agency to intervene on behalf of two New York children at risk. A child protective proceeding under Article 10 is specifically designed to protect children from injury, abuse or mistreatment, and to help safeguard their physical, mental and emotional well being . Thus, because the parties involved and the relief sought in this child protective proceeding are quite distinct from those of a custody dispute, this child protective proceeding is not a "custody determination" within the meaning of the PKPA or New York's UCCJA . Here, DSS was acting independently pursuant to its statutory mandate, having investigated reports of alleged abuse and mistreatment. There was no evidence that DSS was acting on behalf of the children's father. It concluded that Family Court erred in viewing this Article 10 proceeding as an attempt to modify the Florida court's custody determination as between the parents, notwithstanding that court's retention of continuing jurisdiction over its prior custody order.

   

• RICONDA v. RICONDA,    NY2d     ,   NYS2d       Court of Appeals, November 25, 1997 (Text)

  The issue was whether the former wife was entitled to maintenance payable out of the estate of her deceased former spouse, during her lifetime or until her remarriage.

• The parties separation agreement required the husband to make maintenance payments of $1,468 per month "until the death or remarriage of the Wife." The agreement also provided that its pertinent provisions were to be "binding upon the heirs, legal representatives and assigns of both parties." They further agreed to release each other from any claims not arising from the agreement and waived their respective rights to share in one another's estates. The agreement also documented the distribution of various assets and personal property of the parties. It noted the deeding over of the marital residence to Judy Riconda. Under the terms of the separation agreement, Judy Riconda received $120,000 from the sale of two businesses, the proceeds from a $60,000 life insurance policy which named her as irrevocable beneficiary, one half of former husband Riconda's pension, and an IRA distribution of $16,461 upon the former husband's death. In 1989, the separation agreement was incorporated but not merged into a judgment of divorce. In 1990, John Riconda married Alison Schultz, and they remained married until his death on July 22, 1994. John Riconda's will was admitted to probate and letters testamentary were issued to the decedent's son, John R. Riconda. As executor, he petitioned the Surrogate to determine the validity of his mother's claim (SCPA 1809).

  The Surrogate's Court rejected the claim, denied the former wife's summary judgment motion, and granted the cross motion of the executor (decedent's and claimant's son). The Surrogate considered the agreement as a whole to ascertain decedent's intent and concluded that: [T]here was no express provision in the separation agreement specifically binding the decedent's estate to continue maintenance obligations after his death. Moreover, in examining the terms of [the] agreement as a whole, the court is persuaded that not only was there no intent to continue those payments after his death but the whole tenor of the agreement evidenced an intent to amply provide for the claimant by other means after decedent's death * * * .

  The Appellate Division unanimously reversed on the law and held that the "Surrogate erred in looking to the separation agreement as a whole to determine the intent of the parties" (__ AD2d __; 654 NYS 2d 786). That court limited its inquiry to the terms of the maintenance and binder provisions and determined that the separation agreement provided that the "husband's obligation to pay maintenance shall continue until the death or remarriage of the wife." Furthermore, the agreement provided that it "shall be binding upon the heirs, legal representatives and assigns of both parties herein."

  The Court of Appeals held that absent a specific statement of intent referencing maintenance, all provisions of a document should be considered together and in the context of surrounding circumstances to determine whether the payor spouse actually intended that an estate be charged with the obligation to continue maintenance payments to a recipient spouse after the death of the payor spouse.

• DeJesus v. DeJesus, 90 NY2d 643, 665 NYS2d 36 (1997) (Text))

In DeJesus v. DeJesus the Court of Appeals, held that in deciding upon and applying a rule for the equitable distribution of restricted stock and stock option benefit plans provided by a spouse's employer, the court must be guided by the statutory presumption that all property, unless clearly separate, is deemed marital property and must further recognize the titled spouse's burden to rebut that presumption.

The trial judge thus must first determine, based on competent evidence, whether and to what extent the stock plans were granted as compensation for the employee's past services or as incentive for the employee's future services. Any list of pertinent considerations could only be illustrative and not exhaustive. However, relevant factors would include whether the stock plans are offered as a bonus or as an alternative to fixed salary, whether the value or quantity of the employee's shares is tied to future performance and whether the plan is being used to attract key personnel from other companies.

To portions of the stock plans found to be compensation for past services, a time rule should be applied to factor  out any value which may be traceable to the period before the marriage, where the numerator is the time from the later of the beginning of the titled spouse's employment with the issuing company, or the beginning of the marriage, until the date of the grant, and the denominator is the time from the beginning of the titled spouse's employment until the date of the grant. To portions found to be granted as incentive, a second time rule should be applied to determine the marital share, that is, accretions from the time of the grant until the matrimonial action was commenced, and any further accumulations attributable to the contributions of the non titled spouse. Here, the numerator is the period of time from the date of the grant until the end of the marriage, which is the earlier of the date of the separation agreement or the commencement of the matrimonial action and the denominator is the period of time from the date of the grant until the stock plan matures.

Finally, what is determined to be marital property may then be equitably distributed, generally according to the judge's discretion.

Dox v. Tynon, 90 NY2d 166, 659 NYS2d 231 (1997) (Text)

In Dox v Tynon the Court of Appeals, noting that under the current scheme for enforcing court-ordered child support obligations, courts may not reduce or cancel any arrears that have accrued, held that the law does not permit a recipient to waive the right to unpaid child support simply by failing to demand payment or seek enforcement of support obligations for 11 years. It concluded that forgiveness of nonpayment based on an implied waiver is prohibited and reversed an order of the Appellate Division, which found that petitioner had waived her right to child support arrears. It reinstated the trial court's decision allowing the arrears.

• Matisoff v Dobi, 90 NY2d 127, 659 NYS2d 209 (1997)(Text)

Domestic Relations Law 236B(3) states that a nuptial agreement made before or during the marriage must satisfy three requirements to be "valid and enforceable in a matrimonial action." The agreement must be in writing. It must be subscribed by the parties and it must be "acknowledged or proven in the manner required to entitle a deed to be recorded." The Court of Appeals held that a written post-nuptial agreement that was signed by the parties but not acknowledged is unenforceable.