Amendments to Rule 7.1 (c), (d), (e) and (g) of Part 1200 of Title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York, entitled “Rules of Professional Conduct, were approved by the four presiding justices of the Appellate Division departments.

The amendments allow the use of testimonials or endorsements from clients with respect to a pending matter, as long as the clients give informed consent. They allow actors to portray judges, lawyers or clients provided the advertisements disclose that the characters are actors. The rule prohibiting a pop-up or pop-under advertisement in connection with computer-accessed communications has been eliminated.

The Amendments to Former Rule 7.1 (c), (d) (e) and (g) of Part 1200 of Title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York, entitled “Rules of Professional Conduct, deleted the sections highlighted below:

(c) An advertisement shall not:

(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter still pending; [DELETED]
(2) include a paid endorsement of, or testimonial about, a lawyer or law firm without disclosing that the person is being compensated therefor;
(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case; [DELETED]
(4) use actors to portray the lawyer, members of the law firm, or clients, or utilize depictions of fictionalized events or scenes, without disclosure of same;
(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence; [DELETED]
(6) be made to resemble legal documents; or
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter. [DELETED]

(d) An advertisement that complies with paragraph (e) may contain the following:

(1) statements that are reasonably likely to create an expectation about results the lawyer can achieve;
(2) statements that compare the lawyer's services with the services of other lawyers;
(3) testimonials or endorsements of clients, where not prohibited by paragraph (c)(1), and of former clients; or [DELETED “where not prohibited by paragraph (c)(1)”]
(4) statements describing or characterizing the quality of the lawyer's or law firm's services.
(e) It is permissible to provide the information set forth in paragraph (d) provided:
[DELETED “subdivision (d) of this section” and replaced it with “in paragraph (d)”

(1) its dissemination does not violate paragraph (a); [DELETED “paragraph (a) and replaced it with “subdivision (a) of this section’]
(2) it can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated; and
(3) it is accompanied by the following disclaimer: "Prior results do not guarantee a similar outcome."

(g) A lawyer or law firm shall not utilize:

(1) a pop-up or pop-under advertisement in connection with computer-accessed communications, other than on the lawyer or law firm's own web site or other internet presence; or [DELETED]
(2) meta tags or other hidden computer codes that, if displayed, would violate these Rules.


Revised RJI (Request for Judicial Intervention) Form

The Unified Court System has promulgated a revised Request for Judicial Intervention Form (Form USC-840 Rev. 3/2011), and Addenda, for use in civil practice in the Supreme and County Courts. The revisions contained in the new form are the product of extensive research and development by court personnel, as well as commentary from the professional bar.
The new forms include the RJI itself (UCS-840), a general addendum (UCS-840A), and specialized addenda for Commercial Division (UCS-840C), foreclosure (UCS-840F), and matrimonial matters (UCS-840M).
Parties and counsel should employ these new forms immediately and henceforth. However, to avoid unfairness in its introduction, courts and clerks should accept both the new and the former RJI form (Rev. 1/2000) for filing through August 31, 2011.
Downloaded from http://www.nycourts.gov/forms/rji/index.shtml (Last accessed May 26, 2011)

Well-established Precedent Overwhelmingly Supports a Party's Right to an Evidentiary Hearing Before a Finding of Contempt

In Bergman v Bergman, --- N.Y.S.2d ----, 2011 WL 1796364 (N.Y.A.D. 1 Dept.) the Appellate Division held that a hearing is required on a contempt motion when the party opposing the motion asserts a defense of financial inability to comply. Domestic Relations Law s 246(3) in pertinent part states: "Any person may assert his financial inability to comply with ... an order or judgment ... as a defense in a proceeding instituted against him ... to punish him for his failure to comply ... and if the court, upon the hearing of such contempt proceeding is satisfied from the proofs and evidence offered ... that the defendant is financially unable to comply ... it may, in its discretion, until further order of the court, make an order modifying such order or judgment...." Further, Domestic Relations Law 236(B)(9)(b) provides that a party may seek downward modification if he or she has experienced a "substantial change in circumstances:" There is no limit to the number of times a party may seek downward modification. The party must demonstrate that there has been a substantial change in circumstances to merit any downward modification. There is no right to a hearing absent a prima facie showing of entitlement to downward modification. However, well-established precedent overwhelmingly supports a party's right to an evidentiary hearing before a finding of contempt (Boritzer v. Boritzer, 137 A.D.2d 477 [1988]; Comerford v. Comerford, 49 A.D.2d 818 [1975]; Singer v. Singer, 52 A.D.2d 774 [1976]; see also Gifford v. Gifford, 223 A.D.2d 669 [1996] ). In Singer, this Court held that "[d]ue process requires that a hearing be held before one can be adjudged in contempt" , undoubtably because a finding of contempt may result in incarceration as, indeed, it did in this case. Here, defendant has not had any opportunity to offer "proofs [or] evidence" at a hearing on either plaintiff's contempt motion or defendant's cross motion for downward modification. The court entirely ignored the affidavits prepared by a reputable forensic accountant, and the voluminous documentation defendant presented. In the court's opinion, defendant had "repeated days in court." However, on this motion, defendant clearly presented new financial information and an expert affidavit explaining that defendant's circumstances had changed, and not for the better. Accordingly, it held that defendant should have had a hearing to assess the new financial information and new expert affidavit.

Lifetime Maintenance Award of $200 per Week Warranted Given the Identified Disparity in the Parties' Respective Incomes and the Wife's Reduced Earning Potential.

In Scarpace v Scarpace, --- N.Y.S.2d ----, 2011 WL 1797230 (N.Y.A.D. 3 Dept.) after 31 years of marriage, plaintiff (husband) commenced an action for divorce. The parties entered into a stipulation with respect to all issues with the exception of spousal maintenance. According to their stipulation, the marital property was divided such that each party would retain various liquid assets valued at approximately $580,000. The wife's share included the unencumbered former marital residence, appraised at $250,000, and a payment received from the husband in the amount of $110,000. The parties also stipulated, that they each retain their own pension rights as separate property. After a trial, Supreme Court awarded the wife maintenance in the amount of $200 per week for six years, effective May 22, 2009. On appeal the wife contended that Supreme Court erred in setting the amount of maintenance at $200 per week and in limiting its duration to six years. The wife argued that the maintenance award would impair her ability to save money and, because she would reach her intended retirement age when the maintenance award terminates, she will be forced to rely on her savings to maintain her standard of living. The Appellate Division modified the underlying judgment to he extent that the wife was to receive lifetime maintenance in the amount of $200 per week, retroactive to October 16, 2007, the date of her answer. The Appellate Division observed that "Maintenance is appropriate where, among other things, the marriage is of long duration, the recipient spouse has been out of the work force for a number of years, has sacrificed her or his own career development or has made substantial noneconomic contributions to the household or to the career of the payor". At the time of trial, both parties were in their mid-fifties and in generally good health. Throughout their marriage, they lived a financially conservative lifestyle, resulting in no college loans for their four emancipated children and no mortgage on the marital home. While the husband attended college and built his career, the wife worked various part-time and seasonal jobs and devoted her time to tending to the needs of their children. As a result, the wife did not commence her current full-time occupation with State Farm Insurance until approximately 1996, such that at the time of trial, her annual income was roughly $32,000. The husband was earning $104,000 per year as a 32-year employee of the Department of Taxation and Finance. While the husband estimated that he would receive over $5,000 per month from his pension alone upon retirement, the wife estimated that between Social Security retirement and her own pension, she would receive approximately $1,200 per month upon her retirement. The wife also testified that she was now required to pay for health and homeowner's insurance, school and property taxes and various utilities and household expenses, all of which previously had been paid for by the husband. Finally, the wife testified that, while she used to save $600 per month, since the divorce she can only afford to save $275 per month, and that she has accumulated $8,600 in credit card debt due to their son's college expenses. The Appellate Division was persuaded that an award of lifetime maintenance was appropriate here. While it was true that the parties enjoyed a modest standard of living during their marriage and that the wife not only can contribute toward her own support but also has received assets through equitable distribution, one of "the many specific considerations underlying an award of nondurational maintenance ... is the present and potential future income of the parties". Given the identified disparity in the parties' respective incomes and the wife's reduced earning potential, it found a nondurational maintenance award of $200 per week to be warranted.

Finding That MBA Made the Defendant a More Attractive Candidate for Position in the Financial Sector of the Cable Television Industry Enhanced His Earning Capacity and Was a Marital Asset.

In Huffman v Huffman, --- N.Y.S.2d ----, 2011 WL 1817309 (N.Y.A.D. 2 Dept.) Supreme Court awarded the plaintiff 30% of the value of defendants master's degree, weekly child support of $1,281.14, and maintenance for four years commencing December 1, 2008, in the amounts of $5,000 per month for the first and second years, $3,500 per month for the third year, and $2,000 per month for the fourth year, and directed him to pay to the plaintiff $90,793.02 in connection with certain bonus money. The Appellate Divison held that Supreme Court's determination of basic child support was proper. The Supreme Court providently exercised its discretion in calculating child support against $300,000 of the defendant's income based upon the standard of living that the parties' children would have enjoyed had the marriage not dissolved and upon the parties' disparate financial circumstances, which were apparent from the record. Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in awarding the plaintiff maintenance for four years beginning December 2008, given the length of the parties' marriage, the plaintiff's ability to reenter the workforce, and the fact that the defendant was paying temporary support pursuant to a pendente lite order dated February 25, 2005, requiring him to pay the plaintiff $2,500 per month in maintenance retroactive to November 11, 2004. Thus, the maintenance award had to be recalculated retroactive to November 11, 2004, taking into account any credit due for amounts paid by the defendant pursuant to the pendente lite order. The Appellate Division disagreed with defendants contention that the trial court erred in concluding that his MBA degree provided him with an enhanced earning capacity subject to equitable distribution. An academic degree earned during a marriage qualifies as marital property which is subject to equitable distribution ( McGowan v. McGowan, 142 A.D.2d 355, 357). The value of a degree is the "enhanced earning capacity it affords the holder" (O'Brien v. O'Brien, 66 N.Y.2d 576, 588). Here, while the defendant presented some evidence that an MBA degree was not an actual prerequisite to his employment in various finance positions in the cable television industry, there was also ample evidence, including expert testimony, to support the Supreme Court's finding that the attainment of this degree made the defendant a more attractive candidate for a position in the financial sector of the cable television industry. Accordingly, the Supreme Court properly concluded that the MBA degree which the defendant obtained during the course of his employment enhanced his earning capacity. The Supreme Court also properly determined that the plaintiff was entitled to a 30% share of the defendant's enhanced earning capacity. Although the plaintiff did not make direct financial contributions to the husband's attainment of his MBA degree, she made substantial indirect contributions by, inter alia, supporting the husband's educational endeavors, working until August 2000 and contributing her earnings to the family, being the primary caretaker of the couple's children, cooking family meals, and participating in housekeeping responsibilities. Bonuses earned for work by a spouse during the marriage constitute marital property subject to equitable distribution, even if paid after commencement of the divorce action, and are distributed after taking income taxes into account. It saw no reason to disturb the Supreme Court's equitable distribution of the defendant's 2002 and 2003 bonuses. However, it agreed with the defendant's contention that the Supreme Court erroneously distributed his gross 2004 bonus without taking into account income taxes. Accordingly, upon remittal, to the Supreme Court the award had to be recalculated to the extent it is based upon the defendant's 2004 bonus, to take into account income taxes paid by the plaintiff.
 

Proper to Apply a Lack of Marketability Discount of 25% to Reflect the Risk Associated with the Illiquidity of a Close Corporation Whose Shares Cannot Be Freely Traded.

In Cooper v Cooper, --- N.Y.S.2d ----, 2011 WL 1817757 (N.Y.A.D. 2 Dept.) the parties were married on April 8, 1984, and had two children, born in 1989, and 1992, respectively. Supreme Court, inter alia, awarded the plaintiff post-divorce maintenance of $5,000 per month for a period of four years, interest of 9% per annum on installment payments of the plaintiff's distributive awards, child support of $1,192.31 per week, based upon a finding that the defendant's "CSSA income is $250,000 per year," directed the defendant to maintain a life insurance policy for the benefit of the plaintiff and the children in the value of $500,000, and awarded her counsel fees of $50,000. This action was commenced in March 2003. The defendant was the founder and owner of Triangle Electronics Group, Inc. ( Triangle), which distributed electronic components. A primary issue at trial and on appeal was the equitable distribution of the defendant's 100% interest in Triangle, which the Supreme Court determined was worth $1,625,000 on the date of commencement of the action. In so doing, the Supreme Court credited the defendant's expert. The Appellate Divison held that the determination of the fact finder as to the value of a business, if within the range of the testimony presented, will be accorded deference on appeal if it rests primarily on the credibility of expert witnesses and their valuation techniques". The testimony of the defendant's expert, which was supported by competent evidence in the record and a written report admitted into evidence, was properly credited by the Supreme Court. The defendant's expert properly applied a lack of marketability discount of 25% to reflect the risk associated with the illiquidity of a close corporation whose shares cannot be freely traded. The Supreme Court properly determined that the plaintiff was responsible for one-half of the federal tax liability of $1,371,744 incurred when the defendant filed amended income tax returns for the tax years 1999, 2000, 2001, 2002, and 2003, but that she was not responsible for New York State tax liability, or any interest and penalties as a result of the filing of the amended tax returns. Since that tax liability was incurred during the marriage, the Supreme Court properly determined that the plaintiff was responsible for part of this liability. The record established that the defendant was responsible for the delay in reporting the income declared on those amended returns and, therefore, was properly required to pay all interest and penalties. Further, under all of the circumstances of this case, including that fact that, with respect to New York State tax liability, the plaintiff was officially adjudicated an innocent spouse, the Supreme Court providently exercised its discretion in determining that the plaintiff was not responsible for any of the New York State tax liability. The Supreme Court properly exercised its discretion in awarding the plaintiff post-divorce maintenance in the sum of $5,000 per month for a period of four years, based upon the parties' standard of living during the marriage, their income, and the plaintiff's distributive awards. The amount of maintenance awarded to the plaintiff would ensure that her reasonable needs were met, while providing her with an incentive to become self-supporting. Further, the award of child support was proper. The award of counsel fees, and the denial of additional expert fees, was a provident exercise of discretion, in light of the interim awards of counsel fees and expert fees, and the Supreme Court's conclusion that the fees demanded by the plaintiff's expert were excessive. Further, the award of interest at the statutory rate of 9% per annum (see CPLR 5004), on the plaintiff's distributive awards, should the defendant elect to pay those awards in installments over a period of five years, was a provident exercise of discretion.
 

In Matter of Yorke v Yorke, --- N.Y.S.2d ----, 2011 WL 1499108 (N.Y.A.D. 2 Dept.) the parties were the parents of a child who was a college student beginning in the Fall 2007 semester. By orders dated October 16, 2007, and December 20, 2007, respectively, the father was directed to pay 83% of the college tuition for the child prior to March 2009, and 82% of the tuition for the child subsequent to March 2009. Those orders provided that the father was not responsible for contributing towards the child's room and board at college. In 2009 the mother commenced a proceeding, alleging that the father had failed to contribute the required amount to college tuition for the five semesters from Fall 2007 through and including Fall 2009. Family Court issued an order dated March 29, 2010, in which that court determined the father's obligation for college costs for the child and found that the father was entitled to a credit in the sum of $3,407. In the order the Family Court deducted financial aid, including "Stafford" loans, prior to determining the father's share of college costs for the child. The Appellate Division held that in determining the parents' respective obligations towards the cost of college, a court should not take into account any college loans for which the student is responsible. Therefore, any loans for which the child is responsible should not have been deducted from the college costs prior to determining the father's pro rata share of those costs. Here, the record did not indicate whether the child was responsible for repayment of the Stafford loans reflected on the statements from the college. Accordingly, the matter was remitted to the Family Court for clarification of this matter. In addition, the Family Court erred in applying the total amount of scholarships, grants, and student loans for which the child was not responsible ( financial aid). First, the Family Court should have calculated the total cost of attending college, including tuition, and room and board. Next, it should have determined the percentage of that total cost which was covered by financial aid. That percentage should then have been applied to the tuition portion. Finally, the father's share of the net tuition, after deducting the pro rata financial aid, should have been calculated based upon his percentage of responsibility . For example, if tuition is $12,000 and room and board is $8,000, totaling $20,000, and financial aid is $15,000, or 75% of the total college cost, the net tuition after pro rata financial aid would be $3,000. The father's pro rata tuition obligation should then be applied to that amount to determine his contribution to tuition. Accordingly, the matter was remitted to the Family Court for recalculation of the father's obligation to contribute towards college costs.


Direction in Judgment to Pay "One-half of the Mortgage and Real Estate Charges of the Marital Residence and Half of the Cost of Any Repair to the Home in Excess of $750.00" Constituted an Improper Open-ended Obligation

In Mosso v Mosso--- N.Y.S.2d ----, 2011 WL 1733948 (N.Y.A.D. 2 Dept.) defendant appealed from so much of a judgment of the Supreme Court as (1) imputed an annual income to him of $52,000 for the purpose of calculating his child support obligations, (2) directed him to pay $1,160 per month in child support retroactive to the date of the commencement of the action, (3) directed him to pay one-half of the mortgage and real estate tax charges of the marital residence and half the cost of any repair to the home in excess of $750, (4) directed him to pay 100% of a $30,000 home equity loan on the marital residence, (5) awarded the plaintiff $13,777 from certain bank accounts, and (6) awarded the plaintiff exclusive use and occupancy of the marital residence until the last of the parties' children reaches majority. The Appellate Divison held that Supreme Court did not improvidently exercise its discretion in it imputing an annual income to the defendant of $52,000 for the purpose of calculating his child support obligations. However, in calculating the child support award, the Supreme Court's direction that the defendant pay both child support and half of the carrying charges on the marital residence resulted in an improper double shelter allowance. The matter was remitted to the Supreme Court to recalculate the child support award ‘taking into account the shelter costs incurred by the defendant in providing housing to the plaintiff and the minor children". It held that Supreme Court also improperly awarded retroactive child support to August 1, 2007, the date of the commencement of the action, since the plaintiff did not request child support until she filed an amended complaint on August 27, 2007. It directed that since an award of child support may be made "effective as of the date of the application therefor" (Domestic Relations Law 236[B][7][a] ), on remittal, the Supreme Court's new child support award should be made retroactive to August 27, 2007. It found the defendant's contention that the plaintiff was not entitled to any retroactive child support because she later withdrew her amended complaint was without merit. The record established that the amended complaint was withdrawn solely to relinquish a cause of action for divorce on the ground of cruel and inhuman treatment, and that the plaintiff's request for child support was intended to remain a part of the action. In addition, the matter had to be remitted to the Supreme Court because the Supreme Court's directive that the defendant pay "one-half of the mortgage and real estate charges of the marital residence and half of the cost of any repair to the home in excess of $750.00" constituted an improper open-ended obligation (citing 22 NYCRR subtitle D, Ch III, subchapter B0. The direction to pay for repairs and other maintenance should state a maximum monthly or yearly amount. The Appellate Divison held that Supreme Court also improvidently exercised its discretion in directing that the defendant be 100% responsible for repayment of a $30,000 loan drawn on a home equity line of credit. Expenses incurred prior to the commencement of a divorce action constitute marital debt and should be equally shared by the parties. Although the defendant should be solely responsible for repaying $10,000 of this loan, which he used to pay his attorney's fees, the burden of repaying the remaining $20,000 should be shared by the parties since this debt was incurred during the marriage and the evidence at trial failed to establish a compelling reason why the defendant should bear the cost of repayment alone. The Appellate Division held that Supreme Court did not err in granting the plaintiff and the parties' children the exclusive use and occupancy of the marital residence until the youngest child reaches the age of 18. Exclusive possession of the marital residence is usually granted to the spouse who has custody of the minor children of the marriage. In making this determination, the need of the custodial parent to occupy the marital residence is weighed against the financial need of the parties. The evidence at trial established that the parties were capable of maintaining the marital residence and that suitable comparable housing could not be obtained at a lesser cost than the cost to maintain the marital residence. Further, the defendant failed to establish an immediate need for his share of the proceeds of the sale of the marital residence. The defendant failed to meet his burden of establishing that certain assets in a bank account, acquired during the marriage, were not marital property subject to equitable distribution. Accordingly, the Supreme Court properly provided for the equitable distribution of those funds.

Must be Sufficient Evidence to Support Interim Counsel Fee Award for Services Previously Rendered

In Mimran v Mimran, --- N.Y.S.2d ----, 2011 WL 1496465 (N.Y.A.D. 1 Dept.) Supreme Court directed defendant to pay plaintiff $200,000 as interim counsel fees. The Appellate Division reversed. It held that regardless of whether plaintiff otherwise made a sufficient showing to support an award of interim counsel fees defendant was correct that neither plaintiff nor her counsel provided adequate documentation of the amount of fees already paid, the amount required for experts, the dates and nature of the services previously rendered, or the number of hours of work to be performed. Thus, there was insufficient evidence to support an award for outstanding fees already incurred and no basis upon which an appropriate prospective fee award could be determined.
 

Fourth Department Holds That Matter of Oswego County Support Collection Unit v. Richards Should No Longer Be Followed.

In Matter of Huard v Lugo, --- N.Y.S.2d ----, 2011 WL 455295 (N.Y.A.D. 4 Dept.) Respondent father appealed from an order confirming the determination of the Support Magistrate that he willfully violated an order of child support and sentencing him to a term of incarceration of 90 days. The father contended that the Support Magistrate erred in allowing him to proceed pro se at the fact-finding hearing. The Appellate Divison noted that the father did not file any objections to the Support Magistrate's order. In Matter of Oswego County Support Collection Unit v. Richards (305 A.D.2d 1101, lv denied 100 N.Y.2d 637), it determined that, because the respondent failed to file objections to the Hearing Examiner's order finding willfulness and recommending commitment pursuant to Family Court Act 439 (former [e] ), he "waiv[ed] his right to appellate review of the finding of a willful violation. Section 439(e), however, was revised in 2004 by providing that a determination of willful violation of a support order where commitment is recommended does not constitute a final order. A determination by a support magistrate that a person is in willful violation of a support order and recommending commitment has no force and effect until confirmed by a Judge of the Family Court Such a determination by a support magistrate does not constitute a final order to which a party may file written objections. A party's "sole remedy" is to appeal from the final order of Family Court (Dakin, 75 AD3d at 640). It held that to the extent that Matter of Oswego County Support Collection Unit v. Richards required a party to file objections in order to preserve a contention regarding such a determination, it should no longer be followed. The Court concluded however, that the father failed to preserve his contention for review under the "normal rules of preservation" because he failed to raise it before Family Court at the confirmation proceeding, where he was represented by counsel. In any event, it found that the father's contention lacked merit.

To Establish That an Family Offense Has Occurred Does Not Require Proof Beyond a Reasonable Doubt Unless the Remedy to Be Imposed Is Punitive

In Matter of Schneider v Arata, --- N.Y.S.2d ----, 2011 WL 337962 (N.Y.A.D. 2 Dept.) the Appellate Division observed that Family offense proceedings, in general, provide for remedies that are civil in nature and to establish that an offense has occurred does not require proof beyond a reasonable doubt unless the remedy to be imposed is punitive. The respondent's acquittal of the criminal charge related to the same conduct alleged in the family offense petition does not have res judicata effect with respect to the family offense proceeding, as the acquittal did not decide an identical issue material to the petition. Accordingly, the Family Court erred in dismissing the petition on this basis. Likewise, the constitutional protection against double jeopardy presents no bar to the family offense proceeding, as no punitive remedy is sought therein. As the record was insufficient to permit the Court to determine whether the parties had an intimate relationship within the meaning of Family Court Act 821(1)(e) the matter was remitted to the Family Court for a hearing to determine whether the Family Court has subject matter jurisdiction under Family Court Act 812(1)(e) and, if so, whether a family offense had been committed.

Absent Amendment Order of Protection May Not Be Based Upon Post-Petition Incidents

In Matter of Ungar v Ungar, --- N.Y.S.2d ----, 2011 WL 256559 (N.Y.A.D. 2 Dept.) petitioner (son) filed a family offense petition dated September 19, 2008, against the appellant (father). The petition alleged harassment and that the most recent incident had occurred on September 11, 2008. The Family Court issued a temporary order of protection and thereafter denied the father's motion to dismiss the petition. On February 9, 2010, a fact-finding hearing was held and the Family Court heard testimony from both the son and the father. The Family Court granted the petition and issued an order of protection against the father, based, in part, upon a post-petition incident purportedly occurring in October 2008. The Appellate Division held that as the son specifically acknowledged that the petition had not been amended, the Family Court improperly issued the order of protection based, in part, upon allegations of acts that occurred in October 2008 (citing Matter of Czop v. Czop, 21 AD3d 958, 959; Matter of Cavanaugh v. Madden, 298 A.D.2d 390; Matter of Whittemore v. Lloyd, 266 A.D.2d 305). Considering the other allegations set forth in the petition, the testimony proffered at the hearing before the Family Court failed to establish, by a preponderance of the evidence, the necessary elements of the offenses of harassment in the first degree or harassment in the second degree. Since the record did not support the Family Court's determination that the father committed family offenses warranting the issuance of the order of protection, the order of protection was reversed, the petition denied, and the proceeding dismissed (see Family Ct Act 841).

Whether a Breakdown of a Marriage Is Irretrievable Is a Question to Be Determined by the Finder of Fact

In Strack v Strack, --- N.Y.S.2d ----, 2011 WL 356058 (N.Y.Sup.) the parties were married on May 25, 1963 and plaintiff sought a divorce based upon the no fault grounds contained within Domestic Relations Law s 170(7). This was the third divorce action plaintiff has commenced. She commenced divorce actions in 1986 and 1990, respectively, both of which were voluntarily discontinued. In lieu of an answer, defendant moved to dismiss the complaint, contending (1) that the complaint lacks specificity (see CPLR 3016[c] ); (2) that the conduct alleged in the complaint was barred by the five-year statute of limitations (see Domestic Relations Law § 210[a] ); and (3) that the complaint failed to state a cause of action for divorce under Domestic Relations Law § 170(7). The Supreme Court observed that Domestic Relations Law § 170(7) permits divorce where "[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.". The allegations in the complaint were as follows: "The relationship between husband and wife has broken down such that it is irretrievable and has been for a period of at least six months. For a period of time greater than six months, Defendant and Plaintiff have had no emotion in their marriage, and have kept largely separate social schedules and vacation schedules. Each year Plaintiff and Defendant live separately throughout most of the winter months. Though they share the residence for several months out of the year, Plaintiff and Defendant have not lived as husband and wife for a period of time greater than six months. Plaintiff believes the relationship between she and Defendant has broken down such that it is irretrievable and that the relationship has been this way for a period of time greater than six months." The Court found that the allegations were specific and met the additional pleading requirement of having been "stated under oath" (Domestic Relations Law § 170[7] ). With reference to defendant's claim that the statute of limitations had run against plaintiff's cause of action, Domestic Relations Law § 210(a) provides that "[n]o action for divorce ... may be maintained on a ground which arose more than five years before the date of the commencement of that action for divorce ...except where ... the grounds therefor are one of those specified in [Domestic Relations Law § 170](2), (4), (5) or (6)...." The grounds specified in Domestic Relations Law § 170(7) are absent from Domestic Relations Law § 210(a), which absence allows no conclusion other than it was the Legislature's intent to exclude it. The Court therefore found that the grounds set forth in Domestic Relations Law § 170(7) were subject to the five-year statute of limitations. As the record revealed several instances of matrimonial discord that occurred within the past five years, the Court found that plaintiff's cause of action was not barred by the applicable statute of limitations. Additionally, to the extent that some instances of matrimonial discord occurred more than five years ago, the Court found such instances to be part of a continuing course of conduct. The Court observed that the legislative history pertaining to Domestic Relations Law § 170(7) contains a wide ranging catalogue of submissions from numerous private individuals, organizations, legislators, and agencies throughout New York State. It appeared that Domestic Relations Law s 170(7) was simply a new cause of action subject to the same rules of practice governing the subdivisions which have preceded it. Specifically, Domestic Relations Law § 173 provides that "[i]n an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce" and, here, the Legislature failed to include anything in Domestic Relations Law § 170(7) to suggest that the grounds contained therein are exempt from this right to trial. Had it intended to abolish the right to trial for the grounds contained within Domestic Relations Law § 170(7), it would have explicitly done so. Insofar as the phrase "broken down such that it is irretrievable" is nowhere defined in the statute, the determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact. The Court held however, that whether a marriage is so broken that it is irretrievable need not necessarily be so viewed by both parties. Accordingly, the fact finder may conclude that a marriage is broken down irretrievably even though one of the parties continues to believe that the breakdown is not irretrievable and/or that there is still some possibility of reconciliation. Having found that Domestic Relations Law § 173 was applicable to Domestic Relations Law § 170(7), the Court ordered that there be an immediate trial on the issue raised in defendant's motion, namely whether "[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months."

In Scott M v Ilona M., --- N.Y.S.2d ----, 2011 WL 285640 (N.Y.Sup.) Supreme Court found that the new mandatory pendente lite maintenance guidelines and pendente lite counsel fee statutes enacted by the legislature should be deviated from where the calculations will result in the payee spouse having more monies available than the payor spouse as a result of the calculation. The Court also determined that the shift in financial resources that results from the guideline calculation rebuts the presumption of the payor spouse being the "monied" spouse. The Court performed a number of calculations in order to explain the options and consequences of the calculation (see DRL 236 B[5-a] ). The husbands gross income was $155,590.00 and the wife’s gross Income was $33,705.36. The court noted that the new statute changes the philosophy and purposes of pendente lite support. No longer is the standard to tide over the "more" needy spouse. The standard is a shift in resources pre-trial by automatic calculation. After considering the statutory factors, the Court found that the presumptive amount of temporary maintenance of $37,016.14 (which was $3,097.00 per month) would be unjust and inappropriate because (1) the Court must consider the existence and duration of the pre-divorce joint household of both parties and (2) the child care expense obligation of the parties. This determination cannot be made in a vacuum. In the case at bar and under the formula enunciated by the recent legislation, the shift in resources from the payor spouse to the payee spouse resulted in the payor spouse having a substantial reduction in resources and thus, could not maintain his pre-separation household. The Court recognized that the purpose of a pendente lite award is no longer to "tide over the more needy party", and deviated and determined that temporary maintenance in the amount of $24,667.42 per annum pendente lite implemented the intent and language of the new law. The court deviated in order for the plaintiff to meet his pre-divorce household expenses and taking into account the parties expenses, child care costs and net available resources. The wife requested an award of interim counsel fees in the amount of $10,000.00. The Court noted that the legislation also changed the methodology for the ordering of counsel fees pendente lite. DRL 237 has been amended to provide that: "[t]here shall be rebuttable presumption that counsel fees shall be awarded to the less monied spouse. The husband earned $155,590.00 and the wife earned $33,705.36. The husband was the monied spouse. In accordance with the new statutory scheme there is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse, the wife. However, based upon the temporary maintenance and child support award, even with the deviation, the court could no longer consider the husband as a "monied spouse". Even with the deviation, there was a substantial shift in actual financial resources. The re-allocation of financial resources articulated in the decision shifted the burden from the husband from being considered the monied spouse, and rebutted the presumption. There was no doubt that the plaintiff earned more than the defendant , and there was a disparity in gross income, but under the financial shift as a result of the mandatory Child Support Standards Act and Maintenance guidelines, even with the maintenance deviation of one-third, the defendant would have more available resources for her and the child than plaintiff. The Court could not hold that just because one party "earns more" than the other that they automatically become the "monied spouse".

Attorney Not Entitled to Charging Lien if Bills Not Sent Every Sixty Days

In Hovanec v Hovanec, --- N.Y.S.2d ----, 2010 WL 5095419 (N.Y.A.D. 2 Dept.) the Appellate Division pointed out that the court rules imposing certain requirements upon attorneys who represent clients in domestic relations matters (see 22 NYCRR part 1400) were designed to address abuses in the practice of matrimonial law and to protect the public. The failure to substantially comply with those rules will preclude an attorney's recovery of a legal fee. Here, Supreme Court correctly determined, upon reargument, that there was no basis to change the original determination that the appellant had failed to make a prima facie showing, by submitting the requisite documentary evidence, that it substantially complied with the requirement of providing itemized bills for legal services to its client at least every 60 days (see 22 NYCRR 1400.2, 1400.3). Accordingly, the Supreme Court properly adhered to its original determination that the appellant had failed to establish its entitlement to a charging lien.

Error to Admit Evidence at Family Offense Dispositional Hearing Concerning Incident Not "Relatively Contemporaneous"

In Matter of Pearlman v Pearlman, --- N.Y.S.2d ----, 2010 WL 4366900 (N.Y.A.D. 2 Dept.) the Appellate Division held that a family offense must be established by a fair preponderance of the evidence ( Family Ct Act 832) and the evidence adduced at the fact-finding hearing proved by the requisite preponderance of the evidence that the appellant committed acts constituting disorderly conduct. However, it agreed with the appellant that the Family Court erred in admitting evidence at the dispositional hearing concerning an incident that was not "relatively contemporaneous". However, its finding of aggravating circumstances was based on numerous other factors, including its own observation of the appellant's "wildly erratic and inappropriate behavior and affect in the courtroom," that were sufficient to support the finding, even without the incident of domestic violence that occurred three or five years prior to the filing of the family offense petition (Family Ct Act 827 [a][vii] ). It found no merit to the appellant's argument that he was subjected to double jeopardy because the petitioner filed a criminal complaint regarding an alleged violation of the temporary order of protection issued by the Family Court, and was then permitted to testify about the alleged violation during the dispositional hearing. While double jeopardy concerns may come into play where a person allegedly wilfully violates an order of protection, those considerations are not relevant where, as here, the petitioner is merely seeking an order of protection, a remedy which is not punitive and does not involve, at this stage, incarceration. Contrary to the appellant's contention, the Family Court properly permitted the petitioner to testify, during the dispositional hearing, regarding incidents that had been alleged in violation petitions not then before the court. "A broader standard of admissibility of evidence is available on the dispositional hearing than at the fact-finding hearing, and evidence may be admitted as long as it is 'material and relevant' (Family Ct Act 834), including hearsay and other evidence otherwise incompetent.

In Matter of McCLurkin v Bailey, --- N.Y.S.2d ----, 2010 WL 4366912 (N.Y.A.D. 2 Dept.) the Appellate Division found that Family Court's determination that there had been a sufficient change in circumstances since the issuance of its prior custody order such that it would be in the best interests of the child to award the father sole custody had a sound and substantial basis in the record. Although the prior custody order awarded the mother sole custody of the child, the Family Court had warned her that continued attempts to prevent the father from fostering a relationship with the child could result in a change of custody. The hearing testimony demonstrated that after the issuance of the prior order, the mother interfered with the father's visitation rights by repeatedly failing to bring the child to scheduled visitations and to accommodate court-ordered phone contact between the father and the child. There was also evidence that the mother made unfounded reports of child abuse against the father, and that she continued to be uncooperative and unsupportive of his efforts to foster a relationship with the child. This conduct was so inconsistent with the child's best interests that it per se raised a strong probability that the mother was unfit to act as a custodial parent.

Child Support Payments May Be Suspended Where Noncustodial Parent Establishes Right of Reasonable Access to Child Unjustifiably Frustrated by Custodial Parent

In Thompson v Thompson, --- N.Y.S.2d ----, 2010 WL 4540329 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order which granted the father's petition alleging a violation of a previous order of visitation and suspended the father's obligation to pay child support and related expenses regarding the child, nunc pro tunc from December 24, 2008, unless and until a determination was made that visitation between the father and the child has resumed. In January 2004 the father commenced a proceeding seeking visitation with the parties' who was born in 1996. After a hearing, by order entered January 11, 2006, the Family Court granted the father's petition for therapeutic visitation. On appeal, the Appellate Division modified that order by adding a directive that the father and the child submit to individual therapy (Matter of Thompson v. Yu-Thompson, 41 AD3d 487). Soon after the Family Court entered its order, the father filed a petition alleging violation of the order by the mother. Visits finally commenced in December 2006 and went well, but one month later, the father filed this petition alleging that the mother was not responding to repeated requests to schedule further visitations. During the proceedings on the petition, visitations resumed, but interactions between father and son became progressively more strained, with the child refusing to visit with his father at all or to engage with his father when visits did occur. After a hearing, the Family Court found that the child was so closely allied with his mother and her negative view of the father that "it appears that the hoped-for reconnection between [the child] and his father" was unlikely at that time. Finding that the mother had failed to encourage, and had interfered with, visitation, the Family Court granted the father's violation petition and suspended the father's child support payments until visitation resumes. The Appellate Division held that where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended. Such suspension of child support is warranted only where the custodial parent's actions rise to the level of 'deliberate frustration' or 'active interference' with the noncustodial parent's visitation rights. The evidence at the hearing supported the Family Court's finding that the mother deliberately frustrated the child's court-ordered visitation with his father such that suspension of child support payments until visitation resumed was warranted. There was evidence that the mother communicated her enmity towards the father to the child, made inappropriate disclosures concerning the parties' history, and failed to encourage and facilitate regular visitation, missing numerous scheduled visitations and ultimately supporting the child's decision to refuse visitation. The evidence supported the finding that the mother, by her example, her actions, and her inaction, deliberately frustrated visitation by manipulating the child's loyalty and orchestrating and encouraging the estrangement of father and son.

Objections Deemed Filed When Received and "Date Stamped" by the Family Court.

In Matter of Bruckstein v Bruckstein, --- N.Y.S.2d ----, 2010 WL 4367015 (N.Y.A.D. 2 Dept.) the Appellate Division held that pursuant to Family Court Act 439 (e), objections to an order of a Support Magistrate must be filed within 35 days after the mailing of the order to the aggrieved party and that the objections are deemed filed when received and "date stamped" by the Family Court. The father established that, although the March 11, 2009, order of the Support Magistrate stated that it was mailed to him on March 12, 2009, it was not actually mailed until March 13, 2009. However, the objections were date stamped as received by the Family Court on April 20, 2009, which is more than 35 days after March 13, 2009. Accordingly, the Family Court properly denied the objections as untimely.

Laws of 2010, Ch 384, effective October 12, 2010, amended Domestic Relations Law § 170 to add subdivision 7. It adopts the "irretrievably broken" no-fault divorce ground for New York. However, a divorce may not be granted until all of the major ancillary issues are resolved by the parties or the court.

Laws of 2010, Ch 371, effective October 12, 2010, amends Domestic Relations Law § 236 [B][6] to add a subdivision 5-a. It revises the process for setting awards of temporary maintenance during the pendency of a matrimonial action, by creating a formula and list of factors that presumptively govern such awards. It amends Domestic Relations Law § 236 [B][1][a] to update the definition of "maintenance" by cross-referencing it to Domestic Relations Law § 236 [B] [6] subdivision 5-a and amends Domestic Relations Law § 236 [B][6] to add 5 new factors for the court to consider in determining the amount and duration of "post-divorce "maintenance.

Laws of 2010, Ch 329, as amended by Laws of 2010, Ch 415, effective October 12, 2010 amended Domestic Relations Law §§ 237 and 238 to create a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. It adds actions to obtain maintenance or distribution of property after a foreign judgment of divorce to the actions for which such fees shall be awarded. In exercising the court's discretion, the court is required to seek to assure that each party is adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis pendente lite, so as to enable adequate representation from the commencement of the proceeding. In addition the court is authorized to order expert fees to be paid by one party to the other to enable the party to carry on or defend the action. The parties and their attorneys are also required to submit an affidavit to the court with financial information to enable the court to make its determination. The monied spouse is now required to disclose how much he has agreed to pay and how much he has paid his attorney. The affidavit must include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. In addition, Domestic Relations Law § 238 was also amended to add to the actions for which such fees shall be awarded "actions to enforce a court order".

Court of Appeals Holds that the Initial Determination of Whether a Particular Asset Is Marital or Separate Property Is a Question of Law, Subject to Plenary Review on Appeal, and DRL 236 Creates a Presumption That All Property, Unless Clearly Separate, Is Deemed Marital Property' and the Burden Rests with the Titled Spouse to Rebut That Presumption.

In Fields v Fields, __NY3d ___, 6/11/2010 NYLJ 36, (col. 3) the Court of Appeals, in an opinion by Judge Graffeo, observed that, although the manner in which marital property is distributed falls within the discretion of the trial court, 'the initial determination of whether a particular asset is marital or separate property is a question of law, subject to plenary review on appeal' (DeJesus v. DeJesus, 90 NY2d 643, 647 [1997])." Here, the Court concluded that the value of the husband's one-half interest in the parties' residence, a Manhattan townhouse that the husband purchased during the marriage and where the parties had lived for nearly thirty years, was marital property and affirmed the order of the Appellate Division. (Click here for complete discussion )

Family Court Has Subject Matter Jurisdiction over Family Offense Proceedings Where Alleged Acts Occurred Outside State

In Matter of Richardson v Richardson, --- N.Y.S.2d ----, 2010 WL 4366892 (N.Y.A.D. 2 Dept.) the Appellate Division, in an opinion by Judge Levanthal, held that the Family Court has subject matter jurisdiction over family offense proceedings where the alleged acts occurred outside of the state and even outside of the country. It held that Family Court t Act §812 grants the Family Court subject matter jurisdiction to hear such proceedings and that the Family Court properly exercised jurisdiction over the parties' petitions, despite the fact that the acts alleged occurred on the island territory of Anguilla. On March 4, 2009, Annette P. Richardson and her sons Aaron J. Hourie and Andrew G. Hourie (respondents) filed three separate family offense petitions seeking the entry of orders of protection in favor of them and against Dorothy E. Richardson (appellant), Annette's mother, and her sons' grandmother. The alleged family offenses included, inter alia, assault, harassment, and menacing. In their respective petitions, the respondents described how they were related to the appellant and asserted that the parties all resided together in a home in Elmont, Nassau County. The petitions detailed certain incidents which allegedly occurred on February 19, 2009, on the island of Anguilla. According to the respondents, the appellant pushed Annette to the floor twice, causing her to hurt her back and hit her head. The appellant allegedly was screaming, yelling, and cursing at Annette during the assault. In addition, the appellant allegedly used a glass bowl to strike Andrew on the head, causing injuries. Further, the appellant allegedly chased Aaron with a meat cleaver and threw an ashtray at him, which hit him in the back. On March 6, 2009, the appellant filed three of her own family offense petitions seeking orders of protection in her favor and against the respondents. The appellant alleged that on or about February 14, 2009, also in Anguilla, the respondents committed the family offenses of, inter alia, aggravated harassment in the second degree, harassment in the first degree, attempted assault, and menacing in the third degree. During an initial appearance before the Family Court, the appellant's counsel objected to the court's exercise of subject matter jurisdiction because the alleged offenses occurred in Anguilla. The Family Court held that "the fact that this took place in the West Indies is no different from it taking place in Pennsylvania, Virginia, or Vermont. They're [all residents] of Nassau County and they're entitled to protection from future occurrences. Family Orders of Protection… are to prevent further hostility and further assault, attempted assault,… et cetera."On June 24, 2009, after a hearing, the Family Court found that the respondents proved by clear and convincing evidence that the appellant had committed certain family offenses against them and granted the respondents' respective petitions. The Family Court also entered three two-year orders of protection on behalf of the respondents and against the appellant. The orders of protection directed the appellant to stay away from each of the respondents and to refrain from assaulting, stalking, and similar conduct. In addition, the Family Court issued three orders of dismissal which dismissed the appellant's three petitions. As a threshold matter, the court held that Family Court acquired personal jurisdiction over the appellant, as she appeared before the Family Court without challenging personal jurisdiction. Additionally, the appellant affirmatively sought the entry of orders of protection against the respondents (citing Family Ct Act §167; CPLR 320; cf. Matter of El-Sheemy v. El-Sheemy, 35 AD3d 738 [by appearing in article 6 proceeding and seeking custody, the mother waived her claim that the Family Court did not acquire personal jurisdiction over her]). It indicated that appellant's contentions provided the Court with an opportunity to address an issue which did not appear to have been previously addressed by an appellate court in this state: the limits of the subject matter jurisdiction of the Family Court with respect to family offenses which occurred outside of the state, and even outside of the country. In its analysis the court started with the proposition that the Family Court is a court of limited jurisdiction constrained to exercise only those powers conferred upon it by the state Constitution or by statute. Family Court Act §812(2)(b) provides: "[t]hat a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection." Here, the plain language of Family Court Act §812 provides that the Family Court has jurisdiction over family offense proceedings where the petitions allege the commission of certain proscribed acts that occur between spouses or former spouses, or between parent and child or between members of the same family or household. There is no geographic limitation in Family Court Act §812, or elsewhere in the Family Court Act, as to where a family offense is to have occurred in order to confer subject matter jurisdiction upon the Family Court. The next issue was whether the geographic or territorial limitation on the jurisdiction of the criminal court (see generally People v. McLaughlin, 80 NY2d 466, 472 [stating that "for the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the State"]) also limits the jurisdiction of the Family Court. Criminal Procedure Law §20.40(1)(a) provides, in pertinent part, that "[a] person may be convicted in an appropriate criminal court of a particular county, of an offense… when [c]onduct occurred within such county sufficient to establish [a]n element of such offense." The Appellate Division pointed out that Family Court is not a criminal court. Whereas the criminal court's subject matter jurisdiction over family offenses is limited by geography, there is no statutory provision which states that such a geographic limitation also applies to the Family Court. Nothing in the state Constitution, Family Court Act §812, or the legislative history of Family Court Act article 8 requires the predicate acts of a family offense to have occurred in a particular county, state, or country in order for the Family Court to possess subject matter jurisdiction. It noted that its decision was generally consistent with various decisions of the Family Court. However, it held that to the extent that those cases relied upon a "minimum contacts analysis," or suggest that a residual injury within this state is necessary in order to confer subject matter jurisdiction upon the Family Court pursuant to New York's long arm statute (see CPLR 302), such reasoning should not be followed.

Mother Held In Contempt for Violating Anti-Alienation Provision of Judgment.

In Rubin v Rubin, --- N.Y.S.2d ----, 2010 WL 4539522 (N.Y.A.D. 2 Dept.) the parties October 30, 2003 stipulation of settlement was incorporated, but not merged, into their judgment of divorce dated March 26, 2004. With respect to custody and visitation, the stipulation of settlement provided that the parties would share legal custody of the two children, that the mother would have sole physical custody of the children, and that the father would have certain visitation. In addition, pursuant to those provisions, each party was specifically prohibited from doing anything that would have the effect of alienating the children from the other party. The Appellate Division affirmed an order which held the mother in contempt for failure to comply with this provision. It held that to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court's order, with knowledge of that order's terms, thereby prejudicing the movant's rights. Where, a period of incarceration is imposed to vindicate the authority of the court or to compel respect for the court's mandate, the contemnor's willful violation of the court's mandate must be proven beyond a reasonable doubt The father met this burden. At the hearing it was established, among other things, that the mother violated the custody and visitation provisions of the stipulation of settlement by intentionally doing certain things which would have the natural effect of "turn [ing]" the children "away from" the father, and which actually had that effect. However, under the particular facts of this case, a sentence directing the mother's immediate incarceration "would serve no purpose"and the court held that it was appropriate to suspend the sentence subject to the mother's future compliance with the custody and visitation provisions of the stipulation of settlement.

In Thompson v Thompson, --- N.Y.S.2d ----, 2010 WL 4540329 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order which granted the father's petition alleging a violation of a previous order of visitation and suspended the father's obligation to pay child support and related expenses regarding the child, nunc pro tunc from December 24, 2008, unless and until a determination was made that visitation between the father and the child has resumed. In January 2004 the father commenced a proceeding seeking visitation with the parties' who was born in 1996. After a hearing, by order entered January 11, 2006, the Family Court granted the father's petition for therapeutic visitation. On appeal, the Appellate Division modified that order by adding a directive that the father and the child submit to individual therapy (Matter of Thompson v. Yu-Thompson, 41 AD3d 487). Soon after the Family Court entered its order, the father filed a petition alleging violation of the order by the mother. Visits finally commenced in December 2006 and went well, but one month later, the father filed this petition alleging that the mother was not responding to repeated requests to schedule further visitations. During the proceedings on the petition, visitations resumed, but interactions between father and son became progressively more strained, with the child refusing to visit with his father at all or to engage with his father when visits did occur. After a hearing, the Family Court found that the child was so closely allied with his mother and her negative view of the father that "it appears that the hoped-for reconnection between [the child] and his father" was unlikely at that time. Finding that the mother had failed to encourage, and had interfered with, visitation, the Family Court granted the father's violation petition and suspended the father's child support payments until visitation resumes. The Appellate Division held that where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended. Such suspension of child support is warranted only where the custodial parent's actions rise to the level of 'deliberate frustration' or 'active interference' with the noncustodial parent's visitation rights. The evidence at the hearing supported the Family Court's finding that the mother deliberately frustrated the child's court-ordered visitation with his father such that suspension of child support payments until visitation resumed was warranted. There was evidence that the mother communicated her enmity towards the father to the child, made inappropriate disclosures concerning the parties' history, and failed to encourage and facilitate regular visitation, missing numerous scheduled visitations and ultimately supporting the child's decision to refuse visitation. The evidence supported the finding that the mother, by her example, her actions, and her inaction, deliberately frustrated visitation by manipulating the child's loyalty and orchestrating and encouraging the estrangement of father and son.

First Department Holds Prenuptial Agreement May Contain Enforceable Waiver of Interest in Retirement Assets.

In Strong v Dubin,--- N.Y.S.2d ----, 2010 WL 1905004 (N.Y.A.D. 1 Dept.) the First Department found, in an opinion by Justice Andrias, that the parties' prenuptial agreement contained an enforceable waiver of defendant wife's interest in the marital portion of plaintiff husband's retirement assets. In analyzing this issue it revisited its determination in Richards v. Richards (232 AD2d 303, 303 [1996]), where the court had found that under the Employee Retirement Income Security Act 'only a spouse can waive spousal rights to employee plan benefits, that a fiancee is not a spouse, and that such rights, therefore, cannot be effectively waived in a prenuptial agreement.' Justice Andrias wrote that insofar as the Court's determination in Richards v. Richards (232 AD2d 303 [1996]) would preclude the waiver of pension rights in the event of divorce in a prenuptial agreement, it should not be followed in that it failed to recognize the distinction between waivers of survivor benefits and other pension benefits. For purposes of equitable distribution, a waiver of any interest in a pension as marital property by an otherwise valid prenuptial agreement is not prohibited by The Employee Retirement Income Security Act of 1974 (ERISA) (29 USC 1001 et seq. ), as amended by the Retirement Equity Act of 1984 (REA) (citing Moor-Jankowski, 222 AD2d at 423; Edmonds v. Edmonds, 184 Misc 2d 928 [Sup Ct, Onondaga County 2000]).

Second Department Disapproves of Requirement of Showing Existence of "Special Circumstances" Warranting Discovery from a Nonparty in Order to Successfully Oppose a Motion to Quash a Subpoena Duces Tecum Served on That Nonparty

In Kooper v Kooper, --- N.Y.S.2d ----, 2010 WL 1912142 (N.Y.A.D. 2 Dept.) the appeal considered the principles governing the discovery of documents from nonparties pursuant to CPLR 3101(a)(4). It provides that the party seeking disclosure must give notice stating "the circumstances or reasons such disclosure is sought or required" from the nonparty. The question before the court was whether a party must establish the existence of "special circumstances" warranting discovery from a nonparty in order to successfully oppose a motion to quash a subpoena duces tecum served on that nonparty? Justice Angiolillo, in the opinion for the court, noted that many of the cases of the Second Department continued to apply that standard after CPLR 3101(a)(4) was amended to remove the requirement that discovery from a nonparty be obtained only "where the court on motion determines that there are adequate special circumstances." and concluded: “We hereby disapprove the further application of the "special circumstances" standard in this context.” (Click here for complete discussion)

Court of Appeals Reaffirms Alison D, and Rejects Parenthood by Equitable Estoppel But Recognizes Partner As Parent By Giving Full Faith and Credit to Vermont Civil Union

In Debra H v Janice R, ___NY3d___, 2010 WL 1752168 (N.Y.) the Court of Appeals reaffirmed it holding in Alison D v. Virginia M. (77 N.Y.2d 651 [1991] ), that only a child's biological or adoptive parent has standing to seek visitation against the wishes of a fit custodial parent. It rejected the argument that Matter of Shondel J. v. Mark D. (7 N.Y.3d 320 [2006] ) endorsed a nonbiological or nonadoptive parent's right to invoke equitable estoppel to secure visitation or custody notwithstanding Alison D and held that Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in the wake of domestic breakups. However, because Debra H. and Janice R. entered into a civil union in Vermont before M.R.'s birth, it reversed the Appellate Division's for reasons of comity, holding that Debra H. was M.R.'s parent under Vermont law and, as a matter of comity she was his parent under New York law as well, thereby conferring standing for her to seek visitation and custody in a best-interest hearing. The Court limited its ruling, which did not resolve whether New York extends comity to the civil union for other purposes. It decided only that New York will recognize parentage created by a civil union in Vermont. (Click here for complete discussion)

Court of Appeals Holds Equitable Estoppel May Be Used by Biological Father to Prevent Child's Mother from Asserting Biological Paternity, When Mother Has Acquiesced in the Development of a Close Relationship Between the Child and Another Father Figure, and it Would Be Detrimental to the Child's Interests to Disrupt That Relationship.

In Matter of Juanita A, v Kenneth Mark N., ___NY3d___, 2010 WL 1752194 (N.Y.) the Court of Appeals, in an opinion by Judge Pigott, held that under the circumstances of this case, where another father-figure is present in the child's life, a biological father may assert an equitable estoppel defense in paternity and child support proceedings. The doctrine of equitable estoppel may be used by a purported biological father to prevent a child's mother from asserting biological paternity, when the mother has acquiesced in the development of a close relationship between the child and another father figure, and it would be detrimental to the child's interests to disrupt that relationship. (Click here for complete discussion)

Court of Appeals Holds Family Court Has Subject Matter Jurisdiction to Adjudicate Support Petition Brought Pursuant to "UIFSA" by Biological Parent Seeking Child Support from Former Same-sex Partner.

In the Matter of H.M. v. E.T.  ___NY3d___, 48 opn 10 (2010) the Court of Appeals, in an opinion by Judge Ciparek, held that the Family Court has subject matter jurisdiction to adjudicate a support petition brought pursuant to the Uniform Interstate Family Support Act ("UIFSA") (Family Ct Act art 5-B) by a biological parent seeking child support from her former same-sex partner. The Court concluded that because H.M. asserted that E.T. was the child's parent, and was chargeable with the child's support, the case was within the Family Court's Article 4 jurisdiction. It did not decide whether it was also, as the Support Magistrate and the Appellate Division dissent concluded, within that Court's Article 5 jurisdiction. Nor did it decide the merits of H.M.'s support claim. (Click here for complete discussion)

Court of Appeals Holds Egregious Misconduct Must Be an Exceptional Situation, Due to Outrageous or Conscience-shocking Conduct. Absent Those Circumstances, Liberal Discovery on Issues of Marital Fault, Should Not Ordinarily Be Permitted.

In Howard S v Lillian S, ___NY3d ___, No. 71 (2010) the Court of Appeals held that, at a minimum, in order to have any significance at all, egregious conduct must consist of behavior that falls well outside the bounds of the basis for an ordinary divorce action. This is not to say that there can never be a situation where grounds for divorce and egregious conduct will overlap. However, it should be only a truly exceptional situation, due to outrageous or conscience-shocking conduct on the part of one spouse, that will require the court to consider whether to adjust the equitable distribution of the assets. The Court cited, as examples, a case involving the attempted bribery of the trial judge and a case involving a vicious assault of spouse in presence of the children. Absent these types of extreme circumstances, courts are not in the business of regulating how spouses treat one another. In a footnote the Court pointed out that to the extent that the Appellate Division opinion can be read to limit egregious conduct to behavior involving extreme violence, the definition should not be so restrictive. The majority opinion appears to have adopted the rule of the First and Second Departments that a party is not entitled to discovery on the issue of fault. (Click here for complete discussion)

Laws of 2010, Ch. 32 amended the automatic restraints provisions of Domestic Relations Law, Section 236 [B][2][b][2], to exempt from the automatic restraints imposed by that section upon the commencement of a matrimonial action, payments made to a party who is already in pay status at the time that the action is commenced.
Subdivision (2) now provides as follows: (2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court; except that any party who is already in pay status may continue to receive such payments thereunder.

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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Third Department Distinguishes Bush and Finds Exception to Rule That Absent Stipulation No Pendente Lite Counsel Fee Award Without A Hearing

In Lang v Lang, --- N.Y.S.2d ----, 2010 WL 1375285 (N.Y.A.D. 3 Dept.) the parties were married in 1991 and had two minor children. Plaintiff commenced a divorce action in 2003. In 2004 and 2007, plaintiff was awarded interim counsel fees from defendant in the total amount of $50,000. In May 2008, plaintiff moved, in part, seeking an upward modification of pendente lite maintenance and support and also sought an additional award of interim counsel fees in the amount of $50,000. Without conducting a hearing, Supreme Court denied all relief sought, but granted plaintiff interim counsel fees in the amount of $25,000. The Appellate Division affirmed. It noted that in support of her application, plaintiff argued that additional counsel fees were required as a result of defendant's lack of cooperation in providing discovery, and the additional amount would be sufficient to take the case through the trial of this action. Plaintiff provided Supreme Court with counsel's billing history. Defendant took issue with certain fees charged by plaintiff's counsel, and disagreed with the assertion that he failed to provide discovery. He asserted that plaintiff, who was college-educated, chose to remain underemployed. The Appellate Division found that in granting plaintiff an award of interim counsel fees of $25,000, without a hearing, Supreme Court was familiar with this "highly contentious action for divorce" since 2004, and the court had a sufficient evidentiary basis to assess plaintiff's application. The court distinguished this case from Bush v. Bush, 46 A.D.3d 1140, 1141 [2007], noting that the proof submitted concerning the financial circumstances of the parties was limited to written submissions by respective counsel. The record contained information regarding the assets and liabilities of each party, including affidavits from each party and their statements of net worth. In addition to the procedural posture of the case, Supreme Court acknowledged and took into consideration the disparity of income and financial circumstances of the parties--plaintiff's annual income was approximately $77,000 ($59,280 of which was child and spousal support) and defendant's annual income was $286,000. Supreme Court noted that plaintiff had expended more than $100,000 on counsel fees from an advance on her equitable distribution and from borrowed funds and, at the time of her application, owed her attorneys $19,000 in legal fees. The court also noted that defendant's net worth increased from $5 million when the action commenced to approximately $8 million in 2008. It held that while it is true that a final award of counsel fees cannot be made "without a hearing in the absence of a stipulation consenting to a determination upon written submissions" (citing Redgrave v. Redgrave, 304 A.D.2d 1062, 1066 [2003] ), the court pointed out that it had previously permitted interim counsel fee awards without a full evidentiary hearing (citing Dane v. Dane, 260 A.D.2d 817, 819 [1999] ). It found that the Third Department cases cited by defendant were inapposite since, procedurally, those cases did not contemplate any further proceedings to address claimed inequities with the interim award (citing Bush v. Bush, 46 A.D.3d at 1141, 848 N.Y.S.2d 721; Yarinsky v. Yarinsky, 2 A.D.3d 1108, 1110 [2003]; Redgrave v. Redgrave, 304 A.D.2d at 1066). Significantly, it indicated that in this case ”the ultimate amount of counsel fees awarded plaintiff, and if needed, any adjustment, can be resolved at the trial of the underlying divorce action (see Coons v. Coons, 161 A.D.2d 924, 924 [1990] )”. In keeping with the legislative intent of Domestic Relations Law 237(a) it concluded that, in this case, Supreme Court did not err in awarding interim counsel fees without first conducting an evidentiary hearing.

Fourth Department Holds that In Calculating Income For Child Support Purposes Court is not required to use reported income but, rather, may base its determination on parties actual income and ability to support the child

In Eberhardt - Davis v Davis, --- N.Y.S.2d ----, 2010 WL 988486 (N.Y.A.D. 4 Dept.), the Appellate Division affirmed a judgment of divorce that directed the father to pay child support to the mother of $100 per week. It held that contrary to the contention of the father, Supreme Court properly determined that the parties had a shared custody arrangement and that he was the noncustodial parent. It pointed out that where "the parents' custodial arrangement splits the child's physical custody so that neither can be said to have physical custody of the child for a majority of the time, the parent having the greater pro rata share of the child support obligation should be identified as the noncustodial parent for the purpose of child support regardless of the labels employed by the parties. In light of the parties' agreement to maintain shared, equal custody of the child, the father failed to establish that he would maintain physical custody of the child for a majority of the time. The Appellate Division held that the court properly calculated the amount of child support and the parties' respective shares thereof. In calculating the parties' income for child support purposes, a court is not required to use reported income but, rather, may base its determination on the parties] actual income and ability to support the child (Stanley v. Hain, 38 A.D.3d 1205, 1206, 833 N.Y.S.2d 344). Inasmuch as the mother was receiving a higher salary at the time of the hearing than she had received the previous year, the court was not required to determine her income based on her federal tax return for the previous year.

In Poberesky v Poberesky, --- N.Y.S.2d ----, 2010 WL 910466 (N.Y.A.D. 1 Dept.) the Appellate Division increased the maintenance awarded from $3,700 per month to $4200 a month, and affirmed the direction that defendant be credited for pendente lite maintenance overpayments. It found that in concluding that "[t]here is no life style that must be maintained here," the Special Referee focused disproportionately on the parties' standard of living during the first eight years following their immigration to this country from the Soviet Union and failed to give due consideration to their standard of living during the seven years before the commencement of this action. It agreed with Supreme Court that the defendant should be reimbursed for any excess temporary maintenance payments from the sums awarded to the plaintiff in equitable distribution (citing Johnson v.. Chapin, 49 AD3d 348, 350 [2008] ["equity requires that the husband be awarded a distributive credit for ... the amount that his pendente lite support payments exceeded what he would have been required to pay consistent with the final maintenance award"] ). In determining defendant's maintenance obligations, the Special Referee properly considered his primary salary only, crediting defendant's testimony that he had worked overtime and taken on additional jobs to enable his daughter to graduate from private college without debt and thereafter continued to support her for a time, that he had planned to reduce his workload but was under financial pressure supporting two families, and that he was 60 years old. However, it found the monthly maintenance award of $3,700 inadequate and increase the award as indicated. It also held that Plaintiff, who was now eligible for Medicare, failed to identify any special medical needs requiring an additional award for medical expenses or health insurance coverage.

In the Matter of Anthony J. v David K. 70 A.D.3d 1220, 895 N.Y.S.2d 245 (3 Dept 2010) Petitioner, who was incarcerated, was the biological father of two of the three children in this proceeding (born 1999 and 2001). Respondent Denise K. ( mother) was the mother of all three children and married to respondent David K. (stepfather), who was the biological father of the third child (born in 2006). Petitioner filed a family offense petition alleging that the stepfather had choked and assaulted one of petitioner's children (child). After a fact-finding hearing, Family Court found that the stepfather had acted "in a harassing manner" and that a family offense had occurred. The court issued an enabling order and an order of protection directing the stepfather to refrain from using corporal punishment directed toward petitioner's children. The stepfather, supported by the mother, appealed both orders. The Appellate Division reversed. It found that the stepfather and the mother testified without contradiction that, after being sent to his room, the child became upset and swore at the stepfather. In response, the stepfather "grabbed" or "squeezed" the child's shoulder and told him to stay in his room. The mother and stepfather testified that the child was not bruised or otherwise injured. The incident was investigated by local police, who filed no charges, and by the local Department of Social Services DSS), which concluded that there was no credible evidence of abuse or neglect Family Court made a factual finding that, after the child "got a little bit out of control [and] used some very inappropriate language," the stepfather "sought to try and get him under control by grabbing his shoulder." A respondent's conduct forms the basis for a family offense predicated on harassment in the second degree when "with intent to harass, annoy or alarm another person ... [he or she] strikes, shoves, kicks or otherwise subjects such other person to physical contact" (Penal Law 240.26[1]; see Family Ct. Act 812[1] ). The court found the proof of intent insufficient and, thus, petitioner did not meet his burden of establishing by a fair preponderance of the evidence that the stepfather's conduct constituted this offense (Family Ct. Act 832). The Court pointed out that a child's caretaker may use reasonable physical force for the purpose of discipline (see Penal Law 35.10[1]; see generally Matter of Collin H., 28 A.D.3d 806, 809, 812 N.Y.S.2d 702 [2006] ). The proof did not establish that the stepfather used unreasonable force or that his conduct was undertaken for any purpose other than discipline. In the absence of proof revealing the requisite intent, no family offense was established, and the order of protection was improperly issued.

In Barany v Barany, --- N.Y.S.2d ----, 2010 WL 733133 (N.Y.A.D. 2 Dept.) following almost seven years of marriage, the plaintiff and the defendant were divorced by judgment entered May 5, 2003, which incorporated, but did not merge with, the parties' separation agreement, whereby, among other things, the plaintiff retained custody of the parties' daughter, and the defendant was directed to pay child support in the sum of $250 per week. As a result of the defendant's allegedly sporadic payments of child support, the plaintiff moved to hold the defendant in contempt of court pursuant to Domestic Relations Law 245 and Judiciary Law 753, for his contumacious failure to pay child support, thus accumulating arrears of $52,155. Although the defendant failed to bring a cross motion or plenary action to vacate or set aside the separation agreement, he nonetheless asserted in his opposition papers that the separation agreement's child support provisions were invalid and unenforceable for failure to comply with the recitation requirements of the Child Support Standards Act. The Supreme Court denied the plaintiff's contempt motion and sua sponte vacated the child support provisions as unenforceable, setting the matter of child support, childcare expenses, and health care expenses down for a de novo hearing. The plaintiff unsuccessfully moved for reargument and renewal of that order. These appeals ensued from the resulting orders. The Appellate Division held that under the circumstances, the Supreme Court erred in sua sponte vacating the child support provisions of the parties' separation agreement. The proper vehicle for challenging the propriety of child support provisions contained in a separation agreement or stipulation of settlement incorporated, but not merged, into a divorce judgment is by either commencing a separate plenary "action in which such relief is sought in a cause of action" or by motion within the context of an enforcement proceeding. Here, the defendant neither interposed a cross motion, nor commenced a separateplenary action, seeking to vacate or set aside the purportedly unenforceable child support provisions. Thus, the Supreme Court erred in sua sponte vacating the child support provisions in the separation agreement and denying the plaintiff's contempt motion. The matter was remitted to the Supreme Court, for a determination of the plaintiff's motion on the merits.

In Beudert-Richard v Richard, --- N.Y.S.2d ----, 2010 WL 157221 (N.Y.A.D. 1 Dept.) Pamela and Adam purchased the cooperative apartment in 1978, while they were married. They took title to the co-op shares as joint tenants with rights of survivorship rather than as tenants by the entirety. [Prior to the amendment of EPTL 6-2.1 and 6-2.2 on January 1, 1996 (L 1995, ch 480), co-op shares were treated as personalty rather than realty, and a married couple's ownership interest in such shares could be as joint tenants or as tenants in common, but could not be as tenants by the entirety (see EPTL 6- 2.1; Stewart v. Stewart, 118 A.D.2d 455, 457 [1986] )]. On April 12, 1989, Pamela and Adam entered into a separation agreement which provided for distribution of the marital property. The paragraph of the separation agreement concerning the apartment erroneously stated that the couple owned the apartment "as tenants by the entirety," and gave Pamela exclusive possession during their child's minority, after which the apartment was to be sold and the net proceeds split. Their December 1989 divorce judgment, which incorporated but did not merge their separation agreement, stated that the marital property was to be distributed pursuant to the separation agreement. Adam thereafter married plaintiff Michele. Adam died on September 23, 1999, and his will bequeathed to Michele his ownership interest in the apartment. At the time of Adam's death, the obligation to sell the apartment under the separation agreement had not yet been triggered because his child with Pamela was then 16 years old. After Adam and Pamela's son completed college and became emancipated, Michele and Pamela entered into an agreement dated November 21, 2007, which provided that Pamela was the owner of a one-half interest in the apartment and Michele was the beneficiary of Adam's one-half interest in the apartment, and both agreed to sell the apartment and split the net proceeds. In January 2008, Michele and Pamela, as sellers, entered into a contract to sell the apartment for $1,385,000. However, in February, 2008, the managing agent of the cooperative insisted that the contract be amended to omit Michele's name from the contract. Pamela then filed an application seeking a determination that the estate did not have a legal right or interest in the apartment or the proceeds of its sale, while Michele commenced this action seeking enforcement of the separation agreement and the November 2007 contract. The Supreme Court granted Pamela's motion, directing that Michele was not entitled to share in any portion of the proceeds of the sale of the apartment, rescinding the 2007 agreement and dismissing the complaint. Relying on Matter of Violi (65 N.Y.2d 392 [1985] ), the motion court reasoned that at the time of Adam's death the relevant provision of the separation agreement was merely an executory contract to divide the proceeds when a sale occurred that did not alter the form of its ownership, and since Adam's contract right to the sale of the co-op was not enforceable at the time of his death, his estate could not claim it (citing Brower v. Brower, 226 A.D.2d 92 [1997] ). The First Department, in an opinion by Justice Saxe, reversed. He noted that Matter of Violi involved a situation where spouses who owned their residence as tenants by the entirety entered into a separation agreement pursuant to which they agreed to sell their residence within four years and split the net proceeds, but the wife died a year later, before the parties were divorced, with the residence still unsold. Since the parties had not altered their tenancy by the entirety either by a judicial decree such as a divorce judgment, or by a written instrument satisfying General Obligations Law 3- 309 by clearly expressing an intent to convert the form of tenancy in which the property was held, the tenancy had continued to be held by the entirety; so, upon the wife's death, the husband became seized of the whole property. Had the parties in Violi actually gotten the divorce before the wife's death, the property would have automatically been held as a joint tenancy and the wife's estate would have been entitled to her share. In Brower v. Brower (226 A.D.2d 92 [1997], supra ), a small but important difference in the facts led to a different result from that in Violi. Like Violi, the parties held the marital residence by the entirety, and, like Violi, they entered into a separation agreement providing for its sale, but one party died before either the sale or the divorce. However, unlike Violi, in Brower, "[t]he date prescribed in the agreement for defendant [wife] to vacate the property so that it could be sold preceded decedent's death," and therefore the husband in Brower had a viable breach of contract claim against the surviving wife at the time of his death, which viable right entitled his estate to seek specific performance of the agreement after his death. Justice Saxe stated that in the present case, unlike either Violi or Brower, the parties actually obtained a final judgment of divorce, incorporating the separation agreement in which they expressed their mutual belief that they held the co-op shares by the entirety and the concomitant, if implicit, expectation that upon the divorce their tenancy would be automatically converted into a tenancy in common. While a married couple's tenancy by the entirety automatically converts into a tenancy in common upon entry of a divorce judgment, the same does not hold true for a married couple's joint tenancy. However, General Obligations Law 3-309 allows a married couple to freely "convey or transfer real or personal property directly, the one to the other, without the intervention of a third person." Therefore, as the court observed in Matter of Violi, a married couple may convert the form of tenancy in which they hold property by expressing in a writing an intent to do so. While Adam and Pamela did not specifically state in their separation agreement an intent to convert their ownership of the co-op from joint tenancy to a tenancy by the entirety, as they had a right to do, their failure to do so appeared to be based on their (albeit incorrect) understanding that their ownership already took that form. There was little doubt from the language of their separation agreement that Adam and Pamela intended, and assumed, that upon entry of their divorce judgment they would automatically become tenants in common without any right of survivorship. Not only was there no indication that Adam intended to waive his (or his estate's) property interest in the co-op, or that Pamela thought he had done so, but the record contained numerous indications to the contrary. The spouses' mutual expectation that entry of the divorce judgment would result in a tenancy in common was apparent from the language of their separation agreement. That Pamela and Adam both proceeded in the belief that the divorce would convert their ownership of the apartment into a tenancy in common was established by Pamela's entry into the 2007 agreement to sell the apartment, which stated "Michele is the Executrix of the Estate of Adam Richard who died owning the other one-half ( ½ ) interest in said apartment." Pamela did not claim the sole right of survivorship until after the managing agent of the cooperative insisted that the contract of sale be amended to provide that Michele's name be omitted from the contract. Moreover, Adam's will, where he stated, "I give, devise and bequeath to my wife, Michele F. Beudert, my entire ownership interest in [the apartment], to be hers outright," reflected his understanding that upon his divorce from Pamela the form of their ownership of the co-op would leave them each with an ownership interest in the event of his death. There was substantial evidence that the parties intended that following the divorce, their ownership of the co-op would automatically become a tenancy in common. At a minimum, the record evidence raised issues of fact as to whether the language of the separation agreement demonstrated an understanding that the ownership of the apartment was intended to be altered upon their divorce so as to eliminate any existing right of survivorship. This issue alone precluded the entry of final judgment declaring that Adam's estate was not entitled to share in any portion of the proceeds of the sale of the apartment. The order and judgment which rescinded the 2007 agreement to sell the cooperative apartment and share equally in the proceeds and dismissed the complaint seeking to enforce that agreement, was reversed on the law, the rescission of the agreement vacated, the complaint reinstated, and the matter remanded for further proceedings. Justice Moskowitz dissented.

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