Domestic Relations Law § 177 has been repealed, and replaced by Domestic Relations Law § 255, which was signed into law on July 11, 2009. It becomes effective 90 days after the date it was signed into law and applies to all actions in which judgment has not been entered as of the effective date. (See Laws of 2009, Ch 143)

Domestic Relations Law § 255, subdivision 1 provides that prior to signing a judgment of divorce or separation, or a judgment annulling a marriage or declaring the nullity of a void marriage, the court must ensure that both parties have been notified, at such time and by such means as the court determines, that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan. In the case of a defaulting defendant, service upon the defendant, simultaneous with the service of the summons, of a notice indicating that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan, shall be deemed sufficient notice to a defaulting defendant. (Click here to download a suggested Notice of Possible Loss of Eligibility For Health Care Coverage)

Domestic Relations Law § 255, subdivision 2 provides that if the parties have entered into a stipulation of settlement or agreement, on or after the effective date of Section 255, resolving all of the issues between the parties, the stipulation of settlement or agreement must contain a provision relating to the health care coverage of each party. The provision must either: (a) provide for the future coverage of each party, or (b) state that each party is aware that he or she will no longer be covered by the other party's health insurance plan and that each party shall be responsible for his or her own health insurance coverage, and may be entitled to purchase health insurance on his or her own through a COBRA option, if available. The requirements subdivision 2 may not be waived by either party or counsel. In the event that it is not complied with, the court must require compliance and may grant a thirty day continuance to afford the parties an opportunity to procure their own health insurance coverage. (Click here to download a suggested Agreement-Stipulation Provision for Compliance with Domestic Relations Law § 255)

Domestic Relations Law 236 [B] [2] was amended, by Laws of 2009, Chapter 72, § 1, effective September 1, 2009, to add a subdivision b, which provides for automatic restraining orders that come into effect upon the commencement of a matrimonial action and bind both parties. (Click here to download a suggested form notice of automatic restraining orders)

Domestic Relations Law § 236 (B) (2) (b) provides that the plaintiff shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in subdivision (b). This paragraph places upon the plaintiff a duty to serve upon the defendant automatic orders which bind both parties. The automatic orders are binding upon the plaintiff upon the commencement of the action by the filing of the summons or summons and complaint. They are binding upon the defendant upon service of the Summons or ‘Summons and Complaint. The automatic orders remain in full force and effect during the pendency of the action, unless terminated, modified or amended by further order of the court, upon motion of either of the parties, or upon written agreement between the parties duly executed and acknowledged. The automatic orders are as follows: (1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.(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. (3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action. (4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical hospital and dental insurance coverage in full force and effect. (5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect. (Click here to download a suggested form notice of automatic restraining orders)

Laws of 2009, Ch 32, repealed Family Court Act 516 Relating to Compromise Agreements in Paternity Proceedings, effective May 19, 2009.

Court of Appeals Holds Non-custodial Parent Does Not Retain Decision-making Authority Pertaining to Education of Child Where Custodial Parent Granted Exclusive Custody of the Child and Decree and Custody Order Are Silent as to Right to Control Such Decisions.

In Fuentes v Board of Educ. of City of New York, --- NY3d ----, 2009 WL 1148636 (2009) Plaintiff Jesus Fuentes and his wife were divorced in 1996. Family Court entered an order granting the wife exclusive custody of the three children, including a son, M.F., who, due to a genetic disorder, was legally blind. M.F. attended public school in New York City and received special education services to accommodate his disability. In 2000, plaintiff believed that M.F.'s special education services and accommodations were inadequate and requested a reevaluation. When the Committee on Special Education for the Hearing, Handicapped, and Visually Impaired responded that M.F's services were adequate, plaintiff requested a hearing from the Impartial Hearing Office of the New York State Department of Education to review that determination. In 2001, plaintiff's request for a hearing was denied based on his status as the non-custodial parent of M.F. The Office concluded that because plaintiff was not the "person in parental relation" (Education Law 3212), he did not have the right to make educational decisions pertaining to M.F. and, consequently, did not have a right to request a hearing. Plaintiff then commenced an action in the United States District Court, alleging, among other things, that he was denied his right under the federal Individuals with Disabilities Education Act (IDEA) to a hearing to review the determinations of the Board of Education. After a dismissal, appeal, and remand on issues not pertinent to the certified question, the district court dismissed plaintiff's case for lack of standing under the IDEA. On appeal, the United States Court of Appeals for the Second Circuit found that no precedent from the Court of Appeals directly addressed the dispositive issue and certified a question, which the Court of Appeals reformulated: " Whether, under New York Law, the non-custodial parent of a child retains decision-making authority pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions. " As reformulated the certified question was answered in the negative. The Court of Appeals noted that it is well settled in the Appellate Division that, absent specific provisions in a separation agreement, custody order, or divorce decree, the custodial parent has sole decision-making authority with respect to practically all aspects of the child's upbringing. It declined to recognize an implied right of non-custodial parents to exercise decision-making authority with respect to their child's education notwithstanding the custody order's silence on this subject and emphasized the importance of parties determining these issues at the time of separation or divorce. The Court noted the distinction between a non-custodial parent's right to "participate" in a child's education and the right to "control" educational decisions. Generally, there is nothing which prevents a non-custodial parent (even one without any decision making authority) from requesting information about, keeping apprised of, or otherwise remaining interested in the child's educational progress. However, unless the custody order expressly permits joint decision-making authority or designates particular authority with respect to the child's education, a non-custodial parent has no right to "control" such decisions. This authority properly belongs to the custodial parent.

Not Necessary to Plead Justification as Defense to Abandonment Where Not a Claim That Would Be Likely to Take the Plaintiff by Surprise, and Does Not Raise Issues of Fact Not Appearing on the Face of the Complaint

In Gulati v Gulati, 60 A.D.3d 810, 876 N.Y.S.2d 430 (2 Dept 2009) the Appellate Division pointed out that pursuant to DRL 170(2), an action for a divorce on the ground of abandonment may be maintained when the defendant abandons the plaintiff for a period of one or more years. To establish entitlement to a divorce on this ground, a plaintiff must demonstrate that the defendant unjustifiably and without the plaintiff's consent abandoned the plaintiff for a period of one or more years. Here, the plaintiff made a prima facie showing of her entitlement to summary judgment on the ground of abandonment by submitting evidence that the defendant moved out of the marital residence in April 2003 without her consent, and without justification. In opposition, the defendant submitted evidentiary proof sufficient to raise triable issues of fact as to whether an abandonment occurred. The submissions raised issues of fact as to whether the plaintiff consented to his initial departure from the marital residence and to his continued absence from the home, and whether his actions were justified. Accordingly, plaintiff's motion for summary judgment on her cause of action for a divorce based on abandonment should have been denied. The Court rejected plaintiff's contention that the defendant waived the right to argue that he was justified in leaving and remaining away from the marital residence because he did not plead justification as an affirmative defense in his answer. Since abandonment cannot be established merely by evidence of a separation, a plaintiff seeking a divorce on this ground has an obligation to prove, as an element of his or her prima facie case, that the defendant unjustifiably left and remained away from the marital residence for a period of more than one year. Although the Court has recognized that it is permissible to plead justification as an affirmative defense (see Del Galdo v. Del Galdo, 51 A.D.2d 741, 379 N.Y.S.2d 479), it held that it is not necessary that it be so pleaded where, as here, it is not a claim that would be likely to take the plaintiff by surprise, and does not raise issues of fact not appearing on the face of the complaint (see CPLR 3018[b] ). In this regard, the Court noted that the plaintiff alleged in her complaint that the defendant had abandoned the marital residence without cause or provocation, and the defendant denied these allegations in his answer. Under these circumstances, the defendant, who has not defaulted, should not be precluded from arguing that he was justified in leaving and remaining away from the marital residence.

Error to Permit "Licensed Mental Health Counselor"To Offer Opinion Based in Part upon Interviews with Collateral Sources Who Did Not Testify

In Matter of Murphy v Woods,--- N.Y.S.2d ----, 2009 WL 1565164 (N.Y.A.D. 4 Dept.) the Appellate Division held that Family Court erred in permitting a "licensed mental health counselor," who examined the parties' child and was called as a witness by the mother, to offer an opinion that was based in part upon his interviews with collateral sources who did not testify at trial. There are two exceptions to the general rule requiring that opinion evidence be based on facts in the record or on facts personally known to the witness: if the opinion is based upon out-of-court material "of a kind accepted in the profession as reliable in forming a professional opinion or if it comes from a witness subject to full cross-examination on the trial" (Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726, 480 N.Y.S.2d 195, 469 N.E.2d 516). Neither exception applied in this case. At the fact-finding hearing, the expert testified that material portions of his opinion were based not only upon his interviews with the parties, but also were based on his interviews with collateral sources. The Appellate Division was unable to determine the extent to which the expert relied on those collateral source interviews in forming his opinion. Furthermore, the collateral sources did not testify at trial, and there was no evidence establishing their reliability. The court could not conclude that the admission of the expert's opinion was harmless error because, without the admission of that opinion or the testimony of the collateral sources, there was insufficient evidence in the record to support the court's determination. It reversed the order and remitted the matter to Family Court for a new hearing before a different adjudicator.

In Mahoney-Buntzman v Buntzman, --- N.Y.3d ----, 2009 WL 1227875 (2009) the Court of Appeals held that payments made to a former spouse and/or children of an earlier marriage, even if made pursuant to court order, are not the type of liabilities entitled to recoupment. In addition, it held that a student loan, which is both incurred and fully paid for during marriage, is a marital obligation for which responsibility is to be shared between the parties. It also held that as a matter of public policy, a "party to litigation may not take a position contrary to a position taken in an income tax return." (Click here for expanded discussion)

In Johnson v Chapin, - N.Y3d -, 2009 WL 1227869 (2009) the Court of Appeals, in an opinion by Judge Pigott, held that when a pendente lite award of maintenance is found at trial to be excessive or inequitable, the Court may make an appropriate adjustment in the equitable distribution award. However, it rejected the husband's claim that he should be entitled to a credit for excess child support payments pointing out that it has long been held that there is a "strong public policy against restitution or recoupment of support overpayments". (Click here for expanded discussion)

Failure to Provide “Paper Trail” Documenting Source of Money Used to Purchase Marital Residence Not Fatal to Separate Property Claim. Court Did Not Violate DRL 248 by Ordering That Maintenance Would Terminate in the Event That Wife Resided with an Unrelated Adult Male for More than 30 Days

In Juhasz v Juhasz, --- N.Y.S.2d ----, 2009 WL 281303 (N.Y.A.D. 4 Dept.) the parties were married in 1990 and had three minor children. The Appellate Division held that Supreme Court properly determined that a brokerage account with Julius Baer (JB account) was defendant's separate property inasmuch as it was funded entirely from defendant's premarital sale of stock in a family business. The court erred in failing to credit defendant for his contribution of separate property toward the purchase of the marital residence. A spouse is entitled to a credit for his or her contribution of separate property toward the purchase of the marital residence, including any contributions that are directly traceable to separate property. Before the marriage, defendant purchased a home for $240,000 with funds that he derived from his sale of the stock. During the marriage, defendant contributed $200,000 from the JB account to purchase a vacation home for approximately $450,000, and he secured a mortgage for the balance. That mortgage was also paid with funds from the JB account. The parties subsequently sold both homes and purchased the marital residence for $216,000. The Appellate Division concluded that defendant was entitled to a credit of $216,000 for his contribution of separate property to purchase the marital residence, and modified the amended judgment accordingly. While defendant did not provide a paper trail documenting the source of the money used to purchase the marital residence, nothing in either party's testimony suggested that any other possible source for the money existed. In view of its determination concerning defendant's entitlement to a credit for separate property with respect to the marital residence, the Appellate Division rejected the contention of plaintiff on her cross appeal that she should have been awarded title to the marital residence as a matter of equity. It also rejected defendants contention that he was entitled to a credit for separate property that he contributed for renovations to the marital residence. Although the marital residence was appraised for $420,000 four months prior to the trial, defendant failed to establish that the separate property funds spent on renovations added value to the residence apart from the appreciation in value resulting from market forces over the period of ownership and, if so, the amount by which the value of the property was increased. It also held that Supreme Court properly imputed income to defendant of $180,000 per year. The record established that defendant derived substantial income from his investments. The amount awarded for child support was vacated because the court failed to articulate any basis for that portion of the award based on the parental income exceeding $80,000. It modified the amended judgment by vacating that amount, and remitted the matter to Supreme Court to determine defendant's child support obligation in compliance with the Child Support Standards Act. It concluded that the court properly ordered defendant to continue to pay for the private school education of the children. It also rejected the contention of plaintiff on her cross appeal that the court violated Domestic Relations Law 248 by ordering that maintenance would terminate in the event that she resided with an unrelated adult male for more than 30 days. That section, entitled "Modification of judgment or order in action for divorce or annulment," provides in relevant part that a husband may apply for modification of a judgment of divorce if the wife remarries or if she is "habitually living with another man and holding herself out as his wife, although not married to such man." The court held that here it was concerned with an initial award of maintenance and not an application to modify an existing judgment or order. Inasmuch as courts have the discretionary power to "fashion a fair and equitable maintenance award" it concluded under the circumstances of this case that the condition imposed by the court is not improper (cf. Florio v. Florio, 25 AD3d 947, 950).

 

Misrepresentation That Husband Was Biological Father Did Not Constitute "Egregious Fault"

In Howard S. v. Lillian S., --- N.Y.S.2d ----, 2009 WL 674133 (N.Y.A.D. 1 Dept.) the Appellate Division, in an opinion by Justice Freedman, held that defendant-wife's alleged misrepresentation to her husband that he was the biological father of one of their children, when in fact the child was conceived during her adultery and fathered by her lover, did not constitute "egregious fault" sufficient to be considered in equitably distributing the marital property. According to the verified complaint plaintiff married defendant in May 1997 and they had four children. In February 2004, defendant had an extramarital affair with an unnamed man and became pregnant with a child, Charles, who was born in December 2004. Plaintiff contended that defendant knew or should have known that plaintiff was not Charles's biological father, but concealed that information from him. Plaintiff stated that he "raised Charles as his own child, nurturing him and providing the same financial and emotional support as all his other children." The complaint alleged that in February 2007 defendant began another affair with the named co-respondent which "continues to this day." Defendant also concealed this second adulterous relationship from plaintiff, but in the spring of 2007, she suggested that they separate and enter into a collaborative law process. During this period plaintiff had become suspicious about Charles's parentage, allegedly "due to all the jokes within his and [defendant's] circle of family and friends that Charles looked nothing like him." Without telling his wife, plaintiff in February 2008 arranged for a DNA test of himself and Charles. The test confirmed that plaintiff was not Charles's biological father. Defendant acknowledged that plaintiff was not Charles's biological father, but claimed that she learned this from the DNA test results and denied that she deliberately concealed the truth about Charles's parentage from plaintiff. The complaint asserted causes of action for divorce based on both cruel and inhuman treatment and adultery, and asserts a separate claim based on fraud. As damages for the fraud claim, plaintiff sought to recover his child support expenses for Charles, the fees for the parties' collaborative law process, and profits from the couple's investments "from the time of Charles's conception until the commencement of this action." Defendant answered and counterclaimed for divorce on the ground of abandonment. Defendant moved for an order dismissing or severing the fraud claim; plaintiff cross-moved for "expanded discovery" to prove "defendant's egregious fault," the fraud claim, and her lack of contribution to and dissipation of the marital property. The motion court denied the motion to dismiss or sever the fraud claim, but limited the recoverable damages to plaintiff's share of the fees for the collaborative law process. The court also denied plaintiff's cross motion for expanded discovery as to defendant's marital fault on the ground that defendant's alleged misconduct did not constitute egregious fault and had no bearing on prospective spousal maintenance and equitable distribution.          The Appellate Division pointed out that marital fault may be considered pursuant to clause(d)(13) of DRL 236 (B)(5), the "catchall" provision that allows the court to take "anyother factor" which may be "just and proper" into account. Marital fault can only be considered where the misconduct "is so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship-misconduct that shocks the conscience' of the court, thereby compelling it to invoke its equitable power to do justice between the parties. In Havell v. Islam, 301 A.D.2d 339, 344 [2002], the Court adopted the analysis set forth in McCann v. McCann (156 Misc.2d 540 [1993] ), and concluded that to be deemed egregious, the conduct must callously imperil the value our society places on human life and the integrity of the human body. It noted that the only cases in which reprehensible behavior has been deemed to constitute egregious fault sufficient to affect equitable distribution have involved extreme violence. It noted that egregious fault had also been found in instances of rape, and protracted and severe physical abuse. Conversely, conduct that courts have found not to be egregious include adultery, alcoholism, abandonment , and verbal harassment coupled with several acts of minor domestic violence. Here, defendant's alleged misconduct did not rise to the level of egregious fault, since defendant neither endangered the lives or physical well-being of family members, nor deliberately embarked on a course designed to inflict extreme emotional or physical abuse upon them. The court held that given the absence of egregious fault, the motion court correctly precluded any disclosure in connection withdefendant's marital fault. Justice Nardelli dissented in an opinion.

In Sarlo-Pinzur v Pinzur, --- N.Y.S.2d ----, 2009 WL 387201 (N.Y.A.D. 2 Dept.) Supreme granted the husband's attorney's motion to withdraw as counsel and refused to adjourn the trial further following counsel's withdrawal. Upon his subsequent default in appearing at the trial able distribution, Supreme Court awarded the wife maintenance of $500 per month for four years and equitably distributed the marital property. The Appellate Division dismissed the appeal from the judgment, except insofar as it brought up for review the granting of the husband's attorney's motion to withdraw as counsel and the denying of the husband's request to adjourn the trial, in effect, pursuant to CPLR 321(c). It held that the judgment from which the husband appealed was entered on default, since he left the courtroom as the trial commenced. Although no appeal lies from a judgment entered on the default of the appealing party (CPLR 5511), an appeal from such a judgment does bring up for review those 'matters which were the subject of contest' before the Supreme Court. Here, those matters consisted of the granting of the motion of the husband's attorney to withdraw as counsel and the Supreme Court's denying of the husband's request to adjourn the trial, in effect, pursuant to CPLR 321(c). It pointed out that as a general rule, CPLR 321(c) requires that there be a 30-day stay of all proceedings after counsel is permitted to withdraw over the client's objection. Where, however, the attorney's withdrawal is caused by a voluntary act of the client, the court has the discretion to permit the matter to proceed without such a stay. The husband's counsel moved for leave to withdraw on the ground that the husband had refused to provide financial information necessary to the trial of the case. The motion was properly granted on the basis of the husband's failure to cooperate with his counsel. Supreme Court providently exercised its discretion in refusing to adjourn the trial further. COMMENT: In Warner v Houghton, 43 A.D.3d 376, 841 N.Y.S.2d 499 (1st Dept., 2007), affirmed 10 N.Y.3d 913, 862 N.Y.S.2d 321 (2009) defendant did not appear at a compliance conference and the matter was set down for an inquest on the issue of equitable distribution. After the inquest, at which he did not appear, the court granted a divorce, and made awards concerning the request for equitable distribution and counsel fees. The Appellate Division held that while the issue of whether the divorce was properly granted may not be reviewable, the distribution award was a separate issue, and was still subject to review, even after a default. It found that the defendant was improperly precluded and modified the awards. On review of submissions pursuant to 22 NYCRR 500.11 the Court of Appeals held that CPLR 5511 does not bar review of the equitable distribution components of a divorce judgment where, as here, defendant was improperly precluded from contesting the awards. It held that the Appellate Division did not abuse its discretion as a matter of law in vacating Supreme Courts preclusion order.

Failure to Recoup Value from Unprofitable Business Operated During Marriage Constitutes Wasteful Dissipation of That Asset

In Scala v Scala, --- N.Y.S.2d ----, 2009 WL 281681 (N.Y.A.D. 4 Dept.) Plaintiff appealed from a judgment of divorce that confirmed the report of the Matrimonial Referee appointed to hear and report and ordered plaintiff husband to pay maintenance to defendant wife. Plaintiff contended that the Referee erred in precluding him from testifying concerning the nature of his alleged physical injuries based on his willful failure to furnish requested medical authorizations. The Appellate Division rejected that contention, and concluded under the facts and circumstances of this case that the Referee neither abused nor improvidently exercised his discretion in precluding that testimony. Plaintiff further contended that Supreme Court erred in confirming the Referee's report both to the extent that the Referee found that the closure by plaintiff of his masonry business constituted a wasteful dissipation of assets and to the extent that the Referee valued the business. With respect to wasteful dissipation, the Court pointed out that it had previously stated that the failure to recoup value from an unprofitable business operated during the marriage constitutes wasteful dissipation of that asset (see Baker v. Baker [appeal No. 2], 199 A.D.2d 967, 968). Thus, it necessarily is a wasteful dissipation of assets to fail to recoup the value of a profitable business, such as plaintiff's masonry business. It also rejected the contention with respect to the valuation of the masonry business. The determination of a fact-finder as to the value of a business, if it is within the range of the testimony presented, will not be disturbed on appeal where valuation of the business rested primarily on the credibility of expert witnesses and their valuation techniques. The Referee, whose report was adopted by the court, credited the conclusion of defendant's expert with respect to the value of the business, and plaintiff presented no expert testimony that would support a different valuation. It agreed with plaintiff, however, that the court erred in awarding nondurational maintenance to defendant. Based on the statutory factors, including the parties' respective ages and financial circumstances, it concluded that defendant was entitled to maintenance for 12 years from the date of the judgment.

Nontitled Party Seeking a Distributive Share of Enhanced Earnings Resulting from Law Degree and License must Demonstrate That They Made a Substantial Contribution to the Titled Party's Acquisition of That Marital Asset

In Kriftcher v Kriftcher, --- N.Y.S.2d ----, 2009 WL 262707 (N.Y.A.D. 2 Dept.) Supreme Court awarded the plaintiff wife $828,699.20 as her 40% share of the husbands enhanced earning capacity, an attorney's fee of $30,000, declined to award her maintenance, awarded her $1,229.71 per week in child support, and failed to award her equitable distribution of the husband's bonus for the calendar year 2005, which the husband received in 2006. The Appellate Division found that Supreme Court correctly concluded that the enhanced earnings resulting from the law degree and license obtained by the husband during the marriage were marital property subject to equitable distribution. Nevertheless, it is incumbent upon the nontitled party seeking a distributive share of such assets to demonstrate that they made a substantial contribution to the titled party's acquisition of that marital asset and where only modest contributions are made by the nontitled spouse toward the other spouse's attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse's own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity. Here, the wife's minimal contributions to the husband's obtaining of his degree and license entitled her to a share of only 10% in the enhanced earnings that have resulted. Supreme Court also erred in failing to distribute the husband's bonus for the calendar year 2005, which he received in March 2006 and was in the gross sum of $360,000. Based upon the unrebutted testimony of the forensic expert, the husband's effective income tax rate was 38.25%, and, therefore, the net amount of the husband's bonus was the sum of $222,300. Since the divorce action was commenced on June 28, 2005, the marital portion of that asset was 50% of its net value, or $111,150. Considering all of the statutory factors the wife's equitable share of that marital asset was fixed at 50%, or $55,575. In determining the appropriate amount and duration of maintenance, the court is required to consider, among other factors, the standard of living of the parties during the marriage and the present and future earning capacity of both parties . (Haines v. Haines, 44 A.D.3d 901, 902, 845 N.Y.S.2d 77). Although the wife earned a teaching license during the course of the marriage, she was, at present, primarily a homemaker, who worked only part-time as a substitute teacher earning approximately $10,000 per year. In sharp contrast, the husband was an attorney making approximately $500,000 per year. It held that a maintenance award of $1,000 per week for 10 years was appropriate.

Maintenance Provisions and Interest on Promissory Note Provided in Separation Agreement Set Aside as Unconscionable

In Santini v Robinson, --- N.Y.S.2d ----, 2008 WL 5376525 (N.Y.A.D. 2 Dept.) the parties were married in 1973, and had three children. Their principal assets included their approximately $100,000 equity interest in the marital residence, their Individual Retirement Account and joint bank accounts, the plaintiff's deferred compensation plan, and his future retirement pension, valued at more than $242,000. The plaintiff left the marital residence in July 1991, and in November 1991 the defendant commenced the underlying action for a divorce. The parties entered into a separation agreement dated January 9, 1992. The defendant was represented by an attorney in connection with the negotiation of the separation agreement, while the plaintiff represented himself. At that time, the plaintiff was 42 years old and employed by the County Sheriff's Department, while the defendant was 41 years old, unemployed, and legally blind, albeit able to work part-time and receiving Social Security disability benefits. The parties visited the defendant's attorney twice in connection with the separation agreement, and the attorney advised the plaintiff repeatedly, both in writing and orally, that he should retain separate counsel. The plaintiff testified that he voluntarily signed the agreement on January 9, 1992, although he merely "scanned" the agreement and had not understood the provisions that he read. The agreement prepared by counsel contained the general terms previously agreed upon between the parties during their own negotiations. The separation agreement provided that the marital residence subject to the mortgage, the IRAs and joint bank accounts, and the plaintiff's deferred compensation plan in the form of promissory notes would be distributed to the defendant and that she would receive child support and lifetime maintenance even upon remarriage. Further, the agreement provided that the maintenance payment would be increased by a percentage each time one of the children was emancipated and by an additional 4% per annum. The plaintiff retained his pension, his automobile, some bank accounts, and certain furniture. The agreement was incorporated, but not merged, into a 1992 judgment of divorce. In 1998 the defendant remarried. In March 2000, the plaintiff commenced the action to set aside the separation agreement as unfair, inequitable, and unconscionable. After the Appellate Division reversed an order granting summary judgment dismissing the complaint on the issues of unconscionability and ratification (see Santini v. Robinson, 306 A.D.2d 266), and following that hearing, the Supreme Court, set aside the provisions of the parties' separation agreement awarding the defendant 100% of the plaintiff's deferred compensation and the parties' IRAs, terminated the defendant's exclusive possession of the marital home, limited the plaintiff's obligation for college expenses of the parties' three children to $15,000 per year, terminated the defendant's lifetime maintenance as of the date of her 1998 remarriage, awarded a money judgment to the defendant for all interest payable on a $19,000 promissory note dated January 9, 1992, and awarded a credit of $33,488 to the plaintiff for his maintenance payments after the defendant's remarriage. The Appellate Division modified. It held that Supreme Court erred in setting aside the parties' entire separation agreement as unconscionable since the equitable distribution of the marital property was not manifestly unjust. Pursuant to the separation agreement, the defendant was awarded, inter alia, the marital residence and most of its contents, the IRAs and the payment of certain promissory notes by the plaintiff, while the plaintiff retained his pension, his car, and some furniture. The plaintiff acknowledged at trial that he was willing to give the defendant everything as long as he retained his pension. Any inequity in this property division was not "so strong and manifest as to shock the conscience and confound the judgment" of this Court (Christian v. Christian, 42 N.Y.2d at 71) Accordingly, these provisions of the separation agreement were reinstated, except as provided in the decision. The Appellate Division agreed with the Supreme Court that the interest provision in the promissory note and the lifetime escalating maintenance provisions were unconscionable (citing Tartaglia v. Tartaglia, 260 A.D.2d at 629; Yuda v. Yuda, 143 A.D.2d at 659). The plaintiff executed a promissory note for $19,000 in the defendant's favor with an annual interest rate of 9%, which represented her one-half portion of the plaintiff's unused vacation and sick time. Although the unused vacation and sick time were not in "Pay Out" status until the plaintiff's future retirement, the note provided that the annual 9% interest would accrue immediately upon execution. This interest provision was manifestly unjust. Furthermore, the plaintiff was obligated to pay child support and all college expenditures for three children, as well maintenance payments which increased each year during the defendant's lifetime. The lifetime nature of the maintenance and its 4% increase each year for the rest of the defendant's life, on top of a percentage increase following the emancipation of each of their children, represented a sum far in excess of the value of the plaintiff's marital distribution. Testimony elicited at trial revealed that by the time the plaintiff was 65 years of age, he would be exhausting his primary marital asset by giving the defendant almost one half of his yearly pension. This Court found "that no reasonable and competent person would have consented to" this lifetime escalating maintenance provision. Contrary to the Supreme Court's termination of the defendant's maintenance upon her remarriage, a maintenance period of 16 years, from the 1991 commencement of the matrimonial action to the 2007 order and judgment appealed herein, was more appropriate under the extant circumstances and in accordance with Domestic Relations Law 236(B)(6)(a). Given this determination, the plaintiff was not entitled to any recoupment of maintenance he paid between 1998 and 2007.

In Light Of Parties Long Separation Prior to Divorce, Standard of Living Not a Consideration in Awarding Maintenance.

In Dowd v Dowd, --- N.Y.S.2d ----, 2009 WL 139210 (N.Y.A.D. 3 Dept.) the parties were married in 1976, separated in 1999 and divorced in 2007. During the lengthy separation, defendant was ostensibly supported, in part, by her live-in boyfriend. Her sporadic employment history involved low-wage jobs. Of their four children, only a 17-year-old daughter remained unemancipated at the time of divorce and she resided with plaintiff. Neither party graduated from high school. At the time of trial, plaintiff earned roughly $60,000 per year working for a manufacturer of heavy equipment. Supreme Court directed plaintiff to pay maintenance of $500 per month until defendant is eligible for Social Security retirement benefits at age 62 in 2019 and, thereafter, at a reduced rate of $250 per month until she is eligible for health care through Medicare at age 65 in 2022, at which time maintenance ceases. The Appellate Division modified by reversing so much of the judgment as awarded defendant monthly maintenance of $500 until 2019, when she reaches age 62, and $250 until 2022, when she reaches age 65. Defendant was awarded monthly maintenance of $500 for a period five years from the date of entry of Supreme Court's judgment. It held that the purpose of maintenance is to provide financial support for the recipient spouse while he or she gains the skills and employment necessary to become self-sufficient. It noted that in light of the long separation of the parties prior to the divorce action, the standard of living during the marriage was not a consideration. The marital residence was the only property of significant value and it was essentially divided equally, with defendant receiving a distributive award of $100,000. Plaintiff was 50 years old, healthy and had a job that he would likely be able to continue for the rest of his working life. Defendant was 49 years old and had a similar educational background as plaintiff. While she had a sporadic employment history, there was no reason that she should not be able to obtain a modest and sustainable level of income within a reasonable time. Her purported health problems were not supported by competent medical proof. She had no responsibility for any unemancipated children and had lived independently of plaintiff for a considerable period of time. During the long separation, plaintiff provided the primary support to the children and also dealt with the marital debt. Two Justices Dissented.

Appellate Review and Review By Family Court Not Precluded by Failure to Timely File Objections. Strict Adherence to the Deadlines of Family Court Act 439(e) is not required

In Matter of Latimer v. Cartin,-- N.Y.S.2d ----, 2008 WL 5352279 (N.Y.A.D. 3 Dept.) the father filed a petition for downward modification of his child support obligation on the basis of the surrender of his medical license and a subsequent loss of income and earning capacity. Following a hearing, the Support Magistrate concluded that the father had failed to meet his burden of proving an involuntary and unavoidable change in financial circumstances or that he made reasonable and diligent efforts to obtain employment, and declined to downwardly modify his support obligation on these grounds. Family Court denied the father's objections to the Support Magistrate's order. The Appellate Division considered the father’s appeal, rejecting the mother's contention that appellate review was precluded due to the father's failure to timely file objections to the Support Magistrate's order. It held that strict adherence to the deadlines of Family Court Act 439(e) is not required and it did not find Family Court's decision to review the merits of the father's objections, which were filed one day after the statutory deadline, to have been an abuse of discretion.

Wife's Inability to Testify with Specificity as to How She Spent the Proceeds of Loan Suggested She Dissipated Marital Assets in Contemplation of Divorce.

In Abrams v Abrams, --- N.Y.S.2d ----, 2008 WL 5376644 (N.Y.A.D. 2 Dept.) the Appellate Division pointed out that "The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting". It held that the trial court properly awarded the former wife maintenance, but it improvidently exercised its discretion in extending the duration of the maintenance award beyond five years, and concluded that an award of $2,500 per month for five years was appropriate. It also found that the former husband correctly contended that he was entitled to a portion of the proceeds of a home equity loan that the wife obtained with respect to certain investment residential property, especially in light of the wife's inability to testify with specificity as to how she spent the proceeds of that loan. This suggested that the wife dissipated these marital assets in contemplation of divorce. The judgment was modified to award the husband a credit which represented his share of the proceeds of that loan, after accounting for the taxes paid by the wife on both the marital residence and the investment residential property. It noted that a parent has no legal obligation to provide for or contribute to the support of a child over the age of 21 Therefore, the court erred

Improper to Include Future Maintenance Payments as Part of Defendant's Income for Purposes of Calculating Child Support

In Simon v Simon, --- N.Y.S.2d ----, 2008 WL 4736658 (N.Y.A.D. 1 Dept.) the Appellate Division deleted the award of child support and included an award of health insurance coverage separate from plaintiff's other maintenance obligations, and remanded the matter to the trial court for a recalculation of the parties' respective child support obligations, and for a finding as to the cost of health insurance for defendant at the predivorce level of coverage. The Appellate Division held that while no basis existed to disturb the trial court's crediting of plaintiff's testimony regarding the reduction in his income and its resulting finding that the parties' predivorce lifestyle cannot be supported by their present combined income, under the circumstances, including the disparity in the parties' future earning capacity and defendant's ongoing health problems, the court should have directed that plaintiff pay defendant the cost of private health insurance, in addition to his regular nondurational maintenance obligation of $10,000 per month. As the record did not permit a finding as to the cost of such health insurance, it remanded for a determination thereof and for a recalculation of child support, required because the court improperly included future maintenance payments as part of defendant's income (see Huber v. Huber, 229 A.D.2d 904 [1996] ). It directed that upon recalculation, the trial court should deduct from the plaintiff's income the amount he pays in maintenance, but should not add the same amount to defendant's income (see Tryon v. Tryon, 37 A.D.3d 455 [2007] ).

In Banker v Banker, --- N.Y.S.2d ----, 2008 WL 4999166 (N.Y.A.D. 3 Dept.) the parties oral stipulation of settlement, which was incorporated but not merged into their 2005 divorce judgment, provided that the parties would subdivide a parcel of property located in Delaware County. In response to a motion by plaintiff to enforce the stipulation, Supreme Court, in February 2006, ordered defendant to, obtain subdivision approval from the Town. The Planning Board denied defendant's subsequent subdivision application upon discovering that the property was encumbered by a restrictive covenant against further subdivision. In March 2006, defendant moved to reargue and/or renew Supreme Court's February 2006 order and requested a hearing to determine equitable distribution. Supreme Court reserved decision on all pending matters pertaining to the parties until an appraisal of the property was completed. Because the parties could not agree on an appraiser, the court appointed one and challenged the parties, once the appraisal was complete, to settle the matter in a private auction or buyout. The appraiser completed two appraisals in June 2006. By letter dated October 4, 2006, defendant requested the opportunity to offer further proof of value. Defendant made a similar request and explained that the parties had not been able to settle the matter or agree on a private auction. Plaintiff responded with a motion seeking that the parties' interests in the property be declared in conformance with the terms set forth in the stipulation and the values established in the appraisal, as well as an order allowing her to buy out defendant's share of the property. Defendant opposed the motion, arguing that the appraisal should not be adopted without an opportunity by the parties to cross-examine the appraiser and submit other evidence of valuation. Supreme Court ordered a hearing to permit the parties to cross-examine the appraiser, but made it clear that no other testimony or evidence of valuation would be permitted. Following the hearing, at which Supreme Court again denied defendant's request to submit further evidence, the court determined the interests of the parties in the property to be 83% for plaintiff and 17% for defendant. The court, fixed the parties' interests as indicated above, appointed a receiver, and ordered the public sale of the property. Defendant appealed. The Appellate Division rejected defendant's argument that Supreme Court exceeded its authority by reforming the parties' stipulation of settlement. Where, as here, a mutual mistake rendered a portion of the parties' settlement agreement impossible or impracticable, "the relevant settlement provision was properly set aside" (Brender v. Brender, 199 A.D.2d 665, 666 [1993] ). No dispute existed that the parties' agreement to physically divide the property cannot occur given the restrictive covenant; indeed, defendant was not attempting to have the parties' stipulation enforced. Thus, after giving the parties ample opportunity to reach a new agreement, there was no error in Supreme Court's decision to move forward by appointing an appraiser so that an equitable distribution of the property, in as close accordance as possible with the intent of the parties as expressed in their settlement, could be achieved. The Court noted that to achieve reformation or recision of the stipulation of settlement, one of the parties should have commenced a plenary action, rather than proceeding by motion (see Brender v. Brender, 199 A.D.2d at 666 n. 2, 605 N.Y.S.2d 411) but, in the context of this matter, concluded the defect to be nonfatal. There was merit, however, in defendant's argument that the issue should not have been resolved without a full hearing permitting the parties to offer proof of valuation. The court is authorized to appoint an independent appraiser in a matrimonial action ( Domestic Relations Law 237; 22 NYCRR 202.18) but, unless the parties have stipulated otherwise, the court must afford the parties the opportunity to review the appraisal, cross-examine the appraiser and offer additional evidence on valuation. Although the record contained evidence that the parties consented to Supreme Court's appointment of the appraiser, it did not suggest that the parties agreed to be bound by the resulting appraisal. The order was reversed, on the law, and matter remitted to the Supreme Court for a full evidentiary hearing to determine the valuation of the parcels identified in the parties' stipulation of settlement.

In Van Kipnis v Van Kipnis, --- N.Y.3d ----, 2008 WL 5244630 (N.Y.) the Court of Appeals held that the parties French Prenuptial Agreement Opting out of their "Community Property" scheme in favor of a "Separation of Estates" regime constituted a waiver of Equitable Distribution. It also held that it was error to preclude the wife from recovering Counsel Fees to Oppose the husbands affirmative defense predicated on the prenuptial agreement. (Click here for expanded discussion)

New Attorney Conduct Rules, Effective April 1, 2009.

On December 17, 2008 Chief Judge Judith S. Kaye and the Presiding Justices of the Appellate Division announced new attorney conduct rules, effective April 1, 2009. The Rules of Professional Conduct, which will replace the existing Disciplinary Rules, introduce a number of important ethics changes for New York lawyers and are based on the ABA Model Rules. (Click here for highlights of significant ethics changes contained in the new Rules of Professional Conduct)

DRL 240 (1-b) Applies Only to Basic Child Support, Which Does Not Include College Expenses

In Colucci v Colucci, --- N.Y.S.2d ----, 2008 WL 4170019 (N.Y.A.D. 2 Dept.) the plaintiff mother and the defendant father, who had two children were divorced in 1997. In their stipulation of settlement, which was incorporated but not merged into the judgment of divorce they agreed to be bound by, and for the stipulation to comply with, the provisions of the Child Support Standards Act (Domestic Relations Law 240[1-b]; Family Ct Act 413[1][b] ). The stipulation provided, under the section entitled "CHILD SUPPORT," that the father must pay the mother a set amount per month in basic child support, which amount was determined in accordance with the CSSA. The stipulation of settlement further provided, in the child support section, that the parties are to share on a pro rata basis any child care expenses incurred by the mother that are necessary for her work or for school leading to work, as well as the costs associated with the children's extracurricular activities. The stipulation of settlement also provided, in the child support section, that the parties are to exchange their federal income tax returns annually in order to make any necessary adjustments to the father's basic child support obligation and to the parties' pro rata basis underlying the amount of child support that would be due under the CSSA. Under a separate section of the stipulation of settlement entitled "COLLEGE EXPENSES," the father agreed to be solely responsible for the children's college education expenses. In June 2007, 10 years after the stipulation was executed and 2 months before the older child was to start college, the father moved, inter alia, for a downward modification of his obligation to pay for the children's college education expenses. Claiming that his income had decreased and the mother's had increased since the divorce, the father asked the Supreme Court to "reallocate" the parties' respective obligations with respect to the children's college education expenses, based on the parties' current incomes, so that he would pay 62% of the expenses, and the mother would pay the remainder. In opposition, the mother contended that, in accordance with the stipulation of settlement, the parties agreed that the father would pay 100% of the children's college education expenses regardless of any change in the parties' income. Concluding that there was a "change in circumstances," and purporting to take into account the best interests of the children, the Supreme Court granted that branch of the father's motion which was for a downward modification of his obligation to pay the children's college education expenses, to the extent of directing the father to pay 75% of those expenses. The Appellate Division reversed. It held that the terms of a separation agreement "incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties" (Matter of Gravlin v. Ruppert, 98 N.Y.2d 1, 5). Further, a matrimonial settlement is a contract subject to principles of contract interpretation .and a court should interpret the contract in accordance with its plain and ordinary meaning. Where a matrimonial settlement "is clear and unambiguous on its face, the parties' intent must be construed from the four corners of the agreement, and not from extrinsic evidence. Here, the parties' stipulation of settlement expressly obligated the father to pay 100% of the children's college education expenses, in addition to, and separate and apart from, his obligation to pay child support. Notably, the provision in the stipulation requiring the father to pay 100% of the children's college education expenses is set forth in a section of the stipulation separate from the section containing his obligation to pay child support, and the two sections do not reference each other in any manner. Significantly, only the section pertaining to child support contains provisions regarding reallocation of the parties' respective obligations should there be any change in the income of either one. Under the circumstances, it was apparent that the parties agreed that college education expenses would not constitute a component of their obligation to pay basic child support. It was also apparent from the stipulation of settlement that the parties intended that the father's obligation to pay 100% of the children's college education expenses was not subject to modification based on any change in the parties' respective incomes. While Domestic Relations Law s 240(1- b)(h) requires stipulations and agreements to contain a provision that the parties were advised of the CSSA and knowingly "opted-out" of its provisions that provision specifically applies only to "[b]asic child support," which generally does not include college education expenses. Under such circumstances, there was no basis for the court to interfere with the parties' contractual agreement requiring the father to pay 100% of the children's college expenses.

Ability to Become Self-supporting with Respect to Some Standard of Living Does Not Obviate Need to Consider Predivorce Standard of Living. Voluntary Payment of Tuition May Not Be Recouped or Credited Against Pendente Lite Child Support

In Ruanne v Ruanne, --- N.Y.S.2d ----, 2008 WL 4491472 (N.Y.A.D. 2 Dept.) the parties were married in 1986 and had three children. In May 2003 the plaintiff commenced the action for divorce. The Appellate Division held that in determining the appropriate amount and duration of maintenance, the court is required to consider, among other factors, the standard of living of the parties during the marriage and the present and future earning capacity of both parties. While the Supreme Court properly found that the defendant was capable of returning to work and re-establishing her business, the wife's ability to become self-supporting with respect to some standard of living in no way obviates the need for the court to consider the predivorce standard of living. The maintenance award of $6,000 per month for eight years would permit the defendant to maintain a semblance of the predivorce standard of living while allowing her a reasonably sufficient time to become self-supporting. The Supreme Court properly denied those branches of the plaintiff's motion, made in April 2004 and referred to trial, which were, in effect, for a downward modification of his pendente lite support obligation and for a credit against support arrears for tuition payments made to the school of the two youngest children. Modifications of pendente lite awards should be sparingly made and then only under exigent circumstances such as where a party is unable to meet his or her own needs, or the interests of justice otherwise require relief. While the papers submitted on the motion demonstrated that the plaintiff's salary declined in 2003, the evidence adduced at trial established that he also accumulated over $100,000 in capital gains during that year. Accordingly, the plaintiff had the resources available to sufficiently provide for his family as established in the pendente lite award. Further, the pendente lite order did not address the issue of tuition payments for the children's school. Accordingly, the plaintiff's voluntary payment of tuition may not be recouped or credited against amounts owing under the order (Horne v. Horne, 22 N.Y.2d 219) In distributing the marital assets, the Supreme Court providently exercised its discretion in characterizing a life insurance policy and margin account as active assets and valued them as of the date of commencement of the action. The plaintiff depleted those assets during the pendency of the action, the majority going toward the purchase and furnishing of his new home and the installation of a new driveway and basketball court. Their decrease in value was thus due to the plaintiff's decisions and not mere market fluctuations.

Absent Express Finding of Willfulness Prejudgment Interest Improperly Imposed. When Findings of Support Magistrate Are Insufficient Family Court May Consider Affidavits and Other Submissions Without Holding a Hearing

In Matter of Regan v Zalucky, --- N.Y.S.2d ----, 2008 WL 4809541 (N.Y.A.D. 3 Dept.), the Family Court fixed the father's liability for arrears of child support and awarded interest at 9% per annum on each of his obligations. The Appellate Division reversed and remitted for further proceedings. It pointed out that once a money judgment has been ordered and entered, interest accrues until the judgment has been paid ( Family Ct Act 454[1]; 460[1]; CPLR 5003). Prejudgment interest can be ordered only after a finding of a willful disregard of a lawful court support order (Family Ct Act 460 [1]; Matter of Kaltwasser v. Kearns, 235 A.D.2d 738, 740 [1997] ). Despite the statutory mandate directing that a money judgment shall be ordered when any amount of child support arrears are established ( Family Ct Act 454[2][a]) it appeared that no money judgment had been ordered or entered. It did not appear that Family Court made any express finding of willfulness before imposing prejudgment interest. Absent such a determination, prejudgment interest was improperly imposed. In a footnote the Appelate Division rejected the father's contention that Family Ct Act 439(e) precludes Family Court, when it has concluded that the findings of the Support Magistrate are insufficient to render a final determination, from considering evidence in the form of affidavits and other submissions without holding a hearing. Where the court is endeavoring to fix amounts due on liability already established, and submissions are made on notice and with opportunity to respond, it found nothing to preclude Family Court, where possible, from rendering a final order based upon submissions.

Court of Appeals Holds Rule 202.48 Does Not Apply to Order Granted as Result of Unnecessary Motion Which Results in Order Granting Same Relief Previously Granted.

In Farkas v Farkas, — NY3d —, 10/24/2008 N.Y.L.J. 27, (col. 3) the Court of Appeals held that Rule 202.48 cannot deprive a party of a judgment where it has been improperly or unnecessarily invoked in the first place. The 'settle' or 'submit' trigger for the 60-day limitation of Rule 202.48(a) does not purport to govern the flow of the entry process, which is a ministerial recording function that is separate and distinct from the procedure of obtaining the court's signature on a proposed judgment. (Click here for expanded discussion)

Court of Appeals Rejects Interpretation of  Term "Cohabitation" in Parties Separation Agreement as Having Meaning which Contemplates "Changed Economic  Circumstances"

In Graev v Graev, —NY3d—, --- N.E.2d ----, 2008 WL 4620698 (N.Y.) the Court of Appeals rejected an interpretation of the term "Cohabitation" in the parties separation agreement as having a meaning which contemplates "changed economic  circumstances", or, is necessarily determined by whether a "couple shares household expenses or functions as a single economic unit". It held that no plain meaning could be ascribed to the term in the parties agreement, which provided for the termination of maintenance upon  the occurrence of any of four "termination events"; namely, the wife's remarriage or death, the husband's death, or "[t]he cohabitation of the Wife with an unrelated adult for a period of sixty (60) substantially consecutive days." The agreement did not define "cohabitation. The Court referred the matter back to the trial court to determine the meaning of the term after after a hearing. Rather than  articulating a "clear rule of law", which was hardly fair to those who may have used the word "cohabitation" in an extant separation agreement, intending the meaning ascribed to it by those Appellate Division cases requiring financial interdependence, it stated, in a footnote that the wisest rule is for parties in the future to make their intention clear by more careful drafting. (Click here for expanded discussion)

First Department, in Case of First Impression,  Holds that Value of Stock Owned By Husband Should Be Reduced By Embedded Taxes. Wife Awarded $27 million in Assets.

In Wechsler v Wechsler, --- N.Y.S.2d ----, 2008 WL 4635832 (N.Y.A.D. 1 Dept.) the issue was the extent to which the value of a holding company, Wechsler & Co., Inc. (WCI), a Subchapter C corporation, all the shares of which were owned by the husband, should be reduced to reflect the federal and state taxes embedded in the securities it owned. These securities constituted virtually all of its assets, due to the unrealized appreciation of those securities. As of the date the divorce action was commenced, the valuation date, WCI had ceased trading securities for the accounts of customers and bought and sold securities solely for its own account. All of the experts who testified agreed that WCI should be valued on a net asset basis by determining what a willing buyer would pay a willing seller, with neither being under a compulsion to buy or sell, and with both having reasonable knowledge of the relevant facts. The Appellate Division, in an opinion by Justice James M. McGuire, modified the judgment appealed from by the husband. It noted that Supreme Court adopted a "baseline" value of $70,848,107 on the date the action was commenced. That baseline value was determined by the neutral expert before any deduction for embedded taxes and then made adjustments to it that differed in various ways from the adjustments made by the neutral expert. The most significant adjustment was on the issue of the extent of the reduction for embedded taxes. Supreme Court rejected the approach of the Fifth Circuit in Matter of Dunn v Commissioner of Internal Revenue (301 F3d 339 [5th Cir2002] ), the approach embraced by the neutral expert. Pursuant to that approach, consistent with the assumption inherent in the net asset valuation methodology, an actual sale of the corporation's assets is assumed to occur on the valuation date. The value of the corporation is reduced on a dollar-for-dollar basis by the full amount of the tax liability that would arise from the sale of the assets by the hypothetical buyer on the valuation date. Both the neutral expert and the husband's expert testified, and the wife's expert did not dispute, that if the securities were sold as of the date of commencement, the effective tax rate would be 41.74% of the baseline value of $70,848,107. Under the valuation methodology adopted in Dunn, the date-of-commencement value of WCI would be reduced by $29,572,000 (41.74% of $70,848,107). Instead, Supreme Court accepted the approach of the wife's expert and reduced the baseline value of WCI by 11% of $70,848,107 ($7,793,292). That percentage approximated what Supreme Court and the wife's expert denominated the "historical" rate of the annual taxes paid by WCI, a rate determined by comparing the average annual taxes paid by WCI to its average annual gross revenue, i.e., its revenue before all applicable deductions for its various costs of doing business (including the salaries of its employees). At trial, Supreme Court was asked to choose between the approach of the Fifth Circuit and an approach different from the one advanced by the Commissioner in Jelke. The latter approach, the one Supreme Court adopted, did not attempt to ascertain the period of time over which the assets of a corporation would be sold by a reasonable buyer and discount the taxes that would be due over that period to present value as of the date of commencement. Rather, it adopts a baseline value of the assets as of the commencement date and reduces that value by an "historical" tax rate of the corporation. The Appellate Division rejected the approach of the wife's expert because it did not accord with common sense, conflicted with the reasoned testimony of both the neutral expert and the husband's expert and was without precedential support. The approach of the wife's expert assumed that the assets will not be sold as of the valuation date and that WCI would operate in the future as it had in the past so that each year it both would sell assets to the same extent it annually had sold assets in the past and would be able to offset income generated by the sale of assets with the same deductions for salaries and other expenses that it had been able to take in prior years. The assumption that WCI would continue to be able to take the same deductions for salaries was at least brought into question by proceedings in Tax Court that were pending as of the trial. Furthermore, the assumption that WCI would sell assets in the future to the same extent that it had sold assets in the past was even more questionable. Moreover, by also assuming that the securities owned by WCI will not depreciate in value over time, the approach of the wife's expert required the husband to bear all the risk of a decline in their value. The Appellate Division held that Supreme Court overvalued WCI by $21,778,708 (the difference between the $7,793,292 reduction in value based on the "historical" tax rate methodology and the $29,572,000 reduction that would result under the methodology adopted in Dunn ). The Appellate Division affirmed that part of the judgment of Supreme Court which declined to award permanent maintenance in part because the wife would be "vastly wealthy in her own right." The wife did not perfect her cross appeal, so there was no occasion to decide whether a permanent maintenance award would be appropriate in light of the reduction of the distributive award. The Court noted that Supreme Court awarded the wife over $27 million in assets, reflecting approximately 88% of the other marital assets. Supreme Court awarded conditional, durational maintenance to the wife, with the husband being obligated both to make monthly payments of $46,666 to the wife, a portion of which was deductible by the husband, and to pay various expenses, including the mortgage payments and taxes relating to the home awarded to the wife. Pursuant to the terms of the judgment, this maintenance award continues until the wife receives both the specific assets awarded to her and the first payment on account of the distributive award. Relying on it decisions in Gad v. Gad (283 A.D.2d 200 [2001] ) and Pickard v. Pickard (33 AD3d 2002 [2006], appeal dismissed 7 NY3d 897 [2006] ), the husband argued that because Supreme Court did not make a permanent maintenance award he was entitled to a credit against the distributive award in the amount of all the temporary maintenance payments he made. The husband contended that he paid a total of $3,000,987 in temporary maintenance. The Appellate Division held that the husband's reliance on Gad and Pickering was misplaced and that he was not entitled to any credit for the temporary maintenance payments he made, regardless of the amount of those payments. The mere determination by Supreme Court not to award permanent maintenance cannot be equated with a finding that the pendente lite maintenance award was excessive. Supreme Court did not make such a finding either expressly or implicitly. The determination not to award permanent maintenance was based in part on the ground that permanent maintenance was unnecessary given the wife's vastly different economic circumstances as a result of the equal distribution of the marital property. In addition, Supreme Court also based this determination on the consequences of the distribution of the overwhelming preponderance of the liquid marital assets to the wife. As a result, a permanent maintenance award would have required the husband to tap into the income generated by WCI or liquidate securities it owned even though he was awarded this asset. Accordingly, Supreme Court cogently observed that an award of permanent maintenance would entail an element of "double dipping" by the wife into the principal asset awarded to the husband. (Click here for extended discussion)

Evidence of False Allegations of Physical Abuse Which Interfere with Parental Rights, Is So Inconsistent with the Best Interests of the Child That it Raises, by Itself, a Strong Probability That the Offending Party Is Unfit to Act as a Custodial Parent

In Mohen v Mohen, --- N.Y.S.2d ----, 2008 WL 2609358 (N.Y.A.D. 2 Dept.) the Appellate Division found that Supreme Court's award of custody to the mother lacked a sound and substantial basis and had to be set aside. Supreme Court gave insufficient attention to facts and evidence that were of such significant collective magnitude as to warrant a custody determination in favor of the father. The Supreme Court found, with support in the record, that the mother, on at least one occasion, had filed false charges of physical abuse against the father. The mother made numerous false charges against the father. There were four incidents of physical abuse accusations by the mother against the father, in August 2004, December 2004, January 2005, and December 2005. All of the Family Court petitions, when filed, apparently were withdrawn or dismissed. All of the mother's reports to child protective authorities were investigated and determined to be "unfounded." Moreover, expert medical testimony in the record strongly suggested that, regarding the January 2005 alleged incident, the mother manufactured proof of physical injury to herself. She admitted to the forensic examiner, and confirmed at trial, that the January 2005 incident of alleged physical abuse "might have been an accident." As a result of the January 2005 accusations, a temporary order of protection was issued against the father that prevented contact between the father and the child for approximately one month. The mother accused the father of having physically abused the child in December 2005 after a visitation exchange, and made a report to Child Protective Services. Records from Maimonides Hospital, where the child was examined the day after the exchange, found the child to be physically normal. The mother's manipulative conduct demonstrated a purposeful placement of her self-interest above the interests of others. Evidence of false allegations of physical abuse which interfere with parental rights, is so inconsistent with the best interests of the child that it raises, by itself, a strong probability that the offending party is unfit to act as a custodial parent. By contrast, there was no evidence that any calls the father made to the police against the mother were baseless. Supreme Court failed to attribute adequate significance to the determination that the mother had made at least one false claim, though the record evidences more than one such claim, and improperly equated that evidence with markedly less egregious conduct of the father. The trial court erred in finding that the mother, rather than the father, would better foster the child's relationship with the noncustodial parent. While the parenting skills of both the mother and the father are subject to criticism, there was sufficient evidence from which to conclude that the father demonstrated an ability to foster post-divorce parent-child relationships, having done so with regard to his two older children from an earlier marriage. Moreover, a conclusion that the mother would more successfully foster a child/noncustodial parent relationship was insupportable, in light of her false allegations of physical abuse against the father. The child's best interests were fostered by awarding custody to the father. The father worked from a home office and would be more readily available than the mother to meet the child's daily and immediate needs. The judicial preference of keeping siblings together, where possible, in order to encourage close familial relationships, is firmly established. While there was clearly an age difference between the parties' child and his two half-siblings, the numerous benefits the child could derive from the development of a relationship with the older siblings should not have been summarily disregarded. Supreme Court providently exercised its discretion in granting the mother maintenance of $3,500 per month for five years. However, it erred in failing to include a provision that the award of maintenance shall terminate upon the death of either party or the mother's remarriage, whichever shall occur sooner.

A Credit Against Child Support for College Expenses Is Not Mandatory but Depends upon the Facts and Circumstances in the Particular Case, Taking into Account the Needs of the Custodial Parent to Maintain a Household and Provide Certain Necessaries

In Pistilli v Pistilli, --- N.Y.S.2d ----, 2008 WL 2713989 (N.Y.A.D. 4 Dept.) following the entry of a judgment that, inter alia, granted plaintiff a divorce, plaintiff moved to modify the judgment by "[d]istributing the actual and anticipated college education costs associated with the parties' children," specifically the parties' daughter, between the parties. Defendant cross-moved for an order directing that he pay 60% of the college education expenses of the parties' daughter and reducing his child support obligation accordingly. Defendant appealed from an order requiring him to pay 80% of the daughter's college expenses based on Supreme Court's determination that defendant "shall contribute to college costs 'in accordance with his percentage' " of the parties' combined parental income and denying his cross motion seeking a reduction in his child support obligation. Pursuant to an oral stipulation of the parties that was incorporated but not merged into the judgment of divorce, the parties "agreed to contribute to [their children's college expenses] as they are then financially able." The Appellate Division held that the court erred in failing to consider defendant's maintenance obligation in calculating the percentage of defendant's contribution to the daughter's college expenses. After subtracting from defendant's income the amount of taxable maintenance paid to plaintiff as indicated on the parties' respective 2005 tax returns, which were used by the court in determining the parties' respective incomes, it concluded that defendant's percentage of the combined parental income was 64% rather than 80%, and thus defendant's pro rata share of the daughter's college expenses was reduced from 80% to 64%. It rejected defendant’s contention that the court erred in determining that he was entitled to a credit against his child support obligation only in the amount of his pro rata share of the daughter's college meal plan. It held that a credit against child support for college expenses is not mandatory but depends upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries. Because plaintiff had to maintain a household for the daughter during the daughter's school breaks and weekend visits, it could not be said that defendant was entitled to a credit for the daughter's rooming expenses. Nevertheless, inasmuch as we it reduced defendant's pro rata share of the daughter's college expenses from 80% to 64%, defendant's child support credit based on the college meal plan had to reflect that reduction and it modified the order accordingly.

Proper to Grant Cruelty Divorce in Long Marriage Where Continuous Course of Misconduct. Error Not to Award Custodial Parent Exclusive Occupancy of Home.

In Stacey v Stacey, 52 A.D.3d 1219, 860 N.Y.S.2d 350 (4 Dept 2008) the Appellate Division affirmed a judgment that granted defendant wife a divorce on the ground of cruel and inhuman treatment. The Court held that defendant was required to establish that the parties suffered from more than strained, unpleasant relations and incompatibility and, in this marriage of long duration, a higher degree of proof was required to establish cruel and inhuman treatment because what could be viewed as substantial misconduct in a marriage of short duration might be only 'transient discord' in a marriage of many years. It noted however, the statement of the Court of Appeals that, "even in [a long-term] marriage 'substantial misconduct' might consist of one violent episode such as a severe beating" (Brady, 64 N.Y.2d at 345, 486 N.Y.S.2d 891, 476 N.E.2d 290). Defendant testified on direct examination concerning an incident that occurred approximately five months before the commencement of the action, during which plaintiff called defendant vulgar names and repeatedly struck her on the side and back of her head. The incident caused defendant to seek medical treatment, and she obtained an order of protection against plaintiff. Defendant also testified that plaintiff verbally abused her before she left for work concerning her appearance and the clothes that she was wearing. On cross-examination, defendant further testified that, throughout the course of the marriage she was hit or slapped by plaintiff "every time the dishes weren't done or the laundry wasn't done. According to defendant, plaintiff's conduct was continuous and not an " 'isolated act of mistreatment'. Thus, the court properly granted defendant a divorce on the ground of cruel and inhuman treatment. The Appellate Division agreed with plaintiff that the court erred in directing the immediate sale of the marital residence and in failing to award him exclusive use and occupancy of the marital residence until the parties' youngest child attains the age of 18, and modified the judgment accordingly. Plaintiff was awarded custody of the parties' children and thus, under the circumstances of this case, he was entitled to such exclusive use and occupancy. It stated: "Courts now express a preference for allowing a custodial parent to remain in the marital residence until the youngest child becomes 18 unless such parent can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale proceeds". Here, there was no evidence in the record that plaintiff, the custodial parent, could have obtained comparable, less expensive housing in the same area or that he was financially incapable of maintaining the residence, nor was there evidence that defendant was in immediate need of her share of the proceeds from the sale of the marital residence.

Fifth Circuit Holds Ne Exeat Rights, Even When Coupled with "Rights of Access," Do Not Constitute "Rights of Custody"

In Abbott v Abbott, --- F.3d ----, 2008 WL 4210541 (5th Cir. 2008) the Fifth Circuit found persuasive Croll's reasoning that the Hague Convention clearly distinguishes between "rights of custody" and "rights of access" and that ordering the return of a child in the absence of "rights of custody" in an effort to serve the overarching purposes of the Hague Convention would be an impermissible judicial amendment of the Convention. It held that ne exeat rights, even when coupled with "rights of access," do not constitute "rights of custody" within the meaning of the Hague Convention.

Seventh Circuit Holds That by Virtue of Doctrines of Patria Potestas and Ne Exeat, Venezuelan Father Had "Rights of Custody". Does Not Reach Issue of Whether Doctrine of Ne Exeat creates Custody Rights

In Vale v. Avila, 2008 U.S. App. Lexis 17068 (7 Cir. 2008) the Venezuelan divorce decree gave Avila physical custody of the children but gave both parents the right (and duty) of patria potestas. The divorce decree also gave Vale unlimited visitation rights, and the right of ne exeat, another civil law doctrine, whereby his consent was required before the children could leave the country. The Seventh Circuit held that by  virtue of the doctrine of patria potestas, Vale, the father, had rights relating to the care of the person of the child, and, by virtue both of that doctrine and by virtue of the doctrine of ne exeat, the right to determine that the child's place of residence would remain Venezuela rather than the United States. The Court pointed out that no more is necessary to establish that Vale had "rights of custody," which Avila infringed.

Second Circuit Reaffirms Croll Holding That Ne Exeat Right Does Not Create Rights of Custody and Holds That District Court May Enforce Rights of Access.

In Duran v Beaumont, --- F.3d ----, 2008 WL 2780656 (2nd Cir.(N.Y.) the Second Circuit pointed out that the Hague Convention distinguishes between rights of custody and rights of access. It defines rights of access as "the right to take a child for a limited period of time to a place other than the child's habitual residence." In interpreting the Hague Convention, the Court has held that violating a ne exeat right ( the right to determine whether the child will leave the country) is insufficient to qualify as a violation of custodial rights. It reaffirmed its holding in Croll v Croll, 229 F.3d at 138-140, that a ne exeat clause does not create rights of custody within the meaning of the Hague Convention. It also pointed out that although remedies exist in the event that a child is removed in breach of access rights, recourse for such removal does not include an order of return to the child's place of habitual residence. The court held that in such situations, district courts may fashion a remedy ordering the custodial parent who has removed the child to allow and financially provide for periodic visits by the non-custodial parent (disagreeing with Cantor v Cohen, 442 F.3d 196 (4th Cir. 2006)

Court of Appeals Holds That Commencement Date of Prior Discontinued Divorce Action May Not Serve as Valuation Date for Marital Property in Later Divorce Action.

In Mesholam v Mesholam, 6/27/2008 NYLJ 30, (col. 1) the Court of Appeals, in an Opinion by Judge Pigott, held that the commencement of a prior, discontinued divorce action may not serve as the valuation date for marital property for purposes of equitable distribution in a later divorce action. Courts must use the commencement date of the later, successful action as the earliest valuation date for marital property. However, the circumstances surrounding the commencement of the earlier action can and should be considered as a factor by the trial court, among other relevant factors, as it attempts to calibrate the ultimate equitable distribution of marital economic partnership property acquired after the start of such an action by either spouse.
The parties were married in 1969. The wife commenced an action for divorce in 1994. The husband answered, but did not counterclaim for divorce. Five years later the Supreme Court granted the wife's motion to discontinue the action. Almost immediately, the husband commenced this action for divorce. After finding that the husband was entitled to a divorce Supreme Court held that the husband's pension must be valued as of the commencement date of the present action, rather than the commencement date of the wife's 1994 action, relying on Domestic Relations Law §236(B)(4)(b). Supreme Court determined that the marital property, including the marital portion of the pension, should be divided equally between the parties. The Appellate Division held Supreme Court improvidently exercised its discretion in valuing the pension as of the commencement date of the present action. It concluded that the 'appropriate valuation date was the commencement date of the 1994 action' because there was 'no evidence that the parties reconciled and continued to receive the benefits of the marital relationship after the prior action was commenced' (25 AD3d 670, 671 [2006]).
The Court of Appeals modified the order of the Appellate Division and remitted the matter to Supreme Court for further proceedings. It pointed out that Domestic Relations Law 236(B)(1)(c) defines marital property as all property acquired 'during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action.' Thus, in the absence of a separation agreement, the commencement date of a matrimonial action demarcates 'the termination point for the further accrual of marital property ' (citing Anglin v. Anglin, 80 NY2d 553, 556 [1992]). The Court held that the valuation date must be between 'the date of commencement of the action and the date of trial ' (Domestic Relations Law 236 [B][4][b]). In determining whether the commencement of a particular 'matrimonial action' terminates the accrual of marital property, it looked to 'the overall legislative intent of the Domestic Relations Law and the particular application of the equitable distribution regime. In Anglin, the Court held that the commencement of a separation action does not cut off the accrual of marital property because such an action does not, ipso facto, terminate the marital economic partnership. Rather, the economic partnership should be considered dissolved when a matrimonial action is commenced which seeks divorce, or the dissolution, annulment or declaration of the nullity of a marriage, i.e., an action in which equitable distribution is available. It observed that this rule provides internal consistency and compatibility and objective verification, as opposed to uneven, ephemeral, personal interpretations as to when economic marital partnerships end. For similar reasons, it concluded that the value of marital property generally should not be determined by the commencement of an action for divorce that does not ultimately culminate in divorce. Equitable distribution is available 'in an action wherein all or part of the relief granted is divorce. Where there is no divorce, there can be no equitable distribution. Consequently, permitting the commencement date of the prior, unsuccessful divorce action to govern the valuation date of marital property for the purposes of a later, successful action in which equitable distribution is available would be inconsistent with the statutory scheme. The Court found that, as Supreme Court concluded, the pension benefits were marital property to the extent that they were earned prior to the commencement of the present divorce action. As a result, the marital portion of the pension could not be valued at any time earlier than the commencement date.

Obligation to Provide for Future College Expenses Not Subject to Deviation Rules

In Cimons v Cimons, --- N.Y.S.2d ----, 2008 WL 2457243 (N.Y.A.D. 2 Dept.) the Second Department in an opinion by Justice Angiolillo, held that, under the circumstances presented here, the obligation to provide for the future college expenses of the children was not part of the parties' basic child support obligation and therefore was not subject to the CSSA requirement that any deviation from statutorily-mandated child support obligations must be recited and explained in a stipulation of settlement. Even though the parties violated the CSSA by failing to recite and explain in their stipulation why they deviated from CSSA standards in providing basic child support, and the basic child support provisions were properly vacated as a consequence, the provision concerning future college expenses survived the vacatur, and was enforceable.

The parties entered into a stipulation of settlement, which was incorporated but not merged in a judgment of separation. Subsequent to the entry of the judgment, the father moved to vacate the child support and related provisions of the stipulation, alleging that the stipulation failed to comply with the "opt-out/deviation" provisions of the CSSA contained in Domestic Relations Law 240(1-b)(h). The Supreme Court determined, in effect, that the parties' agreement deviated from the provisions of the CSSA with regard to the calculation of "basic child support." Since the parties failed to comply with the provisions of Domestic Relations Law 240(1-b)(h), those basic child support provisions were not enforceable, and the Supreme Court vacated those provisions of the parties' stipulation relating to their basic child support obligation for their three children, ultimately scheduling a hearing for a calculation of basic child support pursuant to the CSSA. However, Supreme Court denied the father's motion to vacate the separate provisions of the stipulation that related to the parties' agreement to provide for their children's future college expenses.

The Appellate Division affirmed. It noted that a parent has an obligation to provide support for his or her child's basic needs, an obligation which is addressed in Domestic Relations Law s 240(1- b)(c)(1), (2). Unlike that basic obligation, support for a child's college education is not mandatory. Absent a voluntary agreement, a parent might be required to provide support for his or her child's attendance at college, but the determination of that obligation is dependent upon the exercise of the court's discretion in accordance with Domestic Relations Law s 240(1- b)(c)(7).

Domestic Relations Law 240(1-b)(h) requires that any agreement or stipulation voluntarily entered into between the parties, and presented to the court for incorporation in an order or judgment, must include provisions: (1) stating that the parties have been advised of the provisions of the CSSA; (2) stating that the basic child support provisions of the CSSA would presumptively result in the determination of the correct amount of child support to be awarded; (3) stating what the amount of basic child support would have been if calculated pursuant to the CSSA, if the parties' stipulation or agreement deviates from the basic child support obligation; and (4) setting forth the parties' reason or reasons for deviating from the CSSA calculation, if they have chosen to deviate. The requirements of Domestic Relations Law s 240(1- b)(h) may not be waived by either party or by counsel.

The Appellate Division noted that in contrast to the add-ons for child care expenses and future reasonable health care expenses, which must be awarded and prorated in the same proportion or percentage as each parent's income bears to the combined parental income, the add-on for educational expenses is within the court's discretion, both as to whether an award of such expenses is to be made in the first instance, and the parties' share of any amount awarded. Domestic Relations Law 240(1-b)(c)(7).

Where the parties' stipulation or agreement fails to comply with the requirements of Domestic Relations Law s 240(1-b)(h), it is fundamental that the basic child support provisions of the agreement are invalid and cannot be enforced. That portion of the agreement must be set aside and the parties' basic child support obligation must be recalculated through the application of the CSSA. Nonetheless, the invalidity of the basic child support obligation, due to a deviation from the CSSA standards without full compliance with Domestic Relations Law 240(1-b)(h), does not necessarily require that the entire stipulation be vacated. That a portion of an agreement may be invalid and unenforceable does not necessarily preclude the enforcement of other portions of an agreement. (Ferro v. Bologna, 31 N.Y.2d 30).

The Court held that the determination as to which additional aspects, if any, of the parties' stipulation must be vacated along with the basic child support provision depends on the circumstances of the particular case and the nature of the obligations addressed in the other provisions of a stipulation. Some provisions may be so directly connected or intertwined with the basic child support obligation that they necessarily must be recalculated along with the basic support obligation. Unlike child care expenses and unreimbursed health care expenses, education expenses are not directly connected to the basic child support calculation. Initially, education expenses differ from these other expenses in that, in the absence of an agreement to pay education expenses, the determination as to whether or not such expenses will be paid is within the court's discretion (see Domestic Relations Law 240[1-b][c][7] ), while child care and unreimbursed health expenses are mandatory. Also, education expenses differ in that such expenses are not necessarily prorated in the same proportion or percentage as each parent's income bears to the combined parental income.

The Court held that the entirety of the stipulation should be considered in determining whether the parties' agreement evinces that trade-offs were made which involved the basic child support figure. In such a situation, expenses that are not directly connected to the CSSA calculation, or even to child support, may be so closely intertwined with the basic child support provision as to require vacatur.

This case fell within the ambit of cases that have clearly stated that the tuition expense aspect of a college education is distinct from basic child support. The parties' stipulation, insofar as it pertained to their support for their children's attendance at college, recited as follows: "The parties further acknowledge, each to the other, that it is their anticipation that each of their children attends college. And in this regard, the parties agree to contribute pro rata to income to the minimum of a SUNY education. That is State of New York education for a New York State resident for each child and shall contribute more than that minimum, if possible, based upon their respective financial circumstances at the time each child makes application to college. College expenses with respect to the parties' obligation, to pay for same pro rata to income is defined as including but not limited to tuition, room and board, mandatory books, supplies and fees, pre-college testing classes and actual testing, such as the SATs, scholastic aptitude tests and reasonable number of applications to colleges for purposes of the child or children reviewing campuses for purposes of making a final decision with respect to the selection of college."

The court held that to the extent that the commitment to meet future college expenses addressed room and board, the agreement did not deviate from the CSSA as it provided that the parties will contribute to such expenses pro rata to income. The stipulation also included extensive provisions as to how the parties are to deal with various custodial funds that had been earmarked for college education expenses, including a recital that such funds would be utilized in the first instance before triggering the parties' obligation to contribute to college expenses proportionally based on their income.

There was nothing in the record that would support a finding that the father agreed to pay a share of college expenses as a trade-off against some other expense. When the parties agreed to equitable distribution and traded off certain assets, the stipulation directly addressed those trade-offs. Thus, the wife received sole title to the marital residence in exchange for waiving any claim to the husband's pension, IRA, or deferred-compensation account. Similarly, the wife waived any claim to certain stock in exchange for the husband's waiver of any claim to a joint bank account. Additionally, the provisions of the parties' stipulation regarding college expenses were distinguishable from those provisions of the stipulation based upon the calculation of basic child support. In particular, the stipulation provided: "Mr. Cimons shall pay child support for the benefit of the children and to the age of 21 or 22, if in college." The father's agreement to support his children and contribute to their college education expenses beyond the age of 21 years inured primarily to the benefit of the three children. As it is the intent of the CSSA to protect the children, to the extent possible, from the economic consequences of their parents' divorce or separation, it would seem particularly unjust to allow the father, whose adjusted income, in 2005, after deduction of all mandatory deductions including his maintenance obligation, was reported as $130,000, to wield noncompliance with the CSSA as a sword to eviscerate his commitment to provide his children with support for their college education.

Court of Appeals Holds Family Court Lacked Subject Matter Jurisdiction to Entertain Wife's Application for Increased Spousal Maintenance Despite "De Novo" Provision of Separation Agreement

In Matter of Johna M.S. v Russell E.S., --- N.Y.3d ----, 2008 WL 1860165 (N.Y.) Petitioner wife and respondent husband executed a written separation agreement in 2003. No divorce action was commenced. The agreement provided that the husband would pay the wife $100 per week in spousal maintenance and $250 per week in child support. The section of the agreement pertaining to maintenance stated: "while this agreement will resolve these issues for the present time, the Wife shall not be foreclosed from seeking additional maintenance in negotiation with the Husband, or failing such negotiation, then filing in a court of appropriate jurisdiction for a modification of the present provisions concerning the payment of maintenance. Any application by the Wife shall be treated as a 'de novo' application to the court, since it is not possible to set future maintenance at this time because it is impossible to forecast the Wife's needs or the Husband's income/earning capacity."
The wife commenced a Family Court Act article 4 proceeding seeking an upward modification of maintenance and child support. The Support Magistrate dismissed that portion of the wife's application seeking additional spousal maintenance for lack of jurisdiction. The court noted that no proof was offered that the wife was likely to become a public charge (see Family Court Act 463); thus, the parties were bound by the terms of the separation agreement on the issue of spousal maintenance. Family Court affirmed, as did the Appellate Division. The Court of Appeals affirmed. It held that Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute. It generally has no subject matter jurisdiction to reform, set aside or modify the terms of a valid separation agreement. Nor can an agreement of the parties confer on Family Court the power to modify the terms of a separation agreement. A statutory exception to the rule prohibiting the modification of separation agreements, not applicable here, exists where a spouse "is likely to become in need of public assistance or care" (Family Court Act 463). Family Court lacked subject matter jurisdiction to entertain the wife's application for increased spousal maintenance. Although the parties' separation agreement purported to permit Family Court to treat any application by the wife as "de novo," such language cannot confer jurisdiction upon Family Court. The wife's petition to Family Court for increased maintenance expressly stated that it was "an application to the Court for an upward modification of spousal support," premised on the insufficiency of current maintenance due to a loss of certain Social Security benefits. In practical terms, the wife was not presenting a new, or "de novo," application for maintenance to Family Court. She was seeking increased maintenance from that provided under the separation agreement. Thus, because the wife was seeking a modification of a spousal maintenance award set forth in a separation agreement, Family Court was without jurisdiction to entertain the petition and grant the requested relief. Justice Smith dissented in an opinion


Second Department Holds Counsel Fees to Nonmonied Spouse Generally Warranted Where a Significant Disparity in Parties Financial Circumstances and Should Not Be Denied, or Deferred Absent Good Cause, Articulated in a Written Decision

In Prichep v Prichep, --- N.Y.S.2d ----, 2008 WL 1987254 (N.Y.A.D. 2 Dept.) the Second Department, in an opinion by Justice Prudenti, held that because of the importance of such awards to the fundamental fairness of the proceedings, an award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties and should not be denied, or deferred until after the trial, which functions as a denial, without good cause, articulated by the court in a written decision. It cited as examples of good cause, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case. It based this conclusion on the fact that when an action for a divorce is commenced, it is often the case that most of the marital assets available for the payment of legal fees are possessed or controlled by one of the spouses, usually the husband. In order to ensure that the parties will have equal access to skilled legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the nonmonied spouse during the course of the litigation. The court pointed out that when a party to a divorce action requests an interim award of counsel fees, as opposed to a final award, a detailed inquiry is not warranted. The husband commenced the divorce action in 1998. In June 2005, the wife made a pretrial motion for interim counsel fees of $35,000. The wife's motion papers noted that, although the court previously had awarded her interim counsel fees of $20,000, she currently owed her attorneys $53,009. The wife pointed out that the husband was a "highly successful vascular surgeon," earning $420,100 per year, while she worked part-time as an early intervention therapist, earning $4,015 per year. In opposition to the wife's motion, the husband argued that the wife had "over-litigated" the case, creating and submitting voluminous and unnecessary papers, and thus generating excessive counsel fees. Supreme Court denied the wife's motion "without prejudice to renewal before the trial court to determine the financial circumstances of the parties, the nature and complexity of the case, which includes the valuation of a medical practice, the fees filed and legal services rendered and the expertise of the attorneys." The wife thereafter moved to renew her prior motion and for an additional award of interim counsel fees of $40,000. Her attorney submitted an affidavit asserting that the wife now owed his firm $159,000 in legal fees, as well as invoices and attorney time records documenting billings in that amount. In the alternative, the motion sought leave to withdraw as her counsel. Supreme Court denied the motion for fees but granted the law firm's request to the extent of relieving it as counsel for the wife. An award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse. Such an award "is appropriate 'to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation' "(citing Gober v. Gober, 282 A.D.2d 392, 393, quoting O'Shea v. O'Shea, 93 N.Y.2d at 193; see Charpie v. Charpie, 271 A.D.2d 169). If the playing field were not leveled by an award of interim counsel fees, "a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior matrimonial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis".


Third Department Holds That Absent Stipulation No Pendente Lite Counsel Fee Award Without A Hearing

In Bush v Bush, 46 A.D.3d 1140, 848 N.Y.S.2d 721 (3d Dept, 2007) Defendant cross-moved for among other things, interim counsel fees in the amount of $85,172.81. Supreme Court awarded defendant interim counsel fees of $25,000. The Appellate Division reversed. It held that to justify an award of counsel fees, a sufficient evidentiary basis must exist for the court to evaluate the respective financial circumstances of the parties and value of the services rendered' Moreover, Supreme Court cannot award counsel fees based solely upon written submissions, unless so stipulated to by the parties. The proof submitted concerning the financial circumstances of the parties was limited to written submissions by respective counsel. As the record did not contain evidence of a stipulation agreeing thereto, the proof of the financial circumstances of the parties was inadequate for Supreme Court to properly assess the award of counsel fees. The Appellate Division reversed and remitted to Supreme Court for an evidentiary hearing (citing its 2003 decision in Yarinsky v.Yarinsky, 2 A.D.3d 1108 [3 Dept 2003] ).
 

Not Improper to Impute Income Based upon Father's Self-reported Financial Affidavit

In Barnett v Ruotolo, 851 N.Y.S.2d 519 (2d Dept. 2008) the Appellate Division held that in exercising the discretion to impute income to a party, a Support Magistrate is required to provide a clear record of the source from which the income is imputed and the reasons for such imputation. The father did not testify and chose to rely on the financial documentation he had submitted, which contained considerable discrepancies. The father's financial documentation indicated that his monthly income was only approximately one-third of his stated monthly expenses, and no evidence was submitted to show that these monthly expenses were not being paid in a timely manner. Accordingly, the Family Court did not improvidently exercise its discretion in imputing income based upon the father's self-reported financial affidavit for the purpose of calculating his child support obligation.

In re Y.W., v. T-T.J., ---- N.Y.S.2d ----, 2008 WL 222339 (N.Y.A.D. 1 Dept.) the Appellate Division reversed a child support order of $3,288 per month and remanded for recalculation of the basic child support obligation. It held that since each party claimed that the income as reflected on the other's tax return was not accurate, and the parties were unable to produce sufficient evidence to otherwise convince the support magistrate about their respective incomes, the magistrate properly decided to impute income to the parties by averaging what was reported on their most recent (2004 and 2005) individual tax returns. The magistrate used income figures net-of-deductions to calculate petitioner father's average income, but relied on respondent mother's gross income to calculate her average income, without taking into consideration her business deductions. The figure supposedly representing the average of respondent's 2004 and 2005 gross income was actually the gross income from her 2001 income tax return, adjusted upward by 2% to reflect additional cash receipts. Although respondent was unable to substantiate her business deductions at trial, the magistrate specifically found that respondent was able to prove that numerous entries on petitioner's tax returns were unaccounted for, and that his income was also possibly more than reflected on the tax returns. Given these circumstances, the magistrate should have compared gross income to gross income, or net income to net income, and not gross income to net income, in calculating child support. This was a high-income case. The magistrate applied a rate of 5% to the parties combined adjusted gross income over $80,000, without establishing the basis for applying such a rate, and without considering the appropriate level of support in light of the child's actual needs. Petitioner failed to offer any evidentiary support for his claim that his monthly expenses for the child were over $9,000 without add-ons. Without any supporting documentation, petitioner simply allocated 50% of his monthly expenses to the child, and the magistrate erroneously accepted his figures. It held that on remand, the court should consider the actual needs of the child, and rather than using an arbitrary percentage, should consider whether a cap on combined income over $80,000 subject to child support is warranted and apply the statutory percentage of 17% to that capped amount.

Error for Referree to Base Decision on Parties Unsworn Statements During Settlement Negotiations.

In Passalacqua v Passalacqua, --- N.Y.S.2d ----, 2008 WL 1838011 (N.Y.A.D. 4 Dept.) the Appellate Division held that, apart from those parts of the judgment granting the parties mutual divorces, the remainder of the judgment had no evidentiary basis in the record. The matter was referred to a Matrimonial Referee, who attempted to negotiate a settlement. No testimony was presented by either party. The Matrimonial Referee was unable to negotiate a settlement, and he then based his determination of the issues upon the unsworn statements of the parties during the settlement negotiations, which he deemed to be testimony. Although no exhibits were introduced by either party, the Matrimonial Referee relied upon the parties' descriptions of several prior orders in determining the issues before him. The Appellate Division was unable to review the propriety of the judgment with respect to the issues before the Matrimonial Referee inasmuch as the record was confusing and incomplete, and the 'contentions of the parties differed very sharply. It was unclear whether the Matrimonial Referee relied upon documents not admitted in evidence and it noted the well-established principle that, with exceptions not relevant here, unsworn testimony is inadmissible in a civil case . It concluded that the errors of the Matrimonial Referee rendered the matter inherently flawed and remitted to Supreme Court for a new hearing on all issues with the exception of the mutual divorces granted to the parties.

Where Court Never Indicated it Was Imputing Income to Plaintiff it Was Required to Consider Plaintiff's Latest Income Tax Return in Determining the Child-support Award, Rather than Income-averaging His Reported Income.

In Healy v Healy, --- N.Y.S.2d ----, 2008 WL 2130379 (N.Y.A.D. 1 Dept.) the Appellate Division reversed on the law an order which denied plaintiff husband's motion for a downward modification of his spousal maintenance and child support awards. Following a trial in August of 2005, judgment was entered in February 2007, awarding defendant wife, among other things, a divorce on her counterclaim, custody of the couple's five children, $2,750 in spousal maintenance per month and $2,631 in child support per month. Plaintiff was represented by counsel at trial, and he promptly moved pro se for a downward modification after entry of judgment. At trial, his 2005 income tax return was admitted into evidence, indicating a substantial decrease in earnings. The court never indicated it was imputing income to plaintiff based on an attempt to avoid obligations or hide income. Accordingly, it was required to consider plaintiff's latest income tax return in determining the child-support award, rather than income-averaging his reported income from 2001 to 2004. Plaintiff's most recent tax return should also have been considered in determining the appropriate award for spousal maintenance.

Wilful Violation of Support Order Can Be Established Without Testimony by a Formal Judicial Admission

In Matter of Columbia County Support Collection Unit v Interdonato, --- N.Y.S.2d ----, 2008 WL 1969647 (N.Y.A.D. 3 Dept.) the Appellate Division rejected Respondents argument on appeal that Family Court erred in finding a willful violation of the support orders and ordering that he be committed based on unsworn testimony. It held that it is well settled that when there is no admission by a respondent, a determination of a willful violation of a support order must be predicated upon proof adduced at a hearing. A formal judicial admission by a respondent may, however, obviate the need for a hearing inasmuch as the respondent, by his or her admission, waives the production of evidence by the opposing party with regard to the facts admitted and the respondent's admission is deemed conclusive with regard to those facts. Here, respondent's unequivocal admission before the Support Magistrate in open court to the facts giving rise to petitioner's claim of respondent's violation of Family Court's orders, that he failed to make the required child support payments, was made with sufficient formality and conclusiveness to be deemed a formal judicial admission even in the absence of an oath. Furthermore, proof of a failure to make required support payments is prima facie evidence of a willful violation. Accordingly, Family Court's order was not based upon unsworn testimony, but was properly made following respondent's admission and, as such, it was affirmed.
 

Second Department Removes Law Guardian Failure to Comply With Rules of Chief Judge

In Cervera v Bressler, --- N.Y.S.2d ----, 2008 WL 1748331 (N.Y.A.D. 2 Dept.) the parties' entered into a stipulation, later so-ordered by the court, in which they agreed to joint custody, with primary physical custody with the mother, visitation to the father on alternate weekends and one weekday per week, and the removal of certain restrictions on visitation that had been imposed temporarily. In July 2005, the attorney for the child moved by order to show cause for supervised visitation, based on various allegations by the mother, including one allegation of sexual molestation. The sexual molestation allegation was subsequently determined to be unfounded. Although a hearing on the motion was scheduled at least once, it never took place, and visitation by the father remained supervised since July 28, 2005. The Appellate Division held that supervised visitation was appropriately required only where it is established that unsupervised visitation would be detrimental to the child and because no hearing was ever held on the order to show cause visitation remained supervised, and telephone contact between father and daughter was monitored, for about 2 1/2 years, based solely on the hearsay allegations of the mother. These consisted of the allegations of molestation, which were determined by OCFS to be unfounded, and stories of various incidents, the details of which were disputed by the father and, were insufficient to show that unsupervised visitation would be detrimental to the child's well-being. Under these circumstances, it was unacceptable to the Second Department that the hearing had not been held, although ordered more than 2 1/2 years earlier. This arrangement resulted in the violation of the father's right to reasonable access and visitation.

It also held that the court should not have required the father to pay the cost of supervising his visitation without determining the economic realities, including his ability to pay and the actual cost of each visit. Finally, it held that the court improvidently exercised its discretion in denying the father's motion to remove Joshua D. Siegel as the attorney for the child. It referred to the new rules that had been recently promulgated by the Chief Judge and stated that an attorney for the child should not have a particular position or decision in mind at the outset of the case before the gathering of evidence. On the other hand, attorneys for children are not neutral automatons. After an appropriate inquiry, it is entirely appropriate, indeed expected, that an attorney for the child form an opinion about what action, if any, would be in a child's best interest. An attorney for the child is not an investigative arm of the court. While attorneys for the children, as advocates, may make their positions known to the court orally or in writing (by way of, among other methods, briefs or summations), presenting reports containing facts which are not part of the record or making submissions directly to the court ex parte are inappropriate practices. Here, in the order to show cause , and the affirmation in support, as well as in every affirmation submitted thereafter, the attorney for the child included facts which were not part of the record, but which constituted hearsay gleaned from the mother. This behavior on the part of the attorney for the child, as well as his repeated ad hominum attacks on the father's character, was both unprofessional and improper, as it amounted to the attorney for the child acting as a witness against the father, in violation of the Rules of the Chief Judge (see 22 NYCRR 7.2[b] ).

Law Guardian Rebuked for Failure to Follow Rules of Chief Judge and Wishes of Child

In Matter of Delaney v. Galeano,--- N.Y.S.2d ----, 2008 WL 1823048 (N.Y.A.D. 2 Dept.) the attorney for the child appealed from an order of the Family Court, which, after a hearing, denied his motion to hold the respondent mother in contempt. Upon receipt of a copy of a letter dated June 15, 2007, from the 14-year-old child to the effect that he did not want the appeal to proceed, the Appellate Division issued an order to show cause directing the parties or their attorneys to show cause why an order should not be made dismissing the appeal in the above-entitled proceeding as withdrawn. After argument of the appeal the motion was granted and the appeal was dismissed as withdrawn. The Appellate Division held that where "the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child" (22 NYCRR 7.2[d][2]). Here, the child on numerous occasions has expressed concern that his attorney was not representing his wishes. Additionally, he requested that the appeal be withdrawn, prompting the Court to require the parties or their attorneys to show cause why the appeal should not be dismissed as withdrawn. In response to that order to show cause, the attorney for the child failed to demonstrate any basis upon which the child's preference may properly be disregarded (see 22 NYCRR 7.2[d][3] ).

Wife’s Failure to Disclose Bank Statements and Transfers of Real Property Justified an Adverse Inference Against Her

In Gering v Tavano, --- N.Y.S.2d ----, 2008 WL 879674 (N.Y.A.D. 1 Dept.) the Appellate Division held that the verdict of cruel and inhuman treatment was supported by legally sufficient evidence, which included evidence of defendant's denigrating comments about plaintiff's religious background, accusations of infidelity, and interference with plaintiff's relationship with the children and evidence of plaintiff's anxiety, depression, headaches and stomach aches resulting therefrom . Plaintiff showed a reasonable excuse for not filing the complaint alleging cruel and inhuman treatment until approximately two years after the commencement of the divorce action. The parties had stipulated that the issue of fault was resolved and that plaintiff would "take the divorce" on the ground of constructive abandonment. However, defendant objected to that ground two years later, after the inquest. Defendant was not prejudiced by the delay, since plaintiff's summons with notice indicated that he sought a divorce on the grounds of both constructive abandonment and cruel and inhuman treatment. Plaintiff was not required to submit an affidavit of merit. The court properly based its imputation of income to plaintiff on his admission that he took money from his business for personal expenses and failed to report it on his income tax returns. With respect to defendant's financial condition, her failure to disclose her bank statements and various transfers of real property among herself, her family members and third parties justified an adverse inference against her (see 22 NYCRR 202.16[k][5][I]; Wildenstein v. Wildenstein, 251 A.D.2d 189 [1998] ). The maintenance award of $2,000 a month was properly based upon the court's finding of defendant's failure to comply with discovery and disclose real estate transactions and bank statements and the family's pre-divorce standard of living. However, the one-year duration of the award was inadequate and it was increased to three years. The court properly articulated its reasons for setting the child support obligation at 25% of $150,000. Given the evidence of defendant's own substantial assets, the court properly required her to contribute 13% during the first year and 14% thereafter The award to defendant of a 15% interest in plaintiff's business was proper, given her failure to contribute to the business, lack of cooperation with respect to discovery of her own assets, and receipt of temporary maintenance.

Proper To Hold Defendant Responsible for the Plaintiff's Counsel Fees in Same Amount As He Paid His Counsel

In Ciampa v Ciampa, --- N.Y.S.2d ----, 2008 WL 193292 (N.Y.A.D. 2 Dept.), the Appellate Division held that Supreme Court did not err in awarding the plaintiff counsel fees up to the amount defendant paid for his own counsel of $201,437.80, as well as expert fees of $50,00. This matrimonial action required the expenditure of significant counsel fees to deal with the myriad of legal issues presented, as well as substantial expert fees in order to evaluate the parties' multimillion-dollar business assets and residential and commercial real estate. The defendant's expenditure of $201,437.80 for his counsel fees paled in comparison to the plaintiff's expenditure of more than $484,142 for her counsel and experts, the plaintiff having utilized at least five law firms during the course of this matrimonial proceeding. Given, inter alia, the delay attributable to the plaintiff, the Supreme Court properly exercised its discretion.

Error to Admit into Evidence Determination of Social Security Administration on Issue of Wife’s Disability

In Grasso v Grasso, --- N.Y.S.2d ----, 2008 WL 193262 (N.Y.A.D. 2 Dept.) the Appellate Division found that that while the husband correctly contended that the court improperly admitted into evidence and relied upon a determination of the Social Security Administration as to the wife's disability, there was other sufficient admissible evidence which supported the finding that the wife was totally disabled.

Proper to Enjoin Defendant from Mailing Any Nonfinancial Correspondence to the Plaintiff

In Meccariello v Meccariello, 847 N.Y.S.2d 618 (2d Dept., 2007) Supreme Court permanently enjoined the wife from mailing any nonfinancial correspondence to the plaintiff. The Appellate Division held that Supreme Court was correct in permanently enjoined her from mailing any nonfinancial correspondence to the plaintiff, since the plaintiff demonstrated that he would suffer irreparable harm absent the injunction (citing Icy Splash Food & Beverage, Inc. v. Henckel, 14 A.D.3d 595, 596, 789 N.Y.S.2d 505; Kane v. Walsh, 295 N.Y. 198, 205-206, 66 N.E.2d 53).

Refining its Definition of Habitual Residence Sixth Circuit Rejects Mozes and Adopts Friedrich Rule

In Robert v Tesson, 507 F.3d 981 (6^th Cir., 2008), the Sixth Circuit held that Friedrich I's edict (Friedrich v Friedrich, 983 F.2d 1396, 1400 (6^th Cir.1993) ("Friedrich I") that "the court must focus on the child, not the parents, and examine past experience, not future intentions" controlled the case. Recognizing that Friedrich I was the first United States Court of Appeals case to consider the meaning of "habitual residence" under the Hague Convention, and that it presented a far simpler set of facts than the ones at issue  the court refined the holding in Friedrich I, without disturbing Friedrich I's core holding that habitual residence under the Hague Convention is determined by the child's experience, not by the parents' subjective intent. To this end, it held "that a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child's perspective." The Court recognized that a very young or developmentally disabled child may lack cognizance of their surroundings sufficient to become acclimatized to a particular country or to develop a sense of settled purpose, but this case did not present it with such a child. Therefore, it stated that it expressed no opinion on whether the habitual residence of a child who lacks cognizance of his or her surroundings should be determined by considering the subjective intentions of his or her parents. [Click here for expanded discussion]