Matrimonial & Family Law Update

LiGreci v LiGreci
2011 NY Slip Op 06371
Decided on August 30, 2011
Appellate Division, Second Department

 Wife appealed from the decison of the supreme court to terminate husband’s child support and maintenance obligations and cancel all arrears.

The Second Department reversed and remitted to the supreme court for a hearing on the issue of support arrears. In the parties’ divorce, husband had been ordered to pay $6,000 per month in child support and $4,000 per month in maintenance. Subsequently, the parties’ two daughters turned 21 and the parties’ son moved in with husband. Husband also claimed that he could not afford to pay maintenance because he was disabled, unemployed, and unable to work, and that he had paid wife $4,000 per month, which included payments for items not included in the divorce, such as monthly health insurance. Wife claimed that husband was still working for and receiving an income from the family business.

The Second Department held that the lower court erred in awarding husband a credit for the payments he made to wife for items not included in the divorce. These voluntary payments made for the benefit of the children, not pursuant to court order, cannot be credited against the amounts due under the divorce judgment.  

Although the lower court properly ended husband’s child support obligation, because the daughters had turned 21 and the son was living with him, the lower court erred in terminating maintenance. In determining whether there was a substantial change in circumstances warranting downward modification, the court compares the payor’s financial circumstances at the time of the motion to what they were at the time of the support order. Here, plaintiff’s income was reduced prior to the judgment of divorce and he failed to establish a reduction in income since the divorce. In fact his income increased for a time after the divorce. Moreover, the medical evidence failed to establish when husband became disabled and unable to work.  Therefore, husband failed to establish a change in financial circumstances since the judgment of divorce and was not entitled to a downward modification.

The lower court also erred in cancelling husband’s child support arrears without a hearing. There are issues of fact with respect to whether husband was getting income from the family business, whether money borrowed from family should be imputed as income, and whether husband was living below the poverty line. Thus, the case Second Department remitted the case for a hearing on child support arrears.

Finally, the lower court erred when it cancelled husband’s maintenance arrears. Arrears may not be modified unless the payor shows good cause for failure to make an application for relief from the order prior to the arrears accumulating. Here, husband  failed to show good cause for not bringing the application earlier. On remittal, a hearing should be held to determine the exact amount of maintenance arrears.

Matter of Ajay Sumert D. v Vijay Anand D.
2011 NY Slip Op 06264
Decided on August 16, 2011
Appellate Division, Second Department

After a hearing in a child protective proceeding, the family court found that father had neglected the child, and placed the child in the custody of mother.

The Second Department affirmed. The evidence showed that father hit mother with such force that she could not move her jaw up and down or chew. The attack happened in the presence of the parties’ two-and-a-half-year-old child, who began to cry. On another occasion while mother held the child, father punched mother in the stomach, cursed at her, and threatened to kill her. Thus, the evidence supported the conclusion that father neglected the child by abusing mother in the child’s presence, thereby risking the child’s physical, emotional, or mental health.

Cabral v Cabral
2011 NY Slip Op 06242
Decided on August 16, 2011
Appellate Division, Second Department

Husband was an insurance broker before going to prison and losing his insurance license. Wife took over the business and when husband got out of prison, wife refused to let him work there in any capacity. He retained a much lower-paying job. Husband sued for divorce, and wife failed to comply with discovery, resulting in her being precluded from presenting evidence regarding equitable distribution. The supreme court imputed income to husband, awarded wife child support,and failed to award husband any portion of wife’s pension.

The Second Department reversed. The lower court erred in failing to include wife’s income from the insurance agency in either income or assets, thereby shielding her from equitable distribution and rewarding her for discovery noncompliance. The lower court improperly omitted wife’s income from the calculation of child support and from the apportionment of debt. The lower court should have distributed the portion of wife’s pension that accrued prior to commencement of the action. Since there was no evidence demonstrating that husband could obtain employment approaching the salary he made as an insurance broker, the court erred in imputing to him a salary of $85,000 in calculating child support.

Matter of Fitje v Fitje
2011 NY Slip Op 06234
Decided on August 9, 2011
Appellate Division, Second Department

Mother petitioned the family court to modify custody in order to giver her sole custody of the children and reduce father’s visitation. The family court denied mother’s petition.

The Second Department affirmed. The custody arrangement agreed to by the parties in a stipulation may only be granted where there have been sufficient changes in circumstances since the stipulation that modification would be in the best interests of the child. A party seeking modification is not automatically entitled to a hearing. Here, the lower court properly dismissed the petition, which was based on conclusory, unsubstantiated, and nonspecific allegations.

Scholar v Timinisky
2011 NY Slip Op 06226
Decided on August 9, 2011
Appellate Division, Second Department

The supreme court ordered husband to comply with parts of the parties’ stipulation of settlement, which was incorporated into their judgment of divorce, altered the custody arrangement to award wife sole decision-making authority on the child’s education if the parties could not agree on a parenting coordinator, disqualified a certain individual from being an arbitrator of issues surrounding the child, and barred husband from beinging any additonal motions without prior permission from the court.

The Second Department affirmed. Resolving a dispute regarding joint decision making authority with respect to a child requires determining the child’s best interests, based on the totality of the circumstances. The lower court had adequate information that the parties were unable to cooperate on making decisions regarding the child’s education, and therefore no hearing was necessary to determine that it was in the child’s best interest to award mother sole decision-making authority if the parties cannot agree on a parenting coordinator. The lower court properly disqualified a particular individual from serving as arbitrator. The attorney for the child had authority to ask the court to direct husband to pay his share of the preschool education costs.

Although public policy requires free access to the courts, husband forfeited that right by abusing the judicial process with vexatious litigation. The lower court providently exercised its disgression in prohibiting husband from bringing any further motions without leave of the court.

Palmeri v Palmeri
2011 NY Slip Op 06223
Decided on August 9, 2011
Appellate Division, Second Department

The supreme court ordered husband to pay $7,500 per month temporary maintenance and $140,000 interim counsel fees.

The second Department affirmed. Interim counsel fees are designed to create parity in a divorce and allow the nonmonied spouse to litigate on equal footing. Interim counsel fees are warranted where there is significant financial disparity between the parties. Here, husband made $3 million dollars in 2008 and wife was unemployed, so the award of interim counsel fees was a provident exercise of discretion. Pendente lite awards should only be modified on appeal in exigent circumstances, when a party can’t meet financial obligations or justice requires. Here, husband failed to show exigent circumstances or that the temporarymaintenance left him unable to meet his financial obligations. any perceived inequities can be remedied by a speedy trial.

Monahan v Monahan
2011 NY Slip Op 06220
Decided on August 9, 2011
Appellate Division, Second Department

The Second Department dismissed husband’s appeal of a supreme court order sentencing him to 10 days in jail for willfully failing to pay child support. The Second Department held that the issue was moot because the period of confinement had expired.

Matter of Nell v Nell
2011 NY Slip Op 06129
Decided on August 2, 2011
Appellate Division, Second Department

The family court modified the joint custody arrangement the parties established by stipulation that had been incorporated into the parties’ judgment of divorce. The family court awarded sole legal and residential custody of the children to mother, and awarded visitation to father that restricted weekday overnight visits.

The Second Department reversed. Modification is only warranted where there has been a change in circumstances such that modification is needed in the best interests of the child, as determined by reviewing the totality of the circumstances. Since the determination depends on evaluating witness credibility, the hearing court’s findings are accorded great deference and only disturbed where they lack a sound and substantial basis in the record.

Here, the finding of a change of circumstances was supported by the record because acrimony between the parties made joint decision making impossible. However, the lower court erred in awarding mother sole residential custody and accordingly discontinuing father’s overnight weekday visitation. The children expressed a desire to maintain the status quo with regard to the schedule, and their preference was entitled to some weight given that they were 12 and 14, and sufficiently mature enough to express their desires. Furthermore, altering the schedule would cause more disruption int he children’s lives, and there was no evidence the children would benefit from spending less time with father. Therefore the best interests of the children required continuing the joint residential custody arrangement and the weekday overnight visitation schedule as originally agreed.  

Morille-Hinds v Hinds
2011 NY Slip Op 06120
Decided on August 2, 2011
Appellate Division, Second Department

The supreme court awarded husband only 15% of the value of certain marital property, including the parties’ real property, wife’s retirement accounts, and certain bank accounts. The supreme court also imputed to husband an income of $80,000 per year and ordered him to pay $233 per week in child support.

The Second Department reversed and remanded for new proceedings. In equitable distribution, both parties are entitled to fundamental fairnedd, and both economic and noneconomic contributions are to be taken into account. The court must consider all of the statutory factors and discuss how it relied on those factors in distributing the property. If it is evident that all of the relevant factors were considered and the reasons for the court’s decision are articulated, the court need not discuss each factor separately.  

Here the lower court failed to set forth the factors it considered and only made conclusory assertions regarding husband’s contributions to the marital estate, disregarding evidence that he made significant contributions to the value of the marital property through his skilled labor. Husband’s contrinution to the care of the parties’ children also should have been taken into account.

In deciding income for child support purposes, the court is not bound by reported income but may look at actual earning capacity. Imputed income may be based on prior employment or what someone is capable of making given their education and opportunities.  The court has considerable discretion, but the calulation must have a basis in law and fact. Here the determination that husband was capable of making $80,000 lacked support in the record. Moreover, the lower court failed to specify how it calculated support on income in excess of $80,000.

The case was remanded for new findings as to the distribution of the property of which husband had received only a 15% share, and the amount of child support.

Renga v Renga
2011 NY Slip Op 06097
Decided on July 26, 2011
Appellate Division, Second Department

The supreme court held that proceeds of a medical malpractice judgment the parties received during the marriage was separate property.

The Second Department reversed and remitted to the supreme court for a new determination as to whether the property is marital or separate. During the marriage, wife, and husband derivatively, received an unallocated, $4.8 million dollar medical malpractice award. The parties deposited the money into a joint investment account. A decade later, the couple withdrew the majority of the balance and deposited approximately equal shares in separate trust accounts, one for husband and one for wife.

Generally, personal injury awards are the separate property of the spouse being compensated. However, depositing the proceeds in a joint account creates a presumption that both parties are entitled to a share of the property. To rebut the presumption, the party alleging that the proceeds are separate property must show by clear and convincing evidence that the joint account was opened merely a matter of convenience, with no intent to create a beneficial interest, and that the funds in the account originated entirely from separate property.

Here, the fact that the couple deposited the proceeds into a joint account creates a presumption that the funds were transmuted to marital property. A hearing must be held to determine if husband can rebut that presumption.

Renga v Renga
2011 NY Slip Op 06098
Decided on July 26, 2011
Appellate Division, Second Department

In this companion case, the Second Department vacated the supreme court’s pendente lite order prohibiting husband from withdrawing more than $4,627 per month from the joint account with the personal injury proceeds. The order was based on the lower court’s determination that the proceeds were separate property. Because that determination was reversed and remanded for a new determination, the lower court will also have to reconsider the injunction against husband withdrawing more than $4,627 per month, which will remain in effect until a new determination can be made.  

In this companion case, the Second Department affirmed the lower court’s denial of husband’s pendente lite requests for child support and interim attorney’s fees. The appellate court should modify pendente lite orders only in exigent circumstances, where a party is unable to meet his or her expenses. The award should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse, with due regard for the pre-separation standard of living. Perceived inequities in a pendente lite award are to be remedied by a speedy trial. Here, the lower court properly considered husband’s actual, reasonable living expenses, and there are no exigent circumstances sufficient to disturb the lower court’s determination.