Archive for August, 2008

Change in Health Condition and Maintenance

Saturday, August 30th, 2008

In order to obtain a reduction of maintenance, the party seeking the reduction bears the burden of establishing a substantial change of circumstances. Lipow v. Lipow, 110 A.D.2d 756 (2d Dep’t 1985); Patell v. Patell, 91 A.D.2d 1028 (2d Dep’t 1983); Hickland v. Hickland, 56 A.D.2d 978 (3d Dep’t 1977). Some courts have held that an unanticipated medical condition which befalls a party after a judgment of divorce was entered, may be a basis for modifying that party’s maintenance obligation. Bischoff v. Bischoff, 159 A.D.2d 404 (1st Dep’t 1990); Wantuch v. Wantuch, 56 A.D.2d 866 (2d Dep’t 1977).

In Praeger v. Praeger, 162 A.D.2d 671 (2d Dep’t 1990), a husband agreed to certain maintenance obligations with knowledge that he had a history of heart disease, heart surgeries and several heart attacks. Thereafter, he suffered a stroke which he claimed rendered him permanently disabled and unable to perform his profession. The husband pointed to that stroke as a basis for modifying his maintenance obligation. In light of his condition at the time of the divorce, the court refused even to grant a hearing, absent additional medical and financial evidence that a substantial change of circumstances had occurred.

If after the judgment of divorce is entered, the party paying maintenance develops a health condition that impairs his/her ability to pay maintenance, any application seeking modification of maintenance must be supported with admissible medical evidence and an evidentiary showing must be made that the health condition has impaired that party’s financial situation.

Child Support Modification and Contents of a Family Court Petition

Saturday, August 30th, 2008

In order for the parent having primary physical residence of the child to seek upward modification of an existing child support obligation, a Family Court petition must present factual allegations representing a substantial change in circumstances. If such allegations are not presented, such petition fails to state a cause of action and is subject to dismissal. In meeting such burden, the party must establish the “’specific increases in the costs associated with the child’s basic necessities’ … ‘as well as the expenses associated with the child’s varied interests and school activities’ and cannot ‘[rely] on generalized claims of increases due to the child’s maturity or inflation’”. Cadwell v. Cadwell, 294 A.D.2d 434 (2d Dept. 2002); Gentry v. Littlewood, 269 A.D.2d 846 (4th Dept. 2000); Greenway v. Greenway, 262 A.D.2d 855 (3rd Dept. 1999).
Therefore, a petition should contain specific allegations addressing the change in the child’s needs and explaining how the parent with whom the child resides is unable to meet them.

Duration and Amount of Maintenance

Thursday, August 28th, 2008

Domestic Relations Law §236(B)(6)(a) sets forth a number of factors which, in combination, allow the court to determine the appropriate duration and amount of maintenance. The following discussion of recent cases describes how the courts applied statutory criteria to various factual situations.
It is well settled that the amount and duration of maintenance are matters committed to the sound discretion of the trial court. Frost v. Frost, 49 A.D.3d 1150 (4th Dept. 2008); Booth v. Booth, 24 A.D.3d 1238 (4th Dept. 2005). Each case must be considered based on the unique facts and circumstances it presents. Xikis v. Xikis, 43 A.D.3d 1040 (2nd Dept. 2007), appeal denied, 10 N.Y.3d 704 (2008).
When fashioning a maintenance award, the trial court is required to take into account the parties’ pre-separation standard of living. Fitzpatrick v. Fitzpatrick, 43 A.D.3d 991 (2nd Dept. 2007). The court must also consider the reasonable needs of the recipient spouse, and the pre-separation standard of living in the context of the other factors set forth in Domestic Relations Law §236(B)(6)(a), and then, in its discretion, determine a fair and equitable maintenance award. Id.
In Booth v. Booth, 24 A.D.3d 1238 (4th Dept. 2005), the Fourth Department perceived no abuse of discretion in the award of maintenance to the plaintiff, where the record established that defendant had steady employment and received supplemental income from Air Force disability payments and rental properties. In addition, defendant received Social Security payments for each child based on plaintiff’s disability, and plaintiff had been ordered to pay child support to defendant. In comparison, plaintiff’s income consisted of Social Security disability payments and minimal wages from part-time employment at a fast-food restaurant. Although her income exceeded her expenses, plaintiff had health problems that affected the stability of her employment. The lower court’s award of maintenance to the plaintiff thus was upheld on appeal. Id.
In Pickard v. Pickard, 33 A.D.3d 202 (1st Dept. 2006), appeal dismissed, 7 N.Y.3d 897 (2006), lifetime maintenance of $3,500.00 per month was appropriately awarded to the plaintiff in view of the 23-year duration of the parties’ marriage, plaintiff’s role in raising and educating the parties’ children, plaintiff’s minimal job skills, plaintiff’s extended absence from the workforce, and the parties’ respective financial positions. Id.
Similarly, in Xikis v. Xikis, 43 A.D.3d 1040 (2nd Dept. 2007), appeal denied, 10 N.Y.3d 704 (2008), the parties lived together for 28 years and were married for over 18 years. The defendant was not employed during most of the marriage, had limited education and skills, and was 60 years old at the time of the judgment. In addition to the properties awarded to the defendant by the Supreme Court, in the exercise of discretion and upon consideration of all relevant factors, an award of $1,500 as monthly non-durational maintenance was deemed to be appropriate. Id.
In Fitzpatrick v. Fitzpatrick, 43 A.D.3d 991 (2nd Dept. 2007), the Supreme Court was found to have providently exercised its discretion in awarding maintenance to the plaintiff-wife in the sum of $3,000 per month until she reached the age of 65.
Likewise, in Nichols v. Nichols, 19 A.D.3d 775 (3rd Dept. 2005), Supreme Court did not abuse its discretion in fixing maintenance at $350 per week until the plaintiff turned 62, a period of six years. In rendering its decision, the court noted that the Defendant earned $96,910 annually, while the plaintiff received only $18,056 annually from a disability retirement pension and earnings from part-time employment. The court also considered the plaintiff’s age and poor health, the gross disparity between the parties’ incomes, and the unlikelihood of plaintiff becoming self-supporting. Id.
In Taylor v. Taylor, 300 A.D.2d 298 (2nd Dept. 2002), the defendant contended that the Supreme Court erred in continuing his maintenance obligation until the plaintiff-wife attained the age of 65 or until he retired, whichever occurred later. The parties were married for over 27 years when the action was commenced. The plaintiff had ceased working outside the home to raise the parties’ children, and the parties stipulated that her medical condition precluded gainful employment in the future. In contrast, the defendant was steadily employed during the marriage and had the potential to increase his future earnings. Given the disparity in the parties’ financial circumstances, the lower court was found to have providently exercised its discretion in directing the defendant to pay maintenance until the plaintiff became eligible for full Social Security benefits at the age of 65, or until the defendant retired, whichever occurred later, or until the death or remarriage of the plaintiff. The appellate court opined that, considering the factors relevant to an award of maintenance, particularly the plaintiff’s inability to earn any income, the Supreme Court providently exercised its discretion in determining that the plaintiff was entitled to maintenance payments sufficient to meet her reasonable expenses.
In Brzuszkiewitz v. Brzuszkiewitz, 28 A.D.3d 860 (3rd Dept. 2006), the appellate court rejected defendant’s contention that Supreme Court abused its discretion by awarding plaintiff non-durational maintenance. The matrimonial action was filed after the parties had been married for 23 years and had three children, one of whom still was under 21 years of age at the time of the appeal. The record reflected that Supreme Court considered the relevant statutory factors, giving particular emphasis to the disparity between the parties’ incomes, plaintiff’s age, her lack of assets, and defendant’s dissipation of assets. The defendant earned $55,000 per year, and his income was likely to increase before he retired. The plaintiff received only $22,000 per year from her employment and had little prospect of any significant increase before she retired, given that she was 57 years of age at the time of trial and had limited earning capacity due to her arthritis and severe hearing loss. The record also supported Supreme Court’s finding that plaintiff’s income from her pension and Social Security after retirement would be less than her current earnings, which were already insufficient to meet her modest monthly expenses. Those factors all militated in favor of an award of permanent maintenance, and the record showed that the lower court appropriately balanced plaintiff’s needs with defendant’s ability to pay.
Likewise, in Cameron v. Cameron, 51 A.D.3d 1165 (3rd Dept. 2008), inasmuch as the record reflected that Supreme Court gave appropriate consideration to the pertinent factors set forth in Domestic Relations Law §236(B)(6)(a), the appellate court rejected plaintiff’s argument that the court abused its discretion in awarding defendant non-durational maintenance.
In Kaplan v. Kaplan, 21 A.D.3d 993 (2nd Dept. 2005), the mother was awarded maintenance in the sum of $7,500 per month for 5 years. Contrary to the father’s contention, the maintenance award was a proper exercise of the trial court’s discretion, taking into consideration the relevant factors, including the parties’ pre-separation standard of living, the separate property retained by each party and their respective net equitable distributive awards of marital property, the mother’s absence from the work force as a certified social worker for most of the period following the birth of the parties’ special needs child, the mother’s continued role as the primary caretaker of a special needs child, the father’s significantly higher earning capacity as a successful partner in a radiology practice, and the short duration of the parties’ marriage.
In Saylor v. Saylor, 32 A.D.3d 1358 (4th Dept. 2006), the record established that the parties were married for 30 years, that the defendant was the primary breadwinner throughout the marriage, that the plaintiff stayed at home with the children or worked part-time for most of the marriage, thereby delaying her career prospects, and that there was a large disparity in the incomes of the parties. The Fourth Department upheld the lower court’s maintenance award on appeal, determining that the Supreme Court properly set forth the factors it considered in determining the amount and duration of the maintenance award.
Thus, each divorce case where maintenance is sought needs to be carefully evaluated on its merits to establish whether maintenance would be appropriate under the pertinent factors set forth in Domestic Relations Law §236(B)(6)(a).

Temporary Maintenance and Prenuptial Agreements

Thursday, August 28th, 2008

While a pre-nuptial agreement might restrict or waive a spouse’s right to maintenance and equitable distribution, it may not bar temporary relief, including temporary maintenance, interim counsel fees, and a temporary injunction against the disposing of marital property. Solomon v. Solomon, 224 A.D.2d 331 (1st Dept. 1996). In cases where the parties’ pre-nuptial agreement specifically provides that no maintenance will be awarded pendent lite, however, courts have held that no temporary maintenance should be awarded. See, e.g., Arzin v. Covello, 175 Misc.2d 453 (Sup. Ct., New York County 1998).

In Forsberg v. Forsberg, 219 A.D.2d 615 (2d Dept. 1995), the Second Department upheld the validity of the parties’ pre-nuptial agreement. Nevertheless, the appellate court found that Supreme Court did not improvidently exercise its discretion in awarding the wife $200.00 per week in temporary maintenance. The Second Department noted that, “Generally, the remedy for any seeming inequity in the award of temporary maintenance is a speedy trial at which the rights of the parties may be fully determined.” Id. at 617.

Thus, any pre-nuptial agreements must be carefully drafted to specifically prohibit any claims for temporary maintenance.

Family Court Lacks Power to Modify Maintenance Provision in Separation Agreement

Thursday, August 21st, 2008

In a recent decision, Johna M.S. v. Russell E.S., the Court of Appeals held that the Family Court lacks power to modify maintenance provisions contained in the parties’ separation agreement. The separation agreement that the wife and the husband both signed, explicitly stated that the wife is “completely disabled” and will be in need of maintenance “for the remainder of her life”. The agreement provided for current maintenance payments of $100.00 per week payable to the wife and recited that this being only a determination of her “present” need and his “present” economic circumstances. It further stated that the wife could if need be seek a “modification” of those sums in a “de novo” proceeding in a court of “appropriate jurisdiction”. A divided Court of Appeals held that the Family Court is not such an “appropriate” court and that in respect of spousal (as opposed to child) maintenance, family court lacks subject matter jurisdiction of a “modification”.

The Court pointed out that there was no risk that the wife would become a public charge. According to the Court of Appeals, the danger of a spouse becoming a public charge is the only circumstance in which, under Family Court Act § 463, the Family Court can modify a separation agreement when the matrimonial action has not been brought as of yet.

A key factor in Johna M.S. was that Family Court lacks “equity” jurisdiction. As Judge Smith points out in his dissent, the prior cases held that Family Court’s attempt to “modify” such a separation agreement amounts to a kind of “reformation or rescission”, which are equitable remedies: they seek to alter the parties’ agreement and there was no effort by the wife to do that here. On the contrary, the agreement itself contemplated modification, wholly negating the “equity” analogy. As a result, the disabled wife’s only choice is to either accept maintenance of $100.00 per week as permanent, or to sue in supreme court for a divorce or separation, where she will be able to seek a greater amount of maintenance.

Child Support and Imputed Income

Thursday, August 21st, 2008

It is not infrequent for the non-custodial parent to claim an annual income far less than he/she actually earns. In those situations, the courts can impute additional income to the party paying child support. As held by the Appellate Division, Second Department, in Strella v. Ferro, the court “need not rely upon the party’s own account of his or her finances, but may impute income based upon the party’s past income or demonstrated earning potential.” The imputed income can be established in several different ways.

One way to establish that a party’s actual income is higher than his/her reported income is to demonstrate how his/her reported lifestyle could not be supported by the reported income.

In Strella, the father claimed that he had been unemployed and only recently begun to earn $500 per week despite having recently earned as much as $101,000 per year. The Court imputed an income of $96,000 to the father. In doing so, the Appellate Court noted that:

Here, the father’s claimed annual household expenses were approximately double his claimed annual income in 2004 and 2005. Additionally, his financial data did not indicate that he used money from his savings or that he incurred greater debt to pay the remaining amount of his annual expenses not covered by his average annual income. During the relevant period, he did not liquidate any of his investments, he had no outstanding balance on his home equity line of credit, and his credit card statements showed no unpaid balances of a size and nature to correspond to his household expenses.

In Barnett v Ruotolo, the Appellate Division, Second Department, 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. In that case, the father did not testify and chose to rely on the financial documentation he had submitted. 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. The Appellate Division held that lower court properly exercised its discretion in imputing income based upon the father’s self-reported financial affidavit for the purpose of calculating his child support obligation.

If the party’s expenses exceed his/her reported income, and there is no obvious diminution of the party’s assets, then the reported income is likely to be under-reported. Under those circumstances, the court should look beyond the filed tax return to calculate the appropriate child support amount.

The court can also impute income by averaging what was reported on most recent individual tax returns. In Y.W., v. T-T.J., the Appellate Division, First Department, reversed a child support order of $3,288 per month and remanded the case back for recalculation of the basic child support obligation. The Appellate Division 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.

Massachusetts Same Sex Marriage and Same Sex Couples Residing in New York

Wednesday, August 6th, 2008

On July 29, 2008, the Massachusetts House of Representatives voted overwhelmingly to repeal the 1913 law that prohibited non-resident gay and lesbian couples from marrying in Massachusetts, unless their home state also would recognize their marriage. Now that both the Senate and the House have passed the legislation to repeal the 1913 law, the bill will go to Governor Duval Patrick, who is expected to sign it. As a result of the repeal of the statute, gay and lesbian couples residing in other states would now be permitted to marry in Massachusetts, even if their home states would not permit them to marry in their home states.

While New York will not allow same sex couples to wed, it will recognize marriages performed in jurisdictions that allow same sex marriage. In doing so, the New York courts will follow the precedent set in Martinez v. County of Monroe. In that case, the plaintiff brought a challenge to Monroe Community College’s denial of health care benefits to the female partner of a female student. The Appellate Division had considered the following facts. On July 5, 2004, Patricia Martinez married her same-sex partner, Lisa Ann Golden, in the Province of Ontario, Canada. Ms. Martinez was an employee of Monroe Community College, in Rochester, New York. On the basis of that marriage, Ms. Martinez applied to the college two days later, on July 7, 2004, for spousal health care benefits for Ms. Golden. The College admittedly provided health care benefits for the opposite-sex spouses of its employees. However, on November 24, 2004, the College’s Director of Human Resources denied the plaintiff’s application for spousal health care benefits. The plaintiff then commenced an action seeking, among other things, a declaration that the College’s failure to recognize her marriage for purposes of her spousal health care benefits application violated her rights under the Equal Protection Clause of the New York State Constitution and Executive Law §296.

In deciding the couple’s rights to insurance coverage, the Appellate Division, Fourth Department, had to decide whether the parties were legally married. It held that if a marriage was valid in the place where it was entered, “it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute”. The Court then pointed out that by applying the “marriage-recognition” rule, New York has recognized a marriage which would have not been valid if solemnized in New York.

The Appellate Division concluded that Ms. Martinez’ marriage to Ms. Golden, which was valid in the Province of Ontario, Canada, would be entitled to recognition in New York. The Court concluded that absent express legislation to the contrary, prohibiting the recognition of same-sex marriages, such marriages would be entitled to recognition in New York.

Following the decision in Martinez v. Monroe County, in the case Beth R. v. Donna M., Acting Supreme Court Justice Drager ruled that a same-sex marriage, validly entered into in a jurisdiction that allows same-sex marriages, would be entitled to full legal recognition in New York. This is the first time that a New York court recognized a same sex marriage in the context of a same-sex divorce action.

The decision went further, applying the expanding theory of equitable estoppel to address the issue as to whether Beth’s motion for declaration of her parental rights can be entertained by the court. Her legal position was in question since she did not legally adopt the two children but served as their mother in fact. The Court concluded that “the facts here warrant granting Plaintiff’s motion to enable this court to determine whether the best interests of the children warrant granting custodial rights to Plaintiff.”

Earlier this spring, New York Governor David A. Patterson has issued an directive requiring all New York State agencies to offer gay couples, wed in jurisdictions that allow same sex marriage (like Canada, Massachusetts and now California), the same legal rights as enjoyed by heterosexual couples.

All of the above is likely to make same sex marriage a reality in New York State, despite a lack of statutory authorization by the New York Legislature. New York couples will be able to travel to Massachusetts with the sole purpose of getting married and have their marriage recognized in the State of New York.

New Child Support Surcharge

Wednesday, August 6th, 2008

New York has recently made changes to its child support enforcement statutes to comply with the new federal requirements. Changes to the fee for child support enforcement services followed a new federal requirement. The states are required to charge an annual fee of $25 in every child support case in which $500 is collected during the federal fiscal year. The fee applies only to those for whom the support is being collected and who never received public assistance. For those who have received pubic assistance, the statute increases the pass-through charge from $50 to $100, as of Oct. 1, 2008, and to $200 as of Jan. 1, 2010, when two or more children are involved.

Parent’s Obligation to Pay College Expenses Does Not Always Terminate at the Age of 21

Friday, August 1st, 2008

In New York State, a parent’s obligation to pay child support terminates when the child reaches the age of 21. However, in situations where a parent is charged with the financial responsibility of paying for the child’s college education, this support obligation may extend well beyond the age of 21. In the case of Lamb v. Amigone, 12 A.D.3d 1165 (4th Dept. 2004), the Appellate Division, Fourth Department, held that unless the parties’ Separation Agreement made a specific reference to parental contribution toward college expenses terminating at the age of majority, the parental college expense contribution continued beyond the age of 21.

That result was also reached by the Appellate Division, Fourth Department, in Schonour v. Johnson, 27 A.D.3d 1059 (4th Dept. 2006), where the Court held that where “[i]n their stipulation, the parties did not place any age limitation on their mutual promises to contribute to the costs of their daughters’ undergraduate college educations”, the appellant was obligated to pay for his daughters’ four years of college education regardless of their age.

Similarly, the court can order payment of college expenses even where the child reaches the age of majority if special circumstances exist. See Domestic Relations Law § 240 [1-b] [c] [7]; also, Krouner v. Urbach, 267 A.D.2d 575 (3rd Dept. 1999); Smith v Smith, 174 AD2d 818, 819 (3rd Dept. 1991).

Thus, both stipulations of settlement and settlement agreements must be carefully prepared and reviewed to make sure that they conform with the parties’ intent. Otherwise, the parties may find themselves in court, relitigating provisions of their settlement many years later.

Criminal Penalties Related to Child Support

Friday, August 1st, 2008

New York has recently amended two sections of the Penal Law, §260.05 and §260.06, which make it a crime for a parent to voluntarily reduce his or her income, terminate employment or fail to seek employment to circumvent an order of child support. Specifically, §260.05, non-support of a child in the second degree, provides that:

A person is guilty of non-support of a child when:

1. being a parent, guardian or other person legally charged with the care or custody of a child less than sixteen years old, he or she fails or refuses without lawful excuse to provide support for such child when he or she is able to do so, or becomes unable to do so, when, though employable, he or she voluntarily terminates his or her employment, voluntarily reduces his or her earning capacity, or fails to diligently seek employment; or
2. being a parent, guardian or other person obligated to make child support payments by an order of child support entered by a court of competent jurisdiction for a child less than eighteen years old, he or she knowingly fails or refuses without lawful excuse to provide support for such child when he or she is able to do so, or becomes unable to do so, when, though employable, he or she voluntarily terminates his or her employment, voluntarily reduces his or her earning capacity, or fails to diligently seek employment.

Penal Law §260.06 makes such failure to support a felony if a person was convicted of violating Penal Law §260.05 within the last 5 years. Such charges are available in conjunction with other remedies available to the recipient of child support under the Family Court Act, the Domestic Relations Law and the Judiciary Law. Both sections take effect on November 1, 2008.