Archive for September, 2008

The Return of Engagement Gifts

Monday, September 22nd, 2008

A person’s right to the return of wedding presents given in contemplation of a marriage that fails to materialize is governed by §80-b of the Civil Rights Law, which permits the recovery of such gifts. The statute provides that:

Nothing in this article contained shall be construed to bar a right of action for the recovery of a chattel, the return of money or securities, or the value thereof at the time of such transfer, or the rescission of a deed to real property when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage which has not occurred, and the court may, if in its discretion justice so requires, (1) award the defendant a lien upon the chattel, securities or real property for monies expended in connection therewith or improvements made thereto, (2) deny judgment for the recovery of the chattel or securities or for rescission of the deed and award money damages in lieu thereof.

This statute permits recovery when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage that has not occurred. It has been held that there is a strong presumption that any gifts made during the engagement period are given solely in consideration of marriage. This presumption is rebuttable, but clear and convincing proof is necessary to overcome it.
In Gaden v. Gaden, 29 N.Y.2d 80 (1971), the Court of Appeals held that fault was irrelevant under Civil Rights Law §80-b, which contemplates situations where one party has directly transferred property to another, as well as situations where the transfer was made by a third party to both of the parties. The Court held that just as the question of fault or guilt has become largely irrelevant to modern divorce proceedings, so should it also be deemed irrelevant to the breaking of the engagement. The purpose of §80-b was to return the parties to the position they were in prior to their becoming engaged, without without rewarding or punishing either party for the fact that the marriage failed to materialize.
Thus, if an engagement does not result in a marriage, the ring or any other gifts given in contemplation of the marriage, should be returned to the party who made the gift. Alternatively, one should be prepared to fight a law suit.

Wife Receives a Credit of 50% of Husband’s Premarital Debt Paid During the Marriage

Monday, September 22nd, 2008

In Mahoney-Buntzman v. Buntzman, 51 A.D.3d 732 (2nd Dept. 2008) the Appellate Division held that the wife should have been awarded 50% credit for student loan debt incurred by husband to obtain a doctoral degree. During the parties’ marriage, the husband took out a student loan in the amount of $48,162.90 to pay for a doctoral degree in education, which was satisfied with marital funds. The wife contended on appeal that the trial court erred in failing to award her a 50% credit with respect to the student loan. The Appellate Division agreed. The husband’s expert testified that the doctoral degree earned by the husband during the marriage did not enhance his earnings, and thus, provided no benefit to the marriage, and there was no distributive award of the value of the doctorate degree to the wife in light of its zero enhanced earning capacity value. As result, the court concluded that the student loan debt was incurred to satisfy the husband’s separate interest and therefore was his own separate obligation. Accordingly, the trial court erred in failing to award the plaintiff a 50% credit, or $24,081.45, for the student loan debt incurred by the husband during the marriage to obtain this degree.
The Appellate Division also agreed with wife’s contention that the trial court erred in not crediting her with 50% of the defendant’s pre-marital debts paid with marital funds during the marriage such as maintenance paid to the husband’s first wife in the total amount of $58,545, and $7,000 paid in 1998 as a settlement of a loan for a boat purchased by the husband before the marriage but surrendered to the bank in 1993 prior to the marriage for nonpayment of the boat loan. The husband’s maintenance obligation to his first wife and the boat loan constituted debts incurred by him prior to the parties’ marriage and were solely his responsibility. Accordingly, the trial court erred in failing to award the plaintiff additional credits of $29,272.50 as to the maintenance payments to the husband’s first wife and $3,500 as to the boat loan.
Thus, with respect to his doctoral degree, the husband was successful in convincing the trial court that the degree did not enhance his earnings. If the wife was successful in establishing that the degree resulted in enhanced earnings, those enhanced earnings would be subject to distribution. Therefore, the husband would owe something to the wife under either scenario.

Good Faith Allegation of Abuse Cannot Be Held Against Accuser in Custody Proceeding

Monday, September 22nd, 2008

Recently, in divorce and custody cases, the so-called “parental alienation” factor has become particularly prominent among the statutory criteria dealing with custody. The court decisions have described “parental alienation” in terms of failure to support the child’s relationship with the non-custodial parent. This particular issue has carried a tremendous force in custody cases, and often was used to override the primary caregiver criterion. The significance of “parental alienation can be explained as follows. If “parental alienation” is proven, it often has resulted in a change in custody despite the long-standing parenting arrangements that have been successful otherwise.
The problem with claim of “parental alienation” is that in some cases judges have treated allegations of abuse and neglect that could not be proven as tantamount to “false” allegations maliciously brought to advance an agenda of alienation. This has placed concerned parents between the proverbial rock and the hard place. If they act in good faith to protect their child, they do so at risk of losing custody. If they don’t act, they are abdicating their parental obligation to protect their child. The Legislature has acted in response to this problem and the Governor has signed into law an amendment to DRL § 240 to provide protection for litigating parents who report abuse or neglect in good faith and based on a reasonable belief that the allegation is legitimate.
Domestic Relations Law § 240, subdivision 1 (a) was amended to provide that a good faith allegation of abuse cannot be held against the accuser in child custody proceedings. The amendment to the statute is intended to ensure that the accuser engaging in a good faith effort to protect or seek treatment for the child due to the child abuse or neglect cannot have these actions used against them when determining custody or visitation. If a parent makes a good faith allegation based on a reasonable belief which is supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent may not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable actions taken based on that belief. If an allegation that a child is abused is supported by a preponderance of the evidence, then the court must consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court may not place a child in the custody of a parent who presents a substantial risk of harm to that child. Laws of 2008, Ch 538, effective September 4, 2008.

Family Court and Willful Failure to Pay Child Support

Monday, September 15th, 2008

There is a presumption, applicable to child support enforcement proceedings in Family Court that a party, against whom a child support order was issued, has sufficient means to support his/her minor children. See Family Court Act § 437. The evidence that the party directed to pay child support has failed to pay support as ordered, constitutes “prima facie evidence of a willful violation”. Family Court Act § 454(3)(a). Once the petition alleging willful violation of a child support order was filed in the Family Court, the burden then shifts to respondent to adduce some competent, credible evidence of his/her inability to make the required payments. If the requisite showing is not made, the party will be found to have willfully failed to pay child support. Once this finding is made, the party is liable to a range of penalties, including attorneys fees and possible incarceration.

This presumption does not apply to child support enforcement proceedings brought in Supreme Court under the Domestic Relations law. If an enforcement proceeding is brought in Supreme Court, the usual remedies sought are a judgment for any unpaid arrears, attorneys fees and, possibly, a finding of contempt. The burden of proof applicable to contempt proceedings is much higher than that applicable to the proceedings brought under Family Court Act § 437.

Calculations of Child Support in New York

Monday, September 15th, 2008

The New York courts use a statutory guidelines to determine what child support amount the non-custodial parent is obligated to pay. The guidelines as applicable to the Supreme Court in actions for separation and divorce are contained in Domestic Relations Law §240 and its counterpart for the Family Court is contained in Family Court Act §413. New York child support amounts are based partly on the non-custodial parent’s adjusted gross income and partly on how many children are on the order. The court determines the non-custodial parent’s gross income, and then deducts from that amount Medicare, social security tax, New York City or Yonkers tax, and other allowable deductions to establish the non-custodial parent’s adjusted gross income. An identical calculation is performed with respect to the income of the custodial parent. The court then multiplies the combined adjusted gross income by the standard guideline percentage for the number of children. These percentages are 17% for one child, 25% for two children, 29% for three children, 31% for four children, and at least 35% for five or more children. Subsequently, that child support amount is multiplied by the ratio of non-custodial parent’s adjusted gross income to the combined adjusted gross income.

The standard guideline is applied to most parental earnings up to $80,000 (minus certain local and social security tax amounts). This includes any worker’s compensation, disability payments, unemployment benefits, social security payments, and many other forms of income. Beyond $80,000, the courts determine whether or not to use the percentage guidelines, and may consider other factors in determining the full support amount.

The State of New York provides for interest on missed payments and adjudicated arrears at a rate of 9% per year, but only on arrearages reduced to a money judgment by the courts.