Archive for the ‘evidence’ Category

Interference with Visitation May Result in Change in Custody

Sunday, September 4th, 2011

In Keefe v. Adams, 85 A.D.3d 1225 (3d Dept. 2011), the Appellate Division, Third Department, had to address issues related to interference with visitation which were raised by the father who brought a petition to modify existing  custodial and residential arrangement.  The parties had a custody and residential arrangement on the basis of May 2007 consent order which provided for joint custody, with mother having primary physical custody and father having visitation. In August 2009, father sought a modification of custody, alleging that mother moved out of county without his consent and is consistently late in exchanging child at drop-off location.

The court held that a significant change in circumstances occurred which reflected real need to modify parties’ stipulated custody order. The court found that mother admitted to moving with child to different county, 42 miles away from father, without informing him, and parties’ relationship deteriorated to point of inability to discuss important matters concerning their child. Further, mother also consistently arrived between 15 minutes to 2 hours late in dropping child off or picking child up. Mother interfered with father’s visitation rights by arriving late for dropping off and picking up child. The court also held that evidence showed as well that mother promoted her boyfriend as substitute for child’s father and that her relocation both required the child to change schools and hindered the father’s involvement in the child’s life. The father, on the other hand, manifests a markedly greater ability to control his behavior in front of the child, as well as a willingness to foster the relationship between the mother and child. The court noted that while custody with the father will unfortunately separate the child from his half brother, with whom he has a close relationship, the father testified that the half brother would be welcome in his home.

In view of the above circumstances, the court held that an award of sole custody to father with visitation to mother in child’s best interests. The court’s decision to modify existing custodial arrangement is not a common one. In most cases, courts are likely to fashion a less drastic remedy.

Tax Implications in Divorce – Need for Trial Evidence

Sunday, June 5th, 2011

One of the issues that frequently comes up in divorce is cases has to do with tax implications of the divorce action.  Tax issues may involve dependency exemptions, or may involve issues dealing with allocation of taxes on income or assets subject to equitable distribution.  The courts have addressed these issues in the past and have always required some admissible proof with respect to tax implications of the relief sought in the divorce action. However, some parties still fail to present admissible trial evidence that would allow the court to make decisions allocating tax liabilities, if any.

In Bayer v. Bayer, 80 A.D.3d 492 (1st Dept. 2011), the Appellate Division had to address whether the trial court properly disregarded the tax consequences impacting plaintiff’s receipt of fifty percent of monies which defendant had earned in the fiscal quarter preceding commencement of the divorce action.  The Appellate Division held that since defendant failed to present evidence from which the court could determine the amount of such taxes, the trial court acted properly.  The Appellate Division relied upon D’Amico v. D’Amico, 66 A.D.3d 951 (2nd Dept. 2009).  In D’Amico, the court held that “[W]hile this court has recognized that the value of a pension should be discounted by the amount of income tax required to be paid by a party, where the party seeking the discount fails to present any evidence from which the court could have determined the dollar amount of the tax consequences, the computation of the award without regard to tax consequences will be deemed proper”. (citations omitted)

Therefore, if there are tax issues associated with dependency exemptions, maintenance, retirement assets or equitable distribution, in order to have trial court consider those issues , a party must present admissible evidence of any tax consequences that may result. If a party fails to do so, the trial court will not consider any tax implications. As a result, a party seeking the court’s decision with respect to tax issues will have to present expert testimony of an accountant who would be able to present admissible evidence of any tax implications.

Grounds for Divorce Revisited

Monday, April 26th, 2010

I have previously discussed New York’s grounds for divorce and lack of no-fault divorce.  While the cases have traditionally stated that the longer is the duration of the marriage, the higher is the burden of plaintiff with respect to the grounds such as cruel and inhuman treatment.  Recently, I came across the case that left me surprised despite handling many divorce cases here in Rochester over the last 14 years.

In S.K. v. I.K., 2010 N.Y. Slip. Op. 50556(U) (Sup. Ct. Nassau Co. 2010), the plaintiff husband was seeking a divorce on the grounds of cruel and inhuman treatment after 29 years of marriage.  One of the grounds alleged was cruel and inhuman treatment.  Specifically, the husband testified that wife was extremely physically abusive, and that in August of 2005, she attempted to attack him with a Japanese sword.  Husband testified that wife could have killed him if not for the parties’ daughter’s intervention.  He testified that the sharp edge of the sword came within a few inches of his chest. He testified that wife came to the marital residence around 1:00 p.m., and when husband questioned her as to where she had been, wife refused to answer, and stated that she did not have to tell him. He testified that wife began acting “crazy” and began yelling and screaming at him. She then came after him waving her hands and pounding on his chest, striking him repeatedly.  He testified that at the start of the confrontation, the parties were in the kitchen, but that upon escalation of the incident, he ran to the master bedroom, and fearing for his safety, he locked himself in the bedroom for his protection.  He testified that wife began pounding on the door and kicking it with her feet, while screaming and insisting that he open the door.  Husband testified that he heard the parties’ daughter come out of her bedroom, and that she was pleading for the wife to stop.  Fearing that wife would hurt their daughter, he came out of the bedroom and walked towards the kitchen where the wife was holding the large Japanese sword, while their daughter was trying to block wife and stop her from moving forward. Husband testified that he observed the wife pushing their daughter back in an attempt to reach the bedroom, but when she saw husband in the kitchen, she began to charge at him and waive the sword through the sides of their daughter’s body. He testified that the wife became frantic in her attempts to reach him and almost did hit him on the head and parts of his chest.  He testified that he slowly retreated back in the bedroom and locked himself in for the night, fearing that the wife would come back and hurt him in the middle of the night. He did not call the police at any point in this incident, nor did he testify as to any actual injuries inflicted by the wife upon him during the course of the incident.

The parties’ children testified and corroborated the husband’s testimony.  The wife denied the allegations of Husband with respect to the incident involving the Japanese sword.

The trial court, after hearing all of the testimony involving the Japanese sword, held that the husband did not sustain his burden of proof with respect to physical or mental injuries. The testimony was that no one sustained any physical injuries, neither party was seen at a hospital or by any doctor.  The court stated that the husband never contacted the police nor did he seek protection from the Family Court, and he testified that he continuously pleaded with the wife to return to the marital residence to work on their marriage.

Husband provided no testimony from any physicians nor did he produce any medical records.  Accordingly, the trial court held that the husband failed to establish a prima facie showing of cruel and inhuman treatment by the wife, and dismissed that cause of action.

What is surprising about this case is that there was corroborated testimony that the wife engaged in conduct that would have likely resulted in a serious injury or death of the husband, were it not interrupted by the parties’ daughter.  If attempting to kill or seriously injure your spouse with a sword is not cruel and inhuman treatment, it is hard to conceve of the conduct that would actually amount to cruel and inhuman treatment.

In my view, the cases such as S.K. continue to reiterate the need for New York to pass no-fault divorce legislation.  At the same time, the husband’s divorce lawyer should have presented testimony with respect to how this attack affected the husband.  It should have been possible to have the husband evaluated by a psychologist and have psychologist’s testimony presented to the court.  As a postscript, while the trial court did not grant divorce on the grounds of cruel and inhuman treatment, the divorce was ultimately granted on the grounds of abandonment because the wife moved for a period of time to Virginia and said move was unjustified and without an intention to return.

The irony of all of the above is that this case is not unique.  While the facts in S.K. are shocking, there are many marriages that have ended many years ago but cannot be legally dissolved.  Until New York does something about its grounds requirements, similar cases will continue to take place.

Custody, Visitation and Disclosure of Parent’s Psychological Records

Saturday, February 13th, 2010
In this action for divorce and ancillary relief, the defendant-husband (hereinafter “husband”) moves for an Order permitting him to depose the treating therapist of the plaintiff-wife (hereinafter “wife”), Dr. E.C., and authorizing the issuance of a Subpoena Duces Tecum to be served upon Dr. C. instructing her to disclose all of her notes to counsel for the husband regarding her treatment of the wife. The wife opposes the motion claiming that it has no basis in law or in fact. She also cross-moves for various relief which is addressed in this Court’s decision on Motion Sequence 003.
It is the husband’s position that given the wife’s allegations, which he contends are false, that he abused the parties’ son and repeatedly raped her, he has “no choice as a loving, responsible father but to ask that the Court order [the wife's] psychiatrist of 15 years, Dr. C., to turn over the notes and records of L’s extensive psychiatric treatment and that my attorneys be [*2]allowed to take Dr. C.’s deposition regarding her treatment of [the wife] prior to any trial in this case.” According to the husband, he does not seek to hurt the wife, but, rather, wants to help his son. He states that he could not in good faith agree to any final custody arrangement, nor should the Court make a custody determination, without more information regarding the wife’s psychological condition, which, he contends, has allowed her to level these vicious accusations at him. Moreover, Dr. C., the husband states, is the person with the most information about the wife’s medications and how her condition “can be kept in check and how it could potentially worsen over the next 16 crucial and formative years of [the child's] life.”
According to the husband, when he first married the wife he was unaware that she had a condition that required extensive psychological treatment. In fact, he claims that the wife would see Dr. C. 18 times per month and even spoke with the therapist regularly during the parties’ honeymoon. However, it was not until the parties went through the in vitro fertilization process that the husband says that he learned that the wife had been prescribed different types of medication throughout the years and was currently taking 5 milligrams of Valium twice a day. In addition, it is the husband’s belief that the wife has paranoid tendencies evidenced by her telling her attorney who then relayed it to the Court that she was being followed by a van and that a man was taking photographs of her in the park.
In opposing the husband’s motion, the wife points out that the husband has failed to provide any authority which supports his request. While she acknowledges that the parties have put their respective mental conditions at issue by contesting custody, she argues that this does not mean that either party is entitled to pretrial discovery regarding the other’s mental health history. Rather, she states that pretrial review of the parties’ mental conditions and parenting ability is precisely the reason why a neutral forensic evaluator is appointed for custody disputes as one has been appointed in this action.
The wife also contends that it was the husband who repeatedly lost touch with reality, “erupting into screaming tirades that our housekeeper was trying to poison him; he often repeatedly screamed that someone was trying to kill him in the shower through poisonous gas being fed through the water lines; he fired our baby nurse in the middle of the night. . ., claiming she was trying to hurt our son’s penis; he became hysterical when our son flushed the toilet without shutting the lid because poisonous vapors escaped through the toilet; he wrote notes about time travel; he insisted that someone was defecating on our towels even though they were clean; [and] he told our son in front of me that he was capable of killing me just as the character in a movie they were watching had killed his wife. . . .” Additionally, she annexes to her papers affidavits from two individuals who witnessed some of the acts of which she accuses the husband and which describe other allegedly idiosyncratic behavior on the husband’s part. She further alleges that during the marriage the husband sexually, verbally and emotionally abused her, causing her love for him to turn to fear. Notably, she does not controvert the husband’s allegations in connection with Dr. C.
It is well established that pretrial disclosure of privileged medical records is limited, especially in a custody litigation given the sensitive nature of the issues involved and the potential for the abuse of such discovery. See, e.g., Ferguson v. Ferguson, 2 Misc 3d 277 (Supreme Court, Nassau County 2003); Garvin v. Garvin, 162 AD2d 497 (2nd Dept. 1990); Coderre v. Coderre, 1990 WL 312774. As the Coderre, supra , court noted, since the wholesale pretrial discovery of the medical records of one party does not provide any mechanism to ensure that only relevant and [*3]material confidential information is disclosed, these records may contain communications that are “embarrassing, humiliating, potentially damaging and totally irrelevant to the issue of present and future parental fitness.”
However, privileged information may be disclosed “where it is demonstrated that the invasion of protected communications between a party and a physician, psychologist or social worker is necessary and material to a determination of custody. . . .” State ex rel. Hickox v. Hickox, 64 AD2d 412 (1st Dept. 1978) citing, Perry v. Fiumano, 61 AD2d 512 (4th Dept. 1978).Accordingly, this department has adopted a policy which requires that a party’s medical records be reviewed by the Court and that only portions of the records deemed to be relevant and material, if any, be disclosed. Hickox, supra . This policy was recently reaffirmed in the case of Penny B. v. Gary S., 61 AD3d 589 (1st Dept. 2009), wherein the court held on the father’s petition for an award of custody, that the court had acted properly when it conducted an in camera review of the notes of the husband’s therapist and determined that it was unnecessary to release them or for the therapist to testify since the court had sufficient information about the father from other sources.
Based on the foregoing, the Court finds that under the circumstances here an in camera review of Dr. C.’s notes and records concerning the wife is appropriate. Accordingly, Dr. E.C. is directed to produce to the Court all of her notes and records regarding the treatment of the wife for in camera inspection. Such production shall be made no later than January 8, 2010. Upon review, the Court shall disclose any portion of the material which it deems to be material and necessary for the purpose of determining custody of the parties’ child. The husband’s application to depose Dr. C and his request that the Court authorize the issuance of a Subpoena Duces Tecum to be served on her instructing that she disclose all of her notes to counsel for the husband regarding her treatment of the wife is denied.

One issue that often comes in divorce actions, as well as in custody actions, involves disclosure of a party’s psychological or counseling records.  The party seeking the records typically is aware of some damaging information that may contained in them and would like to force their disclosure to the court or the attorney for the children.  The party whose records are being sought typically opposes such demands on the grounds that such records are private and extremely sensitive.  Psychological records may contain information with respect to a party’s psychological condition or mental illness, or other information, that may have impact on the parent’s fitness for custody or visitation.

In a recent case, L.W. v. E.S., 2009 NY Slip Op 52718(U) (Sup. Ct. New York Co.), the court had to address issues dealing with the husband’s motion seeking to depose the treating therapist of the wife , and authorizing the issuance of a Subpoena Duces Tecum to be served upon the therapist, instructing her to disclose all of her notes toattorney for the husband regarding her treatment of the wife.  The wife opposed the motion.  The court engaged in a discussion of the parties’ positions and applicable legal principles.  The court stated that it is well established that pretrial disclosure of privileged medical records is limited, especially in a custody litigation given the sensitive nature of the issues involved and the potential for the abuse of such discovery.

Since the wholesale pretrial discovery of the medical records of one party does not provide any mechanism to ensure that only relevant and material confidential information is disclosed, these records may contain communications that are embarrassing, humiliating, potentially damaging and totally irrelevant to the issue of present and future parental fitness.  However, privileged information may be disclosed where it is demonstrated that the invasion of protected communications between a party and a physician, psychologist or social worker is necessary and material to a determination of custody.  Accordingly, in view of these concerns, the court has adopted a policy which requires that a party’s medical records be reviewed by the court and that only portions of the records deemed to be relevant and material, if any, be disclosed.  Instead of providing unlimited access to the records, the court would usually conduct an in camera review of the notes of the therapist and determine if it is necessary to release them or for the therapist to testify.

The husband alleged that he was not aware of the wife’s psychological issues when he married her and that her psychological condition caused her to accuse the husband of various forms of misconduct.  The husband also alleged that the wife’s condition impacted her ability to parent.  After reviewing each party’s allegations, the court found that under the circumstances here an in camera review of the therapist’s notes and records concerning the wife was appropriate.  Upon review, the court shall disclose any portion of the material which it deems to be material and necessary for the purpose of determining custody of the parties’ child.

The courts approach requests for disclosure of psychological or mental health records carefully since there are significant reasons to limit disclosure of such records.  If the party’s divorce or custody lawyer can demonstrate that such records contain information that likely to be relevant to the parties’ custody or visitation dispute, such records will be disclosed.

Appreciation of Separate Property and Equitable Distribution

Sunday, January 10th, 2010

One issue that periodically comes up in my divorce practice here in Rochester has to do with appreciation of separate property during the marriage.  I have previously written about this issue in the past.  A recent case decided by the Appellate Division, Third Department, Albanese v. Albanese, 2010 N.Y. Slip. Op. 00036 (3rd Dept. 2009), has illustrated a related aspect of this issue.  In Albanese, the critical issue before the court was whether or not the wife’s lawyer was able to establish how much the husband’s law practice has appreciated during the marriage.  In this type of situation, the divorce attorney has to be concerned about two different valuations.  The first one is the valuation of the business at the time of the marriage, and the second one is the valuation of the business at the time of commencement of the divorce action.

However, during the trial, the wife’s divorce attorney appears to have not established what the value of the law practice was at the time of the marriage.  The Appellate Division stated,

Here, the only evidence in the record regarding the value of defendant’s law practice related to the purported value at the time the divorce action was commenced. Plaintiff, who was represented by seasoned counsel and retained an experienced expert, presented no proof of a baseline value at the time of the marriage or of an appreciation in the value of the practice during the marriage. While plaintiff’s role as homemaker and mother to the parties’ children established that she was entitled to a share of any appreciation, there was no evidence offered from which appreciation could be found. Under such circumstances, an award for the value of the law practice was inappropriate.  (Citations omitted).

In such situations, the non-titled spouse bears the burden of proof, and any appreciation in value of such separate property may be subject to distribution if there is a nexus between the titled spouse’s efforts and the increase in value and those efforts were aided or facilitated by the nontitled spouse.  However, without the starting point value, the non-titled spouse simply could not prove her case. As a result, the wife has received no portion of the law practice that has likely appreciated since the parties’ marriage in 1987.

The above illustrates that sometimes even the most obvious issues occasionally escape the attention of counsel.  Therefore, the Appellate Division’s reference to the plaintiff’s attorney as “seasoned counsel” and her expert as “experienced expert” indicates its likely surprise that this issue was overlooked during the trial.