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Dividing Photographs and Other Mementos in Divorce

Sunday, April 18th, 2010

While the parties are married, they tend to accumulate personal mementos such as photographs, videos, recording, pictures, drawing and other items that represent their memories of people and places.  For many people, those photographs and videos of their children are precious and irreplaceable.  For that very reason, the courts are forced to get involved in dividing such items since parties tend to have a difficult time dividing them.

In a recent case, M.R. v. E.R., 2010 N.Y. Slip. Op. 50575(U) (Sup. Ct. Nassau Co. 2010), the court demonstrated how these issues should be approached and resolved.  In M.R., the parties resolved all of the issues in their divorce by stipulation, with the sole issue left unresolved that of the right to numerous photo albums, which contain more than 7000 photos of the parties and their children which were taken during the course of their marriage.  The husband moved for an order directing that he be awarded the photo albums and the wife cross-moved for the same relief.

In a decision and order dated November 13, 2010, the court set the motion and cross motion down for a hearing after noting that the issues raised in the papers concerned equitable distribution which were not resolvable on paper submissions.  At the time that the hearing was conducted on April 6, 2010, neither party was represented by counsel.  After hearing, the court made the following findings of fact and conclusions of law with respect to the limited issues addressed therein. The court noted that the parties rejected all settlement attempts, and at the hearing, maintained their intractable and opposite positions, to wit, to each keep all photo albums.  The court also noted that the parties did previously attempt to settle the issue, and seemingly agreed that the husband would retain all photo albums and share equally in paying the cost of reproducing the photographs contained therein. The wife testified that the agreement was based on the parties’ understanding that the quality of reproduction would be satisfactory.  The parties paid more than $2,100 to scan the photographs onto disc(s), which were admitted into evidence.  As noted, other than what is described above, there was no signed or notarized agreement regarding the distribution of the photo albums.

The court found that the husband was intricately involved with taking, compiling and cataloging the thousands of photos at issue.  In this regard, the husband testified in great detail about his meticulous cataloging of photographs, love of photography; he equated his collecting of photographs of family with the hobby of collecting rare books.  The husband described the Wife’s involvement with this process as limited, and often, antagonistic.  He believed that his wife had manufactured a dispute over the photographs, not out of any real desire to obtain them for sentimental or other qualitative value, but out of some vindictive desire.

The wife gave somewhat conflicting testimony and the court found that the wife had some involvement with the compilation of photos, but that such involvement was far more limited than what she testified to at the hearing.  She testified to her dissatisfaction with the reproductions, and several photographs (printed from disc) containing imperfections/problems were admitted into evidence in support of her contentions.

The court has reviewed the photographs admitted into evidence both on disc and in photo albums.  The disc appears to contain the contents of 75 photo albums, most of which have approximately 100 photographs. The quality of photos contained on the disc is, to the court’s view, satisfactory for the most part, although it does appear that the photographs on disc are not exactly equivalent in quality to the “hard” photographs in the albums admitted into evidence.  The vast majority of photos are of the children alone, or (apparently) with relatives or friends.  Many photographs depict vacation places or sites visited by the parties themselves or with their children. On disc, and in the albums admitted into evidence, the husband is pictured in numerous photos; the wife is pictured in far less photographs. The court accepted as credible the husband’s testimony regarding the wife’s general apathy with respect to the photographic process throughout the marriage and to his greater interest in retaining the photos, and rejected the wife’s contention that the reason she does not appear in many photographs is because she was either holding the camera or did not otherwise wish to be photographed. However, the court did not conclude that the wife desired the albums, which contain many photographs of the parties’ children, for completely vindictive reasons.

Taking into account the previous agreement of the parties, and other facts, which the court considered to fall within the “catch all” factor required to be considered in making an equitable distribution award, the court hereby awards the wife 25% of the original photos; the husband is awarded 75% of the photos.  The percentages are approximate because the court held that the selection of the photos will take place in accordance with the following method, or if parties can agree any other method.  Starting with the first album, the wife shall, counting from the first page thereof, be entitled to receive every fourth original photograph in that album until reaching the end of the album.  Selection shall continue in like manner with respect to each successive album.

In my opinion, it is impressive that the court took the time to address this issue.  In general, courts’ time is limited, and most lawyers do not want to get involved with the issues dividing such personal property. Here in Rochester, a common practice is to refer the parties to the Center for Dispute Settlement to resolve any issues involving personal property and possessions.  The problem with this approach is that the Center does mediation, and, if the parties cannot agree, they are forced to come back to the court.  I generally counsel my clients that they should make every effort to resolve those disputes since it is expensive to litigate them.

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Posted in divorce, Domestic Relations Law, equitable distribution, Family Law, New York Law, Supreme Court | No Comments »

Are Lifetime Medical Insurance Benefits Subject to Equitable Distribution?

Saturday, April 10th, 2010

Once in a while I see a divorce action where one of the parties to the action is entitled to lifetime medical insurance benefits as a result of his/her employment.  For obvious reasons, such benefits may be of great value to one or both parties.  What happens if one of the parties makes an argument that such benefits are subject to equitable distribution?

In Henig v. Henig, 2010 N.Y. Slip. Op. 50546(U) (Sup. Ct. Nassay Co. 2010), the husband was a former New York City Police Officer who retired in 2007. Since his retirement on December 31, 2007, he has been entitled to and does receive lifetime medical, dental and vision benefits for himself, wife, and the parties’ children.  Wife argued that the medical insurance is a marital asset and subject to Equitable Distribution, and/or equals a benefit to be included in determining husband’s income.

Wife argued that the Domestic Relations Law contemplates an expansive view of marital property and analogized the lifetime health benefits to a pension insofar as such benefits are an asset, received only upon retirement.   She claimed that husband’s rights to the coverage matured as of his retirement, and Wife has rights independent of the husband, i.e., if there were no divorce and husband were to die, Wife and children would still receive benefits.

While wife made that argument, however, her lawyer had not submitted any documentary evidence, specific to the plan, to substantiate these claims.   Wife’s attorney also argued that lifetime benefits, like a pension, are contractual rights, which have some value because they are received in lieu of higher compensation, which husband would have earned otherwise, however, wife’s counsel again provided no proof to substantiate this claim.

Husband argued that since enactment of DRL §236 B, neither the Court of Appeals nor the four appellate divisions have held that employee-subsidized health insurance benefits are marital property subject to Equitable Distribution.  In fact, in contemplation of the loss of such health benefits, DRL§255(a) directly addresses the issue stating that ” once a judgment is signed a party there to may or may not be eligible to be covered under the other party’s health insurance plan.” Husband’s lawyer also argued that amendments to DRL§236(B) provide that loss of health insurance benefits upon dissolution of marriage are factors that a court must consider for the purposes of determining maintenance and Equitable Distribution, but that such benefits are not itself an asset, and if the Legislature intended that such benefits be included in the definition of marital asset, it would have done so as it has amended and modified other provisions concerning health insurance.

Husband further argued that wife may elect continuation of coverage under a COBRA option, or she could obtain her own health insurance benefits through full-time employment, the cost of which is a consideration in her support award, if any.  Wife’s available remedy through the election of COBRA coverage would ensure the avoidance of any possible double-dipping by ordering the husband, to pay for her health insurance.  Husband’s counsel, however, has not submitted any proof of the availability of a COBRA option to wife upon dissolution of the marriage, nor was there any proof presented with as to wife’s ability to obtain benefits through employment.

As far as the health insurance benefits themselves, the husband currently pays $15.32 per month for such benefits and an annual deductible $300.00.  The continuation of the benefits is at a continued cost to husband, and his failure to make such payments will result in the cessation of such benefits.  In further support of the proposition that lifetime health benefits are not defined like a pension, husband’s lawyer asserted that wife has already received her marital portion of the insurance having enjoyed its benefits during the marriage, and even the period after husband’s retirement and until such time that the Judgment of Divorce is entered.  Furthermore, he argued that upon divorce Husband will pay the monthly premium from his separate property, and continuation of the health insurance policy is conditioned upon payments made from separate property and therefore any marital right to the insurance terminates upon divorce.

Wife’s divorce attorney cited Walek v. Walek, 193 Misc 2d 241 (Sup. Ct. Erie Co. 2002), where the trial court held that health insurance benefits were a marital asset and subject to Equitable Distribution. The court in Henig found that case distinguishable since in Walek, the husband used a portion of his sick time, which could have been paid to him directly, to fund the 10% required premium payment necessary to receive those post-retirement, lifetime benefits.  The sick time had a value, which was arguably marital property, which marital property was then used to directly fund those lifetime benefits.

Section 255 of the Domestic Relations Law states in pertinent part that:

A court, prior to signing a judgment of divorce or separation, or a judgment annulling a marriage or declaring the nullity of a void marriage, shall ensure that:

1. Both parties have been notified, at such time and by such means as the court shall determine, 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.
2. If the parties have entered into a stipulation of settlement/agreement on or after the effective date of this section resolving all of the issues between the parties, such settlement/agreement entered into between the parties shall contain a provision relating to the health care coverage of each party; and that such provision shall 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.
***

Section 236 B(6) of the Domestic Relations Law states in pertinent part that:

In determining the amount and duration of maintenance the court shall consider:

(11) the loss of health insurance benefits upon dissolution of the marriage; and
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The trial court held that the threshold question was whether the lifetime health benefits constituted property and the wife has failed to submit proof establishing this.  Even if it were to be deemed property, wife has failed to provide the court with a sufficient showing to justify classifying such benefits are “marital property” or that  the post-retirement lifetime benefits involved a reduction in husband’s earned wages in order to obtain such benefits or that these lifetime benefits are provided through the employer utilizing funds set aside from a portion of the husband’s income earned through his employment.  She did not allege that husband had an opportunity to “opt out” of such benefits in exchange for higher wages.

Additionally, the argument with respect to the de minimus amount husband is required to pay for the continued health insurance and that husband’s cost for such comparable medical benefits pales in comparison to that which it would cost wife was not persuasive.  Even if this argument were accepted, the loss of benefits for one spouse has been contemplated by the Legislature in its amendment to the Domestic Relations Law to include the loss of health insurance benefits in the determination of maintenance.  Although wife’s attorney argued that such savings for Husband constitutes an asset to which Wife contributed, this argument did not persuade the court.

What is the final lesson of Henig?  I agree with the court that the health benefits are not marital property as contemplated by the Domestic Relations Law.  Furthermore, it was the intent of the Legislature to exclude such benefits from the totality of marital assets, as evidenced by the amendments to the Domestic Relations Law that specifically ensure that such loss of benefits by a spouse post-judgment is a consideration in the determination of maintenance, as well the recent language adopted to ensure that all parties are aware of the possibility of loss of such health benefits.  Wife was not left without a remedy, since the future cost of health benefits is a consideration for any award of maintenance and Equitable Distribution.

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Posted in divorce, Domestic Relations Law, equitable distribution, Family Law, health insurance, New York Law, Supreme Court | No Comments »

Update on Dissolution of Out-of-State Civil Unions

Saturday, April 3rd, 2010

I have previously written regarding the problem posed by out-of-state civil unions.  Under New York law, while such unions are recognized through the principles of comity, New York does not have any legislation that addresses how these unions may be dissolved once one or both of the parties reside in New York.

The prior decision, made by the trial court, stated that the court would have jurisdiction to address dissolution of the civil union.  However, the court was searching for the way to accomplish this and suggested that the complaint be pled to seek dissolution of a civil union, as opposed to a divorce, as a complaint was plead initially.  As a trial court decision, B.S. v. F.B., did not carry a significant weight of authority and would not be binding on other trial courts.

Now we have the first appellate level decision to address this issue.  In Dickerson v. Thompson, 2010 N.Y. Slip. Op. 02052 (3rd Dept. 2010), the Appellate Division, Third Department, held that New York court have subject matter jurisdiction “to entertain an action for equitable and declaratory relief seeking dissolution of a civil union validly entered into outside of this state.”  The court did not determine the scope of the relief that may be available in such action.

What is obvious from the decision is that the Appellate Division believed that the courts had authority to handle such cases, but was struggling come up with the way to accomplish the dissolution.  What makes it difficult, is the fact that when a divorce takes place, the court will address such issues as custody, child support, spousal maintenance, and equitable distribution.  All of the above issues are resolved in accordance with the provisions of the Domestic Relations Law.  What is unknown is how the courts will handle custody, child support, spousal maintenance and equitable distribution in dissolution of a civil union, something that apparently carries less weight in New York courts than a traditional marriage.  Does entering into a civil union create a potential entitlement to a spousal maintenance?  I don’t know the answer to that question, I suspect that the courts do not know the answer to it either.  It is quite likely that New York legislature will have to address these issues and, until then, the courts will try to come up with some ways of addressing these issues.

For a divorce lawyer, the above represents an excellent example of uncertainty created by the lack of uniformity in the states’ treatment of same-sex relationships. It also brings up a host of interesting legal issues that attorneys must recognize in handling similar situations.

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Posted in divorce, Domestic Relations Law, jurisdiction, New York Law, same sex marriage, Supreme Court | No Comments »

Divorce and Reformation of Settlement Agreement

Sunday, March 28th, 2010

I have previously written about vacating settlement agreements on the grounds of mutual mistake.  Here is a case where the court actually reformed the parties’ settlement agreement on the grounds of mutual mistake.

In Banker v. Banker, 53 A.D.3d 1105 (3rd Dept. 2008),  the parties’ oral stipulation of settlement, which was incorporated but not merged into their 2005 judgment of divorce, provided that the parties would subdivide a parcel of property located in Delaware County.  However, despite that provision, after the judgment of divorce was entered, the defendant refused to do so.  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 after discovering that the property was encumbered by a restrictive covenant against further subdivision.  In March 2006, defendant moved to reargue and/or renew 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 directed the parties, once the appraisal was complete, to settle the matter in a private auction or buyout.  The appraiser completed the appraisal in June 2006.  By letter dated October 4, 2006, defendant requested the opportunity to offer further proof of value.  Plaintiff 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”.  No dispute existed that the parties’ agreement to physically divide the property could not occur given the restrictive covenant; and even defendant was not attempting to have the parties’ stipulation enforced.  Thus, after giving the parties ample opportunity to reach a new agreement,  the trial court was correct 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 Appellate Division noted that to achieve reformation or recission of the stipulation of settlement, one of the parties should have commenced a plenary action, rather than proceeding by motion but, in the context of this matter, concluded the defect to be nonfatal.  However, the lower court erred in resolving this matter 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 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.

This is an example of a situation where the mutual mistake allowed the court to reform the parties’ settlement agreement.  While those circumstances tend to be limited, the lawyers in Banker recognized that since the property could not be subdivided, it had to be sold or one of the parties would buy out the other party’s interest.  The question of valuation was secondary to the remedy chosen by the court as a result of reformation of the agreement.  At the same time, it is rather surprising that neither divorce attorney was aware of the covenant, since both parties, presumably, had access to the real property records and the property’s abstract of title.

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Posted in divorce, Domestic Relations Law, equitable distribution, Family Law, modification, procedure, Settlement Agreements, Stipulations, Supreme Court | No Comments »

Limitations on Child Support Arrears and Child Support Standards Act

Sunday, March 14th, 2010

One question that I am often asked with respect to child support arrears is whether there is a limit on the amount of child support arrears that can be accrued.  My usual response is that there is only one limitation in the Child Support Standards Act with respect to the limits on child support arrears and it exists solely in situations where the payor’s income is below the amount set by the poverty income guidelines for the single person, as reported by the federal Department of Health and Human Services.

Specifically, where the payor’s annual income is below the poverty income guidelines, then in accordance with the Family Court Act §413(1)(g), then payor’s child support arrears are limited to $500.00.  For 2009, the federal poverty guideline for a single person was set at $10,830.00.  This provision can be very helpful to family law lawyers and their clients since this provision allows for retroactive limitation on child support arrears, but it is limited to those situation where the party who owes child support has an extremely low level of income.

There are some limitations even in situations where the payor’s income was below the poverty guideline amount.  The party charged with paying child support couldn’t have voluntarily reduced his/her income, and must demonstrate inability to earn a higher amount (i.e., cannot have income imputed on the basis of ability to pay or other factors).  On practical level, the most likely situation where this provision becomes applicable is typically where a party becomes disabled and does not seek downward modification of the child support obligation until after child support arrears have accrued.

What is also interesting about the Family Court Act §413(1)(g), is that it directly contradicts Family Court Act §451, which prohibits the court from reducing or annulling arrears accrued prior to the filing of a modification petition unless the party shows good cause for failure to make the application sooner.  The courts were able to harmonize both sections by deciding that if the payor’s income is below the poverty level guideline, then by operation of section 413(1)(g) the arrears had never accrued.  Ronald F. v. Kathy Jo O., 25 Misc 3d 1229 (Fam.Ct. Erie Co. 2009)

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Posted in child support, child support enforcement, Child Support Standards Act, court orders, divorce, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, imputed income, New York Law, procedure, Supreme Court | No Comments »

Update on Progress of New York’s No-Fault Divorce Legislation

Sunday, March 14th, 2010

I have previously written about the lack of no-fault divorce in New York and the highly uncertain future of the bills creating no-fault divorce in New York.  Earlier this month, the New York State Senate Committee on the Judiciary advanced legislation (S.3890/A.9753), sponsored by Senator Ruth Hassell-Thompson and Assemblyman Jonathan Bing, that would allow a judgment of divorce to be granted to either a husband or a wife without assigning fault to either party.  The legislation now moves to the full Senate for consideration.

The legislation would allow for divorce when a marriage is irretrievably broken for a period of at least six months, provided that one party has so stated under oath.  A judgment of divorce can then only be granted if the following issues have been resolved: the equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and expert fees and expenses, and infant custody and visitation rights.  The bill is supported by the New York State Bar Association.

However, the fate of the legislation is still highly uncertain. The bill is opposed by New York State chapter of NOW, as well as other groups.

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Posted in divorce, Domestic Relations Law, grounds, New York Law, Supreme Court | No Comments »

Divorce, Separation and Selection of Tax Status for Filing

Saturday, February 27th, 2010

I have previously discussed some of the tax issues related to divorce, maintenance and dependency exemptions.  As the tax season approaches, here is some additional information that may be of assistance.

In a typical divorce, unless the parties have been legally separated prior to December 31, they are still able file a joint return.   By filing a joint return, both spouses will be jointly and separately liable for any errors, omissions or deficiencies on the tax return.   If the parties are going through divorce, the issues related to division of any tax refunds may also become complicated.

If you are legally separated from your spouse, you are able to file as a head of household if you provided more than half the cost of keeping up a home for a child, dependent parent, or other qualifying relative for more than half the year.  According to the IRS, to claim head of household, you must either be unmarried or considered unmarried on the last day of the year.  In addition, the Abandoned Spouse rule may be applicable.   In order to qualify under the rule, if you and your spouse lived apart for the last six months of the year, you would be considered unmarried for the purpose of this filing status under the Abandoned Spouse rule.  If you meet the other two requirements for this status, you would be eligible to file as Head of Household.  The other two requirements are as follows:  1) paying more than half of the cost of keeping up a home as of the last day of the tax year;  2) a dependent child or other relative lived with you for more than half the year or you have a dependent parent (dependent parents are not required to live with you).

A party is required to file as single if he or she was unmarried as of December 31, or if legally separated as of the end of the year and does not qualify for another filing status.

There are other tax advantages and disadvantages that depend on the filing status elected by the party.  Please note that the above discussion is not tax advice, and these issues should be discussed with your tax professional.

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Posted in divorce, Family Law, federal law, separation, Supreme Court, taxes | No Comments »

Divorce, Monetary Obligations and Statute of Limitations

Saturday, February 20th, 2010

It is is not uncommon for a party to obtain a right to receive a sum of money in the judgment of divorce.  That right usually comes in situations where there are assets that are subject to equitable distribution.  It is also not uncommon for the parties to make their own agreements following the judgment of divorce as to how such sums of money will be paid.  One issue that would raise a concern for me would be a situation where the payment is extended over a long period of time.  It is a concern because a statute of limitations may come into play and, possibly, bar recovery.

In Woronoff v. Woronoff, 2010 N.Y. Slip. Op. 01479 (2nd Dept. 2010), the Appellate Division held that where a monetary award in the judgment of divorce is not reduced to a monetary judgment, such award is subject to a six year statute of limitations.  In Woronoff, the parties were divorced by judgment dated December 21, 1988, which provided, inter alia, that the plaintiff would pay the defendant the sum of $87,500 for her share of his businesses.  In 1990, the parties entered into an agreement which modified this portion of the judgment so as to, among other things, set forth a different payment schedule for the distributive award.  This agreement was not reduced to a court order.  The defendant never entered her distributive award as a money judgment nor sought to enforce collection thereof until 2007, when she obtained a clerk’s judgment against the plaintiff.  Thereafter, however, the plaintiff successfully moved to vacate the clerk’s judgment.

The plaintiff then commenced an action, inter alia, to recover damages for wrongful procurement of the clerk’s judgment including the counsel fees he expended in moving to vacate the clerk’s judgment.  The defendant’s first counterclaim asserted that the plaintiff had failed pay her the full amount of her distributive award for her share of his business, and alleged damages resulting therefrom in excess of $150,000.

The Appellate Division held that contrary to the defendant’s contention, the distributive award made to her in the divorce judgment for her share of the plaintiff’s business was not a “money judgment” subject to a 20-year statute of limitations.  Instead, her claim to enforce this award was governed by the six-year statute of limitations set forth in CPLR 213(1) and (2).  Accordingly, since the defendant did not seek to enforce her distributive award nor reduce it to a money judgment until well beyond six years after the divorce judgment was entered, and even well beyond six years after the parties entered into their modification agreement, the Supreme Court properly dismissed this counterclaim as time-barred.

The lesson of the above case for divorce lawyers is that in the event there is a monetary award in the judgment of divorce, it is a good idea to reduce it to a monetary judgment.  Alternatively, if the parties agree to extend the payment of the amount due beyond six years, such agreement should be reduced to writing and should include a provision specifically waiting statute of limitations.

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Posted in divorce, Domestic Relations Law, equitable distribution, Family Law, New York Law, procedure, Supreme Court | No Comments »

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.

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Posted in custody, divorce, evidence, Family Court, Family Law, New York Law, procedure, Supreme Court, visitation | No Comments »

Order of Protection, Divorce and Surveillance

Sunday, February 7th, 2010

As a divorce attorney, I am periodically asked if hiring a private investigator to follow a spouse is acceptable and whether, if found out, it would result in any negative repercussions. I usually respond that surveillance is acceptable; however, there may be some evidentiary issues with the results that may make them inadmissible during the trial. A recent decision shed some light on these issues.

In Anonymous v. Anonymous, 2010 N.Y. Slip. Op. 20024 (Sup. Ct. Orange Co. 2010), the husband has brought a motion for summary judgment seeking to dismiss the wife’s petition which alleged the husband violated an order of protection pursuant to a settlement stipulation in Family Court.  The order of protection, entered without any finding of fault against the husband, directed him to refrain from committing a family offense or criminal offense against the wife and to stay at least 1000 feet away from the residence and place of employment of the wife except for court-ordered child visitation or to attend church services on Sundays.  The wife’s violation petition alleged that the husband retained a private investigator who recorded on DVD the wife entering a motel and having an affair with a priest assigned to the Church, where the wife was employed.  The wife alleged that the husband furnished the DVD to her superiors at the Church resulting in the wife being forced to resign.  The wife contended that there was no legitimate purpose in the husband having her followed by a private detective and delivering the DVD to Church officials and that doing so was intended by the husband to cause her to lose her employment and cause her personal humiliation and suffering.  The wife claimed that such conduct constitutes a violation of the order of protection.

In opposition to the husband’s motion to dismiss the petition, the wife’s attorney alleges the husband hired the private detective after he filed his answer and counterclaims in the divorce action.  The wife’s attorney contended the husband was not legally bound to turn over the DVD to Church officials.  The wife’s attorney argued that the husband violated the order of protection by acting through an agent, the private detective he hired, to follow and record the wife’s activities, and then turning over the DVD to the church causing the wife to lose her employment.

The court held that it was not improper for the husband to retain the services of a private investigator since the hiring of a professional licensed private investigator in a matrimonial action to gather evidence is for a proper and legitimate purpose.  The husband had the right to gather evidence up to the date of trial in defense of the matrimonial action and in support of his own counterclaims.  Under the circumstances, the hiring of the private investigator, in and of itself, was not an unlawful intrusion upon the rights of the wife secured by the order or protection.

With respect to the question of whether delivering the DVD to the Church officials, which was not necessary for the husband to defend or prosecute the divorce action, raised a triable issue of fact that the husband in having the wife followed and recorded by a private investigator intended to inflict emotional and financial harm upon the wife which might constitute a violation of the order of protection.  Although harassment in the second degree often involves conduct which places a person in fear of their physical safety, the language of the statute does not limit itself to only physical threats. If the husband had the wife followed and recorded by a private investigator for the purpose of gathering embarrassing material to deliver to her employer with the intention to cause her to lose her employment such might qualify as conduct which alarms or seriously annoys another person, and serves no legitimate purpose, constituting harassment in the second degree.

The husband in his motion papers has prima facie demonstrated his entitlement to summary judgment dismissing the petition by evidence showing he did not retain the private investigator for an improper or illegitimate purpose such as harassment or stalking under the Penal Law or intend to make improper use of the private investigator’s work product DVD.  Upon the failure of the wife to demonstrate the existence of a triable issue of fact that the husband committed a crime or family offense against her or otherwise violated the order of protection, the court granted the motion for summary judgment dismissing the petition.

So, the lesson of this case can be summarized as follows.  One, surveillance in divorce cases is a legitimate means of gathering evidence.  Two, surveillance alone will not amount to a violation of an order of protection.  Three, if results of surveillance are delivered to a third party, with possible negative consequences to the party under surveillance, such act may violate an order of protection, if there was no legitimate reason for such disclosure.  If you are seeking to involve a private investigator to follow and observe your spouse or significant other, I would urge you to consult with a divorce attorney before doing so.

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Posted in court orders, divorce, Domestic Relations Law, Family Court, Family Law, New York Law, Order of Protection, procedure, Supreme Court | No Comments »

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