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Family Court Referees and Their Authority to Hear Cases

Sunday, September 18th, 2011

Most of the cases in Family Court are decided by Family Court Judges who preside over most Family Court hearings. The Family Court Judges, here in Monroe County and elsewhere in New York State, typically hear child custody, visitation, adoption, juvenile delinquency and other cases. However, here in Monroe County, Court Attorney Referees hear custody, visitation, and order of protection cases. Family Court Attorney Referees are appointed pursuant to the Family Court Act and CPLR.

One of the first things that takes place in a case before a Family Court Attorney Referee is that the parties and their attorneys will be asked if they will agree to the Referee’s jurisdiction to hear and determine the matter. If the parties agree, the Referee will asked them to sign a stipulation confirming their consent. If the parties do not consent, the case is usually removed and heard by the Family Court Judge.

It is critical for the Referee to make sure that the parties consent to his jurisdiction to hear the case. A recent case, Gale v. Gale, 2011 NY Slip Op 06490 (2nd Dept. 2011), demonstrates what happens if the referee fails to obtain that consent. In Gale, the mother filed a petition seeking to modify provisions of the parties’ judgment of divorce. The case was assigned to a Family Court Attorney Referee who heard the case and ultimately modified custody provisions of the judgment of divorce, granting the petitioner sole custody of the children. The father appealed, arguing that the referee lacked jurisdiction to hear the case since the referee had failed to have the parties sign the stipulation or otherwise establish that the parties consented to her jurisidiction. The Appellate Division agreed with the father and reversed.  Specifically, the Appellate Division stated that

Upon review of the record, we find that the parties did not stipulate to a reference in the manner prescribed by CPLR 2104. In any event, there is no indication that there was an order of reference designating the referee who heard and determined the petitions at issue here. Contrary to the mother’s contention, the father did not implicitly consent to the reference merely by participating in the proceeding without expressing his desire to have the matter tried before a judge. Furthermore, a stipulation consenting to a reference to a specified referee, executed by the parties in connection with the father’s previous petition to modify the visitation schedule, expired upon completion of that matter and did not remain in effect for this matter.

Accordingly, the referee had no jurisdiction to consider the father’s petitions related to custody and visitation and the mother’s petition to modify custody, and the referee’s order determining those petitions must be reversed. (citations omitted)

While the parties cannot choose the person who will decide their case, they do not have to agree to the Family Court Attorney Referee to hear and decide it. Sometimes there are reasons to have the case heard by a Family Court Judge, and the parties should consider not agreeing to the referee’s jurisdiction under appropriate circumstances.

Step-Parent Adoption and Consent of Biological Father

Saturday, August 6th, 2011

Step-parent adoptions are generally simple if the biological parent provides his/her consent to the adoption. However, such consent may not be obtainable in every situation. Under some circumstances, consent of the biological parent will not be required by the court. Generally, for adoption purposes, the court qualifies biological parents into two categories: consent parent and notice parent.

If a parent is deemed to be a consent parent, that parent’s consent is required in order for the adoption to proceed. If a parent is deemed to be a notice parent, that parent receives a notice of adoption but his/her consent is not required.

The consent of a parent to the adoption of his child will not be required if the parent has abandoned the child. The child will be deemed abandoned if the parent evinced an intent to forego his parental or custodial rights and obligations by failing for a period of six months prior to the filing of an adoption petition to visit the child and communicate with the child or person having legal custody of the child although able to do so”. Domestic Relations Law §111(2)(a). The courts presume, in the absence of evidence to the contrary, the ability to visit and communicate with a child or person having custody of a child. DRL § 111(6)(a).

DRL §111(6)(b) states that, “evidence of insubstantial or infrequent visits or communication by the Father shall not, of itself, be sufficient as a matter of law to prevent a finding that the consent of the Father to the child’s adoption shall not be required”. Insignificant expressions of parental interest will not by themselves prevent a finding of abandonment.

Further, DRL § 111(6)(c) states that, “the subjective intent of the Father whether expressed or otherwise unsupported by evidence of acts specified in DRL § 111(2)(a) manifesting such intent, shall not prevent a determination that the consent of the Father to the child’s adoption shall not be required”.

In Matter of Ethan, 32 Misc.3d 1212(A) (Monroe Co. Fam. Ct. 2009), the birth father opposed proposed step-parent adoption and argued that his consent was necessary. Judge Joseph G. Nesser held a hearing and determined that the biological father has abandoned the child for a period of six months or longer, preceding the filing of the adoption petition.

Specifically, the court found that Father had not seen the child in well over one year before the adoption petition was filed nor did he speak to the child within that six month period. It was also uncontroverted that there were no cards, gifts, financial assistance or child support forwarded by father to mother for the child at least six months prior to the adoption petition being filed. Father’s letters postmarked May 13, 2008 and June 20, 2008 were forwarded to mother concerning the child. The court found that this was the only contact in over one year prior to the adoption petition being filed. Further, father knew members both in his family and in mother’s family to contact, but never had them contact mother to communicate with the child within six months prior to the filing of adoption petition.

The court also found that father was able to contact mother, knew her address; her telephone number; and her mother’s address and telephone number which were published but failed to contact her within six months prior to filing the adoption petition.

Just as important was the court’s finding that the father, for more than one year prior to the filing of the adoption petition, never provided any child support to Mother or any type of financial assistance whatsoever. Mother’s last child support payment was received on November 7, 2005, and the last financial assistance she received from father was in February of 2006.

Based on the above facts, the court determined that father evidenced an intent to forego his parental rights and obligations that was manifested by his failure for a period of six months to visit the child and communicate with the child or with mother, although able to do so, and of his failure to provide fair and reasonable child support according to his means for the child. Thus, the court dispensed with the father’s consent and allowed step-parent adoption to proceed.

Contempt and Enforcement of Court Orders

Wednesday, April 20th, 2011

One remedy to a failure of one party to abide by existing court orders that is available to the parties in divorce and other family law actions is contempt of court. The power to punish for contempt arises out of the inherent power of the court, which is limited by §753(A)(3) of the Judiciary Law. It provides, in part:

753. Power of courts to punish for civil contempts
A. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases:
3. A party to the action or special proceeding, an attorney, counsellor, or other person, for the nonpayment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution can not be awarded for the collection of such sum except as otherwise specifically provided by the civil practice law and rules; or for any other disobedience to a lawful mandate of the court.
8. In any other case, where an attachment or any other proceeding to punish for a contempt, has been usually adopted and practiced in a court of record, to enforce a civil remedy of a party to an action or special proceeding in that court, or to protect the right of a party.

The power of contempt is exists to punish the party who engages in an evasion or a violation of duty, or misconduct, which resulted in defeating or prejudicing the other party’s rights. There are a number of procedural requirements that have to be strictly followed in order for the court to find a party in contempt. A motion to punish for contempt will be dismissed unless on its face it contains both a notice that the purpose of the hearing is to punish for contempt and that such punishment may consist of a fine or imprisonment. Without this notice and warning, the court is without jurisdiction to punish for contempt.

The party must also be advised by the court of the right to counsel and assigned an attorney if financially unable to obtain counsel. In addition, DRL §245 requires a finding that payment cannot be enforced pursuant to DRL §243 or §244 or CPLR §5241 and §5242 and the exhaustion of these remedies or a finding that they would be ineffectual as a prerequisite to a contempt for disobeying an order requiring payment of money in a matrimonial action.  The court must find that the violation was willful and find expressly that the actions of the defaulting spouse were calculated to or actually did defeat, impair or impede or prejudice the other spouses rights or remedies. Nonpayment alone does not establish the requisite willfulness to support contempt. DRL §246(3) provides that financial inability to pay is a defense to a contempt proceeding under DRL §245. A person who asserts in an opposing affidavit financial inability to comply with the order is entitled to an evidentiary hearing to determine whether he or she has an ability to pay.

The punishment for contempt for failure to make ordered payments is imprisonment until payment is made. The defaulting spouse may pay the money due and be released. If the court finds that the party committed the offense charged and that it was calculated to or actually did defeat, impair, impede or prejudice the rights or remedies of the other spouse, the court must make a final order directing fine, imprisonment or both, as it finds necessary.

Civil Rights Law §72 limits the length of imprisonment for nonpayment of alimony, maintenance, distributive award, special relief in a matrimonial action and counsel fees in a divorce case to three months for a default of less than $500, and to six months for $500 or more. Noticeably absent is any mention of child support. If a party has an actual loss or injury because of the proven other spouse’s misconduct, a fine must be imposed sufficient to indemnify the aggrieved party and when collected, paid to the aggrieved party.

In contrast to the DRL, the Family Court Act (FCA) takes a tougher approach by providing for commitment as one of the remedies for nonpayment of support. Section 454(2) provides that where a respondent is brought before the court for failure to obey any “lawful order” of the Family Court for support and following a hearing the court is satisfied that the respondent has failed to obey the order, it may enter a money judgment, make an income deduction order, require an undertaking, make a sequestration order or suspend the respondent’s driving, professional or business license.

Here is an example of how a contempt application will be viewed by the court. In a recent case, H.S.M. v J.T.M., 2011 N.Y. Slip. Op. 50069(U) (Sup. Ct. Nassau Co. 2011), the court was asked to hold defendant in contempt of Court for his willful failure to comply with the Judgment of Divorce entered in this action , and for his willful refusal to pay the sum of $43,351.87, together with interest. The parties’ marriage was dissolved pursuant to the Judgment of Divorce, entered June 24, 2008, which incorporated but did not merge with a Stipulation of Settlement, dated December 19, 2007. The Stipulation stated in pertinent part that:

The Husband shall pay to the Wife, as and for child support, the sum of One Thousand Seven Hundred Eighty-five ($1,785.00) Dollars per month … The parties agree that the child support payments will be made through the Nassau County Support Collection Unit. [Article XXVI]

Pursuant to the Order of the Hon. Denise L. Sher, J.S.C., dated October 4, 2006, the Court ordered pendente lite relief awarding to the Wife the sum of One Thousand Four Hundred ($1,400.00) Dollars per month temporary maintenance, as well as child support in the sum of Two Thousand ($2,000.00) Dollars per month. The award was retroactive to the date of service, which was July 18, 2006. [Article XXVII]

The Husband agrees that arrears for child support and maintenance as of the date of execution of this Agreement amount to Thirty-Eight Thousand Two Hundred ($38,200.00) Dollars, and agrees to the entry of judgment for said arrears. Said arrears shall be liquidated by the Husband paying to the Wife the sum of Three Hundred ($300.00) Dollars per month until all arrears are paid. The Father further agrees that in order to liquidate arrears, the Father shall remit to the Mother his income tax return refunds that he receives commencing with the tax year 2007 and shall pay over to the Mother the entire refund by June 1, 2008, and by June 1st every year thereafter until such time as his arrears have been liquidated. [Article XXII]

The Husband shall pay to the Wife, as and for spousal maintenance, the sum of Four Hundred ($400.00) Dollars per month…through support collection. [Article XXXVI]

Pursuant to the “So-Ordered” Stipulation of the parties dated May 19, 2010, “Def[endant] agrees to pay to Pl[aintiff] as and for child support arrears the minimum sum of $1,000.00 (One Thousand and no/100) by May 26, 2010.

Wife claimed that Husband has willfully failed to i) comply with the Judgment of Divorce dated August 6, 2008, which incorporates the Stipulation; ii) comply and pay the money judgment entered on February 3, 2010, in the sum of $49,746.27; and iii) comply with the “So-Ordered” Stipulation entered into by the parties on May 19, 2010. Wife claimed that subsequent to the entry of the money judgment, she contacted the Nassau County Office of Child Support Enforcement to seek payment of the child support obligation for the parties’ three children, as well as maintenance for herself. She claimed that notwithstanding the attempts of the Child Support Enforcement Bureau, no payments have been received from the defendant or his employer. She further alleged that the total sum now due and owing is $87,864.01, and that none of it has been paid.

In February of 2010, husband testified that he has no assets nor property which could be sequestered. In support of her application, wife claimed that nothing less than a fine and incarceration will persuade the husband to comply with the Court orders and judgments. She argued that other enforcement devices, including income deduction orders, income executions or sequestration will be unsuccessful in view of husband having made himself judgment proof; moving out of the State of New York; and failing to comply with any judgment or stipulation entered into by the parties.

Wife claimed that she is attending graduate school but that in the interim, she is completely dependent on her family for her support and the support of the parties’ three children. She claimed that the last time she received any funds from husband was in March of 2010, and that since that time she has received no support payments or maintenance. She argued that based upon those facts, husband’s intentional non-compliance with the judgment, orders and “So-Ordered” Stipulation has defeated, impaired and prejudiced her rights.

The court stated that a contempt citation is a drastic remedy which should not be granted absent a clear right to such relief.  Further, to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court’s order, with knowledge of that order’s terms, thereby prejudicing the movant’s rights.  The court further held that pursuant to Domestic Relations Law §245, before a defaulting party can be held in contempt for the non-payment of a sum of money, it must appear “presumptively, to the satisfaction of the Court,” that the movant exhausted the less drastic enforcement remedies available under Domestic Relations Law §§ 243, 244 and 245, CPLR §§ 5241 and 5242, or such other enforcement mechanisms that would be ineffectual.  Once the movant has made a prima facie showing that the party against whom a contempt citation is sought has failed to pay a sum of money as ordered, the burden then shifts to the obligor to adduce some competent, credible evidence of his inability to make the required payments, in order to show that the failure to pay was not willful. The court determined that wife has satisfactorily demonstrated the existence of a clear and unequivocal mandate of the court, and that husband has knowingly violated the order’s terms, thereby prejudicing her rights. The court also found that other methods of enforcement would prove ineffective in light of husband having made himself judgment proof. The court, however, determined that it must conduct a hearing to determine husband’s willfulness in violating the subject orders. In order for a non-compliant party be incarcerated for his willful violation of the court’s mandates, the movant must prove such willfulness beyond a reasonable doubt.

The above decision illustrates that while contempt is a remedy, it may require a substantial motion practice and, most likely, a hearing.  Thus, contempt motions should not be brought unless all other remedies were exhausted.

Divorce Actions and New Automatic Stay Orders

Sunday, September 6th, 2009

Since the enactment of Domestic Relations Law §236(B), often referred to as  the “Equitable Distribution Law,” divorce lawyers have had to deal with transfers of, or encumbrances on, marital property which might frustrate the eventual disposition of a divorce case.

Immediately after the enactment of the Equitable Distribution Law, attorneys attempted to prevent transfers and encumbrances of marital property by various means, such as seeking injunctive relief to prevent or undo any transfers, filing notices of pendency with regard to real property which would form part of equitable distribution, and seeking other forms of relief from the courts.  Eventually, the case law made clear that a notice of pendency cannot be filed in a divorce case since an equitable distribution action did not directly affect the title to, or the possession, use or enjoyment, of real property. This left injunctive relief as the only means to restraining transfers during the pendency of an action.  Since the burden of obtaining an injunction was considerable, the moving party had to make a requisite showing that the party to be restrained was threatening to dispose, or was already disposing, of marital assets so as to adversely affect the movant’s ultimate rights to equitable distribution.  Typically, the burden of making the application, and the expenses of doing so, fell on the non-titled spouse.

The different courts in New York State took different approaches to address this issue.  Here in Rochester, the supreme court justices handling matrimonial cases would issue, if requested, standing orders which restrained the parties from substantially altering their financial positions. However, the standing orders would be issued in most cases after a motion was brought or after a preliminary conference was held.

Now, effective Sept. 1, 2009, there is a statute which provides for an automatic stay in all matrimonial actions. The present DRL §236(B)(2) has been redesignated as DRL §236(B)(2)(a) and subparagraph (b) has been added, which reads:

b. With respect to matrimonial actions which commence on or after the effective date of this paragraph, the plaintiff shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in this paragraph. The automatic orders shall be binding upon the plaintiff in a matrimonial action immediately upon the filing of the summons, or summons and complaint, and upon the defendant immediately upon the service of the automatic orders with the summons. The automatic orders shall remain in full force and effect during the pendency of the action, unless terminated, modified or amended by further order of the court upon motion of either of the parties or upon written agreement between the parties duly executed and acknowledged. The automatic orders are a follows:

(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.

(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court.

(3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney’s fees in connection with this action.

(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.

(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.

The Office of Court Administration has  promulgated a Rule already and is in the process of issuing an Official Form incorporating the Notice required under the Statute.  Until the official form is issued, a divorce attorney should attach a notice to the summons stating that, upon service, an order is in effect and then reciting, word-for-word, the five elements listed above.  In my experience, the Monroe County Clerk’s Office will provide a form at the time the summons is filed, unless the requisite notice is already attached to the summons.

This legislation basically preserves the status quo during the pendency of a matrimonial action by shifting the burden of seeking relief from a spouse asking for the imposition of an injunction to a spouse moving to vacate or modify that restraint.  What is unclear at this time, is how this automatic order will be enforced, and what are the remedies for its violation.

Modification of Child Support Orders and Family Court’s Jurisdiction

Sunday, July 12th, 2009

I frequently see child support petitions in Family Court seeking to modify child support provisions of either judgments of divorce, or stipulations or settlement agreements incorporated in the judgments of divorce. Sometimes these petitions argue that the child support provisions of the judgment of divorce, stipulation or settlement agreement are invalid as violating the Child Support Standards Act. Unfortunately, if brought in the Family Court, these petitions suffer from certain jurisdictional defects as demonstrated in Savini v. Burgaleta, 34 A.D. 686 (2nd Dept. 2006).

In Savini, in 1996, the father entered into a stipulation with the mother which provided that the father would “pay to the [mother] as and for child support 29 percent of his gross salary as defined under the Child Support Standards Act on a weekly basis calculated on actual income.” That stipulation was later incorporated but did not merge into a judgment of divorce.

In a 1997 handwritten agreement, which was neither incorporated nor merged into the divorce judgment, the mother allegedly agreed, inter alia, to accept the sum of $200 per week from the father as child support and not to commence any proceeding to recover the difference between that amount and the percentage of gross salary specified in the prior stipulation.

Subsequently, a child support proceeding was commenced in the Family Court by the mother, and the Family Court Support Magistrate, sua sponte, determined that “the prior Judgment of Divorce and the stipulations did not comply with the Child Support Standards Act” and therefore informed the parties that she would consider the issue of child support de novo. She directed the father, in the interim, to pay child support in the amount $446.15 per week effective February 11, 2005. After a hearing, the Support Magistrate determined, in relevant part, that the father should pay $559.78 per week in child support until June 29, 2005, and $482.57 thereafter, and made the order retroactive to the date of the petition. The Support Magistrate also awarded the mother an attorney’s fee in the sum of $11,990.

The father filed various objections to the Support Magistrate’s findings and order. He claimed that the Support Magistrate was without jurisdiction to hold a de novo hearing on the issue of child support as if the judgment of divorce had never existed. By order entered February 8, 2006, the Family Court, inter alia, denied the father’s objections and father appealed.

The Appellate Division agreed with the father that the Family Court was without subject matter jurisdiction, in effect, to vacate as illegal so much of the judgment of divorce as directed the father to pay child support and, thereafter, to determine the issue of child support de novo. What is particularly interesting in this case was its reasoning.  The Appellate Division made this determination on constitutional grounds, stating that New York Constitution, article 6, §13 (c) provides that the Family Court is vested with limited jurisdiction “to determine, with the same powers possessed by the [S]upreme [C]ourt, the following matters when referred to the [F]amily [C]ourt from the [S]upreme [C]ourt: . . . in actions and proceedings for . . . divorce, . . . applications to fix temporary or permanent support . . . or applications to enforce judgments and orders of support”. Similarly, Family Court Act §466 provides, in relevant part, that, unless the Supreme Court directs otherwise, the Family Court may entertain an application to enforce an order or decree of the Supreme Court granting support, or an application to modify such order or decree “on the ground that there has been a subsequent change of circumstances and that modification is required.” The Supreme Court’s judgment of divorce provided, in relevant part, that the Supreme Court “retain[ed] jurisdiction of the matter concurrently with the Family Court for the purpose of specifically enforcing such of the provisions of the stipulation of child support as are capable of specific enforcement, to the extent permitted by law”.

The Court held that “nowhere in the Constitution, in the Family Court Act, or in the judgment of divorce itself, is the Family Court empowered, in effect, to invalidate a stipulation incorporated into the judgment of divorce entered by the Supreme Court. Significantly, the purpose of the mother’s petition was to enforce the terms of the stipulation of October 29, 1996 – not to have it declared illegal. Had either party questioned the legality of the stipulation, the issue should have been determined by the Supreme Court, which had issued the judgment in which the stipulation was incorporated. Accordingly, the Family Court was without jurisdiction to invalidate the stipulation and determine the child support issue de novo.”

What makes this situation different from typical modification of child support, which I previously discussed, here and here, is that fact that the provisions of the judgment apparently violated the Child Support Standards Act. In those situations, the Supreme Court has the jurisdiction to vacate any child support provisions of the judgment and recalculate child support de novo, going back to the original date of the judgment or the parties’ agreement.  The Family Court does not have the jurisdiction to do so. Accordingly, this is an important procedural point that should be familiar to most divorce and family law lawyers handling child support issues.  If the provisions of the judgment of divorce dealing with child support violate the Child Support Standards Act, the proper venue to address such issues lies in the court that issued the judgment of divorce.

The Right to Create Grandchildren After the Death of A Child

Wednesday, March 4th, 2009

Can someone create your biological child after your death? The Appellate Division, First Department, answered this question in the negative in Speranza v Repro Lab Inc., 2009 NY Slip Op 01543 (1st Dept. March 3, 2009).

In 1997, Mark Speranza deposited a number of semen specimens in the facility of Repro Lab, Inc., a tissue bank licensed by the State of New York. The specimens were frozen and stored in defendant’s liquid nitrogen vaults. Mark was about to undergo treatment for an illness, and was concerned about being able to conceive a child afterwards. As part of his agreement with Repro Lab, he filled in and signed a form document entitled, “Ultimate Disposition of Specimens,” which contained several options for the disposition of the specimens by the tissue bank in the event of Mark’s death. One option on the form directed that the specimens be given the depositor’s spouse, another directs that the samples be destroyed, and a third option, with the heading “Other,” leaves a blank to be filled in. Mark checked off the provision stating that in the event of his death, “I authorize and instruct Repro Lab to destroy all semen vials in its possession.” The document concluded with the statement that “[t]his agreement shall be binding on the parties and their respective assigns, heirs, executors and administrators.” Six months later, on January 28, 1998, Mark died.

Mark’s parents were named administrators of his estate, and they contacted Repro Lab about the specimens. They were then informed that Mark had deposited the specimens for his use only, in that the specimens were not screened as required for donation to a member of the public. Mark’s parents then began to seek a surrogate mother to be artificially inseminated with those semen specimens, with the hope of producing a grandchild for them. In 2005, the Speranzas contacted Repro Lab to ascertain the procedure for obtaining the specimens and were informed that the lab could not turn over the specimens. Plaintiffs, in their position as administrators of their son’s estate, then commenced an action seeking a declaration that the estate is the rightful owner of the specimens.

In its decision, the Appellate Division held that public policy interests as well as New York law preclude giving plaintiffs possession of the specimens for purposes of engendering Mark’s biological child, their grandchild, with the sperm he left behind.

The Court relied upon the regulations of the New York State Department of Health in deciding this case. These regulations define two distinct categories of semen depositors with tissue banks: depositors and donors. A “client-depositor” is “a man who deposits reproductive tissue prior to intended or potential use in artificial insemination or assisted reproductive procedures performed on his regular sexual partner” (10 NYCRR 52-8.1[d]). A “donor” is “a person who provides reproductive tissue for use in artificial insemination or assisted reproductive procedures performed on recipients other than that person or that person’s regular sexual partner, and includes directed donors” (10 NYCRR 52-8.1[f]). A “directed donor” by definition “includes a man providing semen to a surrogate, but who is not the regular sexual partner of the recipient” (10 NYCRR 52-8.1[e]).

The regulations contain extensive screening and testing requirements that apply to “donors” only, and not to “depositors” (10 NYCRR 52-8.5, 52-8.6). This required screening and testing is deemed unnecessary by the regulations only when, at the time of the deposit, the specimen was intended to be used only by the depositor or his regular sexual partner. Any other potential recipient, including a surrogate who was not the regular sexual partner of the donor, is included among those intended to be protected by these regulations, which strictly mandate thorough testing before any such use.

The regulations also contain very particularized provisions for the manner in which a tissue bank must treat deposited reproductive tissue, and require the informed consent of a tissue donor, including a statement that the donor has the right to withdraw his or her consent to donation up until a specified point in the assisted reproduction process (10 NYCRR 52-8.7, 52-8.8[a][6]).

Relying on the regulations, Repro Lab pointed out that Mark, as a “client depositor” rather than a “donor,” had not been examined and screened as directed by 10 NYCRR 52-8.5, and that his blood and semen had not been tested for the infectious diseases covered in 10 NYCRR 52-8.6; rather, his specimens were simply stored without any medical screening or testing. Therefore, the tissue bank could not properly release the specimens for insemination of a surrogate.

Notwithstanding the regulations, Mark’s parents sought to either reform or terminate Mark’s agreement with the lab so as to eliminate the applicability of the directive that the specimens be destroyed, or to otherwise claim a legal right to ownership of the specimens. Accourding to the court, the parents had no viable cause of action that would entitle them to take possession of the specimens for insemination of a surrogate to produce the child he did not create while he lived.

The court further held that the contract between Mark and Repro Lab could not be reformed since it was clear and unambiguous, finding that it represented his choice that the sperm should be available to him so he could protect his ability to procreate if he survived. It did not protect any possibility that his genetic or biological issue could be created after his death; and the directive that his semen be destroyed in the event of his death precluded such a possibility. Under applicable regulations as well as the terms of the contract between Mark and Repro Lab, the specimens were not assets of the estate over which the administrators had possessory rights.

The legal obligations with regard to the possession and handling of the semen specimens were dictated solely and completely by the applicable Department of Health regulations. The proposed use of Mark’s semen would fundamentally violate 10 NYCRR 52-8.6(g), which requires that a semen donor be “fully evaluated and tested” prior to the use of his semen “by a specific recipient, other than his current or active regular sexual partner.”

This decision further illustrates the need to pre-plan in situation where one’s health may impact future reproductive activities. While I sympathize with Mark’s parents, the court had to follow the regulations and enforce the contract.

Downward Modification of Maintenance

Saturday, February 28th, 2009

In these uncertain economic times, someone obligated to pay maintenance may lose a job, experience significant investment losses, or suffer other adverse financial events. Can something be done about maintenance under those circumstances? The answer, as I have often written, depends on the specific facts.

A party seeking the reduction of a maintenance obligation bears the burden of establishing a substantial change of circumstances. Klapper v. Klapper, 204 A.D.2d 518 (2d Dept. 1994). In Klapper, the Second Department held that, in determining whether there was a substantial change in circumstances sufficient to warrant downward modification, the change is to be measured by a comparison between the payor’s financial circumstances at the time of the motion for downward modification and at the time of divorce or, as the case may be, the time that the order of which modification is sought was made.” Id. at 519. The Appellate Division, Fourth Department utilized the same standard of review in Able v. Able, 245 A.D.2d 1026 (4th Dept. 1997).

In Simmons v. Simmons, 26 A.D.3d 883 (4th Dept. 2006), defendant lost his job and subsequently moved for a downward modification of his maintenance obligation. The Appellate Division held that since despite defendant’ diligent job search, he had little prospect of finding employment at a salary comparable to his salary at the time of the divorce, the downward modification was warranted.

The party seeking to modify the maintenance provisions of a judgment of divorce in which the terms of a stipulation of settlement have been incorporated but not merged, must demonstrate that the continued enforcement of the party’s maintenance obligations would create an “extreme hardship”. Beard v. Beard, 300 A.D.2d 268 (2d Dept. 2002) (the proper amount of support payable is determined not by a parent’s current economic situation, but by a parent’s assets and earning powers). See also, Domestic Relations Law § 236(B)(9)(b).

A reduction in the payor’s income will not result in decreased maintenance where it is the result of a voluntary action, such as self-imposed retirement. Fendsack v. Fendsack, 290 A.D.2d 682 (3d Dept. 2002); DiNovo v. Robinson, 250 A.D.2D 898 (3d Dept. 1998). In Dallin v. Dallin, 250 A.D.2d 847 (2d Dept. 1998), the Second Department held that Family Court properly rejected the father’s claims that his financial situation, prolonged unemployment, and illnesses warranted a drastic reduction of his maintenance and child support obligations. The father had failed to produce any competent evidence to support his claim that he used his best efforts to obtain employment commensurate with his qualifications and experience or that his medical conditions rendered him unemployable.

In Lenigan v. Lenigan, 146 Misc.2d 627 (Sup.Ct., Albany County 1990), the defendant sought to reduce his maintenance and child support obligations. The defendant claimed that, in the prior three months, his compensation as a stock broker had been reduced. It is well settled that the party seeking to obtain a reduction of support bears the burden of establishing a substantial change of circumstances. Id. A drastic change in income can constitute a substantial change of circumstances. Id. In Lenigan, the defendant was a stockbroker, and by the very nature of his business, his income would fluctuate throughout the year. The Supreme Court held that, adopting the defendant’s theory of allowing a modification based upon temporary fluctuations in income would lead to a ludicrous result. Although the defendant asserted a three-month lull in business, there was nothing to establish that sales would not pick up in the following months.

In conclusion, an experienced divorce lawyer faced with a significant change in client’s economic situation, must carefully construct an argument for the court that the change was not created by his/her client, that the change is significant, that it is likely to last for a some time, and that the client has exhausted all other alternatives.
In Watrous v. Watrous, 292 A.D.2d 691 (3d Dept. 2002), at age 55, the plaintiff voluntarily retired from State employment and, shortly thereafter, moved to terminate or, in the alternative, reduce his maintenance obligation. The plaintiff asserted as a substantial change in circumstances that he took early retirement due to his poor health and would be experiencing a significant reduction in income. A hearing was held and, at the close of plaintiff’s proof, Supreme Court granted defendant’s motion to dismiss, finding that plaintiff had failed to establish a sufficient change in circumstances. The Third Department affirmed on appeal, stating that a maintenance obligation established by a judgment of divorce will not be modified absent clear and convincing proof of a substantial change in circumstances. The record revealed that, at the time of the divorce, Supreme Court was aware of both the medical restrictions on plaintiff’s employment and the possibility that his poor health might cause him to retire early. Accordingly the circumstances existing at the time of the plaintiff’s application for downward modification were foreseeable, and anticipated at the time of the parties’ divorce. Furthermore, the record was devoid of evidence that the reduction in the plaintiff’s income would substantially diminish his standard of living or his ability to satisfy his maintenance obligation. The Third Department therefore concluded that the plaintiff failed to establish a substantial change in circumstances.

Divorce and Exclusive Possession of Marital Residence During Pendency of the Action

Sunday, February 22nd, 2009

I am often asked by a party to a divorce action if the other party can be forced to leave the marital residence. My usual response is that it can be done under the appropriate circumstances. Exclusive use and occupancy of the marital residence may be awarded during pendency of a divorce action upon a showing that a spouse’s presence has caused domestic strife and/or that the spouse has voluntarily established an alternative residence. See, Domestic Relations Law §234; Annexstein v. Annexstein, 202 A.D.2d 1062 (4th Dept. 1994). The standard for granting exclusive possession is a flexible one and may include any circumstance warranting judicial intervention. See, Grogg v. Grogg, 152 A.D.2d 802 (3rd Dept. 1989) (The presence of marital strife can be a recognized standard for an award of exclusive possession). In I.Q. v. A.Q., 228 A.D.2d 301 (1st Dept. 1996), where there was no dispute of a significant potential for strife should defendant return, and no genuine issue raised that defendant’s exclusion from the marital residence would cause him more than minimal disruption, the motion court’s award of temporary exclusive possession, without a hearing, was a proper exercise of discretion. Id.

Similarly, in Iuliano v. Iuliano, 30 A.D.3d 737 (3rd Dept. 2006), testimony clearly demonstrated the existence of marital strife between the parties requiring an award of exclusive possession to insure the personal safety of the parties. Given the disparate financial circumstances of the parties, the award of exclusive possession to defendant was deemed to be proper. Id. In Mitzner v. Mitzner, 228 A.D.2d 483 (2nd Dept. 1996), the Supreme Court was found to have properly awarded the defendant temporary exclusive possession of the marital residence, given the domestic strife caused by the plaintiff’s presence in the home and the fact that he had voluntarily established an alternative residence. Id. See, also, Block v. Block, 245 A.D.2d 153 (1st Dept. 1997) (In light of husband’s admission that due to marital strife, he voluntarily vacated the marital residence shortly after signing a one-year sub-lease for an apartment, and the unrebutted expert evidence concerning the impact of the domestic strife on the wife prior to the husband’s departure and the potential harm to the wife and children if the husband returned, the motion court erred in not granting the wife’s cross-motion for exclusive occupancy of the marital residence and in granting the husband’s motion for complete access thereto).

If the presence of one party has caused significant domestic strife in the marital residence and that party has sufficient means to secure an alternate residence, the other party may be granted exclusive use and occupancy of the marital residence. During a divorce, exclusive possession is one of the most important tools available to a divorce lawyer to improve client’s position, and to force the other party to establish a separate household. Grant of exclusive possession is likely to have significant consequences with respect to custody, visitation, temporary maintenance and other issues. Since the grant of exclusive possession under Domestic Relations Law §234 is within the court’s discretion, it is difficult to have it overturned on appeal.

Same Sex Marriage and Inheritance Rights

Monday, February 9th, 2009

I have previously blogged about recognition of same sex marriages by New York courts, and specifically, Martinez v. County of Monroe, 50 A.D.3d 189 (4th Dept. 2008). The courts have applied Martinez in recognizing the right to benefits, divorce, adoption, and now, inheritance rights. In a recent decision, In re Ranftle, N.Y.L.J., (Feb. 3, 2009), the Surrogate Court in New York County recognized a same-sex marriage entered into in Canada for the purpose of determining decent’s distributees.

The decent H. Kenneth Ranftle, married his same sex partner, J. Craig Leiby, in Monreal, Canada, on June 7, 2008. He died on November 1, 2008, and was survived by Mr. Leiby and three siblings. Relying on Martinez, the Surrogate Court recognized the marriage as valid and entitled to recognition in the Sate of New York. Therefore, Mr. Leiby was declared to be decedent’s surviving spouse and sole distributee under Estates Powers & Trusts Law §4-1.1. Under Estates Powers & Trusts Law §4-1.1, Mr. Ranftle’s siblings will not be entitled to any part of his estate.

Non-Marital Property Is Not Subject to Distribution

Monday, February 9th, 2009

I have previously written about relevant classification of property for equitable distribution purposes. Normally, the property is classified as either separate or marital, regardless of how the title is held. However, once in a while I have seen situations where property rights are claimed in a property which is titled in neither the husband’s or wife’s name.

In Mattioli v Mattioli,48 A.D.3d 1143 (4th Dept. 2008) the Appellate Division held that Supreme Court properly refused to treat the former marital residence, which was titled in the names of plaintiff’s parents or in one of their names, as marital property subject to equitable distribution, despite the fact that plaintiff paid her father $42,899 during the marriage as a down payment towards its purchase. The Appellate Division held that the trial court erred, however, in basing its decision solely on the fact that title to the property was held by one or both of plaintiff’s parents, rather than by plaintiff and/or defendant. That fact was not necessarily dispositive because Domestic Relations Law 236(B)(1)(c) defines marital property as “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.” Thus, the dispositive issue was whether plaintiff and/or defendant held “any valuable property rights” in the former marital residence, inasmuch as property is “not marital property [where] neither the wife nor the husband [holds] any valuable property rights” in it. While the parties in this case alluded to an agreement between plaintiff, defendant, and plaintiff’s parents for the purchase of the former marital residence, no written agreement for the purchase and sale thereof was presented to the court. In the absence of a written contract, there was no evidence before the court that either plaintiff or defendant held the requisite “valuable property rights” in the former marital residence to render it marital property.

The Appellate Division held that the trial court erred in applying the doctrine of judicial estoppel in precluding defendant from presenting evidence of funds received by plaintiff from the sale of the former marital residence. Defendant attempted to establish that the $8,000 to $9,000 received by plaintiff from the sale of the former marital residence was marital property in the form of appreciation in the value of the property resulting from improvements he made to it during the marriage. The Supreme Court erred in relying on its decision when it applied the doctrine of judicial estoppel to the former marital residence. The record established that during the marriage defendant twice filed for bankruptcy under chapter 7 of the Bankruptcy Code and received discharges, and that he claimed in both bankruptcies that he was single and did not list the former marital residence as an asset in his bankruptcy schedules. The court thus determined that judicial estoppel prevented defendant from claiming any interest in funds received upon the sale of the former marital residence. Because marital property rights are determined upon the granting of a divorce, and defendant was not required to list possible future rights to marital property in the bankruptcy schedules. The Appellate Division modified the judgment by remitting the matter to Supreme Court to reopen the proof at trial to permit defendant to submit evidence that the funds received by plaintiff from the sale of the former marital residence were marital property.

The lesson of Mattioli is a simple one. If you are entering into any kind of agreement that may involve property to which you may have to establish a right to, make sure that the agreement is in writing.