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.

A recent case, Thomas B. v. Lydia D., 2009 N.Y. Slip. Op. 06789 (1st Dept. 2009), is an excellent illustration of these concepts.  In Thomas B., the Appellate Division held that two parents may not, by written agreement, terminate the child support obligation because of the child’s full-time employment, without a simultaneous showing of the economic independence of the child.

Pursuant to a stipulation of settlement entered into as part of the parties’ judgment of divorce, father was obligated to pay annual child support until the parties’ child reached the age of 21 or was otherwise “emancipated.”  The stipulation defined emancipation as “the Child’s engaging in full-time employment; full-time employment during a scheduled school recess or vacation period shall not, however, be deemed an emancipation event.”  The father brought a motion seeking to declare the child emancipated and argued that under the terms of the stipulation of settlement, the child became emancipated by reason of his full-time employment at a music store from July through December 2005.  The mother opposed the motion, arguing that during the time in question, the child was living in a halfway house as part of his treatment for substance abuse.  His employment at the music store was one of the conditions of that treatment.  She also argued that the child was not economically independent, as he received financial support from her in addition to her payment of 100% of his unreimbursed medical expenses.

The court stated that mere full time employment was not enough, and emancipation would require economic independence from the child’s parents which is not established by merely working a standard, full-time work week.  Thus, even where a child is working but still relies on a parent for significant economic support such as paying for utilities, food, car insurance, medical insurance and the like, the child cannot be considered economically independent, and thus is not emancipated. This is true even where the child is residing with neither of the parties, so long as the child is still dependent on one of the parties for a significant portion of his or her support.  Moreover, the parties cannot contract away the duty of child support.  The Appellate Division found insufficient evidence in the record to support a finding that the child was economically independent of his parents as a result of his working 35 hours per week while living in a halfway house. The child’s employment was one of the requirements of participation in the halfway house substance abuse program.  In Thomas B., it was clear, that although he was working 35 hours per week during the period of time in question, the child was not economically independent of his parents, and thus was not emancipated during that period of time.

One lesson of Thomas B. is that the lawyer dealing with this type of situation must present sufficient evidence to establish the child’s work hours and income, as well as his/her needs and expenses.  It is also critical to present testimony as to whether the other parent is meeting the child’s other financial needs, and whether such financial assistance is necessary or is merely voluntary.  If you believe that your child became emancipated due to employment, I would recommend consulting with a family law attorney.

The legal standard for setting aside separation agreements states that a separation agreement in a divorce proceeding may be vacated if it is manifestly unfair to one party because of the other’s overreaching or where its terms are unconscionable, or there exists fraud, collusion, mistake, or accident.  Separation agreements may be set aside as unconscionable if their terms evidence a bargain so inequitable that no reasonable and competent person would have consented to it.  Moreover, evidence that one attorney ostensibly represented both parties to a settlement agreement raises an inference of overreaching on the part of the party who is the prime beneficiary of the assistance of the attorney. Such an inference is, rebuttable, if it appears that the separation agreement is fair and equitable or that both parties freely agreed to it with a thorough understanding of its terms.

In a recent case of Pippis v. Pippis, 2010 N.Y. Slip. Op. 00492 (2nd Dept. 2010), the Appellate Division, Second Department vacated the separation agreement holding that plaintiff was guilty of overreaching with respect to the parties’ separation agreement.  The court found that the defendant was not represented by counsel at any point during the relevant time period.  According to the plaintiff, his attorney drafted the stipulation of settlement, and only one attorney was present at the signing.  Under these circumstances, and where the terms of the stipulation “evidence a bargain so inequitable” in favor of the plaintiff “that no reasonable and competent person” would have consented to the defendant’s end of the bargain, an inference of overreaching on the part of the husband was raised.  Since the plaintiff failed to rebut the inference, the Appellate Division held that the trial court properly determined that the stipulation was the product of his overreaching, and granted the defendant’s motion to set it aside.  The Appellate Division also held that the trial court properly rejected the plaintiff’s ratification argument, since the defendant “received virtually no benefits from the agreement and thus cannot be said to have ratified it”.

While occasionally I am asked to prepare a separation agreement in a situation where the opposing party is unrepresented, I advise my client that it is in his/her best interests that the other party is represented and that the agreement is not entirely one-sided.  As a divorce lawyer, I have to advise my client that any agreement that is extremely one-sided may be vacated by the court in any pending or subsequent divorce action.  If the agreement is reviewed by counsel and conveys some benefits to the other party, the likelihood of it being overturned by the court is greatly diminished.

In Andrew T. v Yana T., 2009 N.Y. Slip. Op. 29530 (Sup. Ct. N.Y. Co. 2009), the parties were married in in 2006.  In September of 2007, the plaintiff husband brought a divorce action on the grounds of constructive abandonment.  On March 19, 2008, defendant-wife gave birth to a baby boy.  This event not only predated the divorce judgment dissolving the parties’ marriage, but was prior to defendant having signed her affidavit and the parties having entered their separation and property settlement agreement. According to plaintiff, he was never aware that defendant was pregnant and he only learned about the child after the parties were already divorced. There was no father listed on child’s birth certificate.

Once plaintiff learned of the existence of the child, he petitioned the court for an order directing paternity testing.  Defendant opposed the motion contending that the child, who was not born until March 19, 2008, cannot possibly be plaintiff’s.  Defendant further argued that if plaintiff is taking the position that the child is plaintiff’s child, this means that the sworn statements in his verified complaint concerning the lack of sexual relations with defendant must be untrue.  As a result, defendant cross-moved for an order finding that plaintiff has violated Penal Law section 210.10, perjury in the second degree.

Defendant’s argument was predicated on the fact that with respect to plaintiff’s cause of action for constructive abandonment, plaintiff alleged in his verified complaint “that commencing on or about August 1, 2006, and continuing for a period of more than one (1) year immediately prior to commencement of this action, the defendant refused to have sexual relations with the plaintiff despite plaintiff’s repeated requests to resume such relations.”  The complaint stated that there were no children of the marriage.  Defendant had neither interposed an answer to the complaint nor in any other way sought to contest the divorce.  Instead she provided plaintiff with an affidavit in which she admitted service of the summons and complaint “based upon the following grounds: constructive abandonment DRL §170(2).”

Following the execution of defendant’s affidavit and the parties’ agreement, plaintiff promptly placed the case on the uncontested matrimonial calendar for submission. This meant that neither party had to appear in court to give testimony because the application for the divorce judgment was to be decided on the papers alone.  On July 29, 2008, a judge signed the judgment dissolving the marriage between the parties by reason of the constructive abandonment of plaintiff by defendant. The judgment stated that there are no known children of the marriage and none are expected.

While defendant’s argument was creative, the trial court judge did not accept it, pointing out that the defendant has not presented any evidence to exclude plaintiff as defendant did not present any evidnce other than relying on plaintiff’s verified complaint.

In addition, the court stated that the presumption of legitimacy, the child’s best interests and plaintiff”s request for paternity testing were interrelated.  Plaintiff was already presumed to be child’s father by virtue of having been married to the child’s mother when the child was born.  The child’s best interests lie in having his parentage confirmed, his father’s name listed on his birth certificate, and his rights and status attendant to the father-son relationship fully established.  A positive paternity test would provide the means by which any doubt as to whether plaintiff is the child’s father.

With respect to defendant’s cross-motion seeking a finding that the plaintiff committed perjury, a felony, the court stated the following:

Suffice it to say that if the District Attorney was intent on prosecuting all the people who, within the context of uncontested divorce proceedings, falsely claim not to have had sexual relations with their spouses, there would be little time left for pursuing other crimes. As with a revelation that a husband or wife has committed the crime of adultery by having had sex outside the marriage, there are instances of wrongdoing that do not demand the attention of the People of the State of New York in order to keep our society safe and secure.  This is one of them.

The court further addressed New York’s lack of no-fault divorce in rather strong terms:

If New York was like every other state, even those that some might think of as legally and socially backward, and had a true no-fault ground for divorce, such as “irreconcilable differences” ( Mississippi) or “incompatibility” (Oklahoma), the situation here, as difficult as it already is involving a battle over a child, could have been that less complicated. This is because plaintiff would never have had to make the representations that he did about his sex life with defendant just so a New York court could free the parties from a marriage that neither side wished to continue.

Unfortunately, our state, which prides itself on being so forward-thinking in so many ways, is positively regressive as concerns the institution of marriage. When it comes to forming the marriage bond, we do not allow loving, consenting adults who happen to be of the same sex to enjoy the same rights as others. When it comes to dissolving the marriage bond, we do not allow no-longer-loving, consenting adults to obtain a divorce for reasons that are real rather than fabricated so as to meet some archaic legal requirement. It is clearly time for the Empire State, as it is known, to reject a view of marriage that is more reflective of the time of the Empire of Queen Victoria than it is of the second decade of the 21st Century and at long last adopt the reforms that bar associations and citizens groups of all kinds have been demanding for years. Until that happens, the integrity of our legal system here in New York will continue to be needlessly compromised.

As far divorce litigation is concerned, the above represents an extreme example of a problem that divorce lawyers often face.  If New York were to adopt some version of no-fault divorce, a great deal of litigation could be eliminated.

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

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

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

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

In a recent case, Masella v. Masella, 2009 N.Y. Slip. Op 08190 (2nd Dept. 2009), the Appellate Division, Second Department, held that the proceeds of the defendant’s disability insurance policies are his separate property. Similarly, the court held that the proceeds of the defendant’s Social Security disability benefits also are his separate property, and are not subject to equitable distribution.  The reason that Social Security benefits are not subject to equitable distribution, is because Social Security benefits are not a pension.  With respect to the disability insurance, any disability insurance payments constitute compensation for personal injury and would not be subject to equitable distribution.

In a situation where one of the parties is disabled and is receiving disability payments, the other party might not be able to obtain equitable distribution of such payment, regardless of the amount received.  While some may argue that this may not be fair to the other party, the above principles are uniformly applied in New York divorces and are unlikely to be overturned in the future.  When handling similar situations, divorce attorneys will need to investigate the source of payments, the reasons for them and try to figure out if the income can be reached in some other way, perhaps by a spousal maintenance claim.

In 2006, Mr. Simkin, a partner at Paul, Weiss, Rifkind, Wharton & Garrison and his wife negotiated a settlement agreement in their divorce action.  One of the marital assets was an account the parties opened during their marriage with Bernard L. Madoff Investment Securities LLC which was worth $5.4 million.  As part of a 2006 equitable distribution agreement, Mr. Simkin  paid Ms. Blank $2.7 million, which represented what he thought was his ex-wife’s fair share of their Madoff investments.

After Mr. Madoff’s arrest, Mr. Simkin attempted to reform the agreement, claiming it was based on a “material, mutual mistake” and resulted in a “windfall” for Ms. Blank. He argued that the agreement did not accomplish the parties’ goal of ensuring that each would keep approximately half of the marital assets.  Ms. Blank responded that as long as Mr. Simkin could have redeemed the account for the value that the parties agreed to on the cut-off date, he received what he bargained for. Noting that Mr. Simkin had liquidated part of his investment to fund his ex-wife’s equitable entitlement, the court pointed out that in 2006 and “the several years after that plaintiff maintained this investment,” the account “could have been redeemed for cash, presumably significantly in excess of its 2004 value.”  While Mr. Simkin claimed the Madoff account held no assets, he did not allege it had no value, the judge wrote.  “An investor’s ability to redeem an account for value, was the assumption on which the parties relied in dividing their property and in doing so they made no mistake,” the court found.

Justice Evans agreed with Ms. Blank holding that while Mr. Simkin’s decision to retain the Madoff account may have been “improvident,” that did not give the court an equitable basis to set the agreement aside. In dismissing Mr. Simkin’s complaint, Justice Evans wrote, “There is no evidence that defendant was unjustly enriched. In 2006, at the time of their agreement, each of the parties received the benefit of his and her bargain.”

The lesson of the above case is that clients and their divorce attorneys should be careful in fashioning settlement agreements.  Even when significant mistakes are made at the time the agreements are entered into, it is very difficult to set them aside, even in such extreme circumstances as described above.

On November 15, 2009, amendments to the Domestic Relations Law, the Family Court Act and the Military Law became effective that provide that the return of a parent from activation or deployment by the military will automatically be considered a “substantial change in circumstance” for seeking reconsideration of a custody or visitation order.  The amendments change the law enacted last year which requires that all child custody orders issued when a parent is on active military duty are deemed temporary and subject to revision when the parent returns to civilian life.

Specifically, Domestic Relations Law §75-l ( entitled Military service by parent; effect on child custody orders) provides that unless the parties have otherwise stipulated or agreed, if an order was issued under Domestic Relations Law §75-l, the return of the parent from active military service, deployment or temporary assignment shall be considered a substantial change in circumstances.  Upon the request of either parent, the court shall determine on the basis of the child’s best interests whether the custody judgment or order previously in effect should be modified.

Domestic Relations Law §240(1), was amended to add a new paragraph (a-2) as follows:

(a-2) Military service by parent; effect on child custody orders.

(1) During the period of time that a parent is activated, deployed or temporarily assigned to military service, such that the parent’s ability to continue as a joint caretaker or the primary caretaker of a minor child is materially affected by such military service, any orders issued pursuant to this section, based on the fact that the parent is activated, deployed or temporarily assigned to military service, which would materially affect or change a previous judgment or order regarding custody of that parent’s child or children as such judgment or order existed on the date the parent was activated, deployed, or temporarily assigned to military service, shall be subject to review pursuant to subparagraph three of this paragraph. Any relevant provisions of the Service Member’s Civil Relief Act shall apply to all proceedings governed by this section.

(2) During such period, the court may enter an order to modify custody if there is clear and convincing evidence that the modification is in the best interests of the child. An attorney for the child shall be appointed in all cases where a modification is sought during such military service. Such order shall be subject to review pursuant to subparagraph three of this paragraph. When entering an order pursuant to this section, the court shall consider and provide for, if feasible and if in the best interests of the child, contact between the military service member and his or her child, including, but not limited to, electronic communication by e-mail, webcam, telephone, or other available means. During the period of the parent’s leave from military service, the court shall consider the best interests of the child when establishing a parenting schedule, including visiting and other contact. For such purposes, a “leave from military service” shall be a period of not more than three months.

(3) Unless the parties have otherwise stipulated or agreed, if an order is issued pursuant to this paragraph, the return of the parent from active military service, deployment or temporary assignment shall be considered a substantial change in circumstances. Upon the request of either parent, the court shall determine on the basis of the child’s best interests whether the custody judgment or order previously in effect should be modified.

(4) This paragraph shall not apply to assignments to permanent duty stations or permanent changes of station.

The Family Court Act § 651 was amended to add a new subdivision (f) which contains identical language as Domestic Relations Law §240(1) (a-2).

If you are in the military service, the amendments provide some degree of comfort that any changes to the preexisting custody arrangements as a result of being called to the active duty can be reevaluated.  At the same time, in order to do so, the service person will be required to go to court and is likely to require assistance of a family law lawyer.

A recent example of such case was Dewitt v. Giampietro, 66 A.D.3d 773 (2nd Dept. 2009).  According to the Appellate Division, although the daughter refused to have contact with the father after some incident which was not described, the father ceased making attempts to reestablish contact with daughter after approximately one month.  According to the Appellate Division, one month period of trying to reestablish a relationship with the daughter could not be considered as a serious effort by the father.  The court also noted that the daughter testified that she loved her father and would be willing to re-establish visitation gradually through counseling.   According to the Appellate Division, the child’s reluctance to see parent is not considered to be abandonment.

Accordingly, if a non-custodial parent is in a situation where the child of employable age, generally high school graduate or older, is refusing to have any contact with the parent, the parent must keep on trying to reestablish contact for a period of time in excess of several months.  Any such contact may take several different forms, and phone calls, email, letters, postcards, and even text messages may be utilized.  It is important that the parent remembers the child’s birthdays and other special occasions.  Generally, the courts are reluctant to terminate child support and will do so only if the non-custodial parent will demonstrate that the continuing pursuit of the relationship with the child would be fruitless.

Plaintiff and defendant were married on May 8, 1993 and have three minor children.  The parties have lived apart since March 2005.  On March 4, 2005, plaintiff commenced an action for divorce.  After extensive and ultimately futile negotiations between the parties, plaintiff filed a complaint on August 11, 2006, that did not specify any misconduct on the part of defendant but requested that plaintiff be awarded custody of the parties’ children.  On September 15, 2006, Supreme Court granted defendant’s motion to dismiss the complaint based on the insufficiency of plaintiff’s allegations but “retained jurisdiction over ancillary issues.”

Thereafter, the parties entered into the agreement, the preamble to which provides that “the parties are now desirous of resolving custody and ancillary issues without a trial.”  The agreement granted sole custody of the parties’ children to defendant and establishes a detailed access schedule for plaintiff.  It further provided that the agreement “shall be submitted to any court in which either [p]arty may seek a judgment or decree of divorce and . . . shall be incorporated in such judgment or decree by reference.”  The agreement was signed by both parties, notarized, and filed with the Erie County Clerk’s Office on May 11, 2007.

On May 13, 2008, just over one year after the agreement was filed, plaintiff commenced this action fo divorce based on Domestic Relations Law §170(6), alleging that the parties had lived separate and apart pursuant to an agreement for a period of a year or more.  A copy of the agreement was attached to the complaint.  Defendant moved to dismiss the complaint on the ground that the agreement was not a “written agreement of separation” within the meaning of section 170(6) because it addressed only parenting issues, it did not expressly recite the parties’ intent to live separate and apart, and it was not intended to serve as a separation agreement.  Plaintiff cross-moved for summary judgment on the complaint, contending that the terms of the agreement clearly established that the parties were living separate and apart.  The trial court denied the relief requested by the plaintiff.

Domestic Relations Law §170(6) sets forth one of the two “no-fault” grounds for divorce in New York State.  Specifically, that section provides that an action for divorce may be maintained on the ground that “[t]he husband and wife have lived separate and apart pursuant to a written agreement of separation . . ., for a period of one or more years after the execution of such agreement”.  The section further provides that the agreement must be signed by the parties and “acknowledged or proved in the form required to entitle a deed to be recorded”. Moreover, the agreement must be filed in the office of the clerk of the county in which either party resides.

The Appellate Division affirmed the lower court’s decision holding that “No-fault divorce applies only where there is a previous decree of separation or a written separation agreement, as required by statute [and, here, t]he parties have neither”.  Plaintiff attempted to rely on a “Parenting Plan Agreement” executed by the parties after an earlier divorce action commenced by plaintiff was dismissed and the court in that action retained jurisdiction over ancillary issues.  The agreement related solely to matters of custody and visitation and, although it was signed and acknowledged by the parties and filed with the County Clerk by plaintiff, it neither purported to be a separation agreement as that term is generally understood, nor made any explicit reference to the parties’ separation.  The Fourth Department concluded, particularly in light of the circumstances in which the agreement was made, that the agreement did not “evidenc[e] the parties’ agreement to live separate and apart, [and] thus [it did not] satisfy[ ] the statutory requirement [with] respect to a separation agreement”.

As I stated previously, it important that the parties understand that New York does not make it easy for someone to prepare and execute a valid separation agreement.  In my opinion, even if someone decides to follow a self-help approach, any document should be reviewed by a family law lawyer to make sure that it fully represents the parties’ intent and complies with applicable law.  While it may be tempting for someone to do it for a variety of reasons, any future disputes involving such documents is likely to require involvement of lawyers.