Posts Tagged ‘Family Law’
Sunday, March 24th, 2013
I have previously written about prenuptial agreements and issues associated with them. Generally, in New York, a prenuptial agreement may be overturned only if the party challenging the agreement sustains the burden of proof, demonstrating that the agreement was the product of fraud, duress, or it was improperly executed.
In order to prove coercion or duress, a party must establish that he or she was somehow pressured into signing the agreement. The threat that there will be no marriage unless the agreement is signed is not duress according to numerous court decisions. If both of the parties were independently represented by counsel, and the agreement was the product of arm’s length negotiations, it may be nearly impossible to prove that the prenuptial agreement was procured by duress.
However, a recent appellate decision, Cioffi-Petrakis v. Petrakis, 2013 N.Y. Slip. Op. 01057 (2nd Dept. 2013), broke with the long-established line of cases and upheld a Long Island judge’s decision to void an prenuptial agreement that the wife of a millionaire says she was forced into signing by false promises made by her husband-to-be, 4 days before the wedding. The wife claimed that she believed her husband to be when he told her orally that his lawyers had made him get a prenuptial agreement signed to protect his business and promised to destroy the document once they had children and put her name on the deed to the house. She also claimed that her future husband gave her an ultimatum four days before the wedding for which her father had already paid $40,000, telling her to sign the document or it wouldn’t occur.
While the appellate decision is extremely brief, the trial decision is fairly detailed and provided the facts stated above. The key factor according to the trial judge was what he called a fraudulently induced contract and detrimental reliance on the part of the wife. Fraudulent inducement was the oral promise made by the husband to be and, according to the trial court, the bride relied upon that promise. However, most agreements in New York provide that the parties are only relying on the written representations contained in the agreement, and they are not relying on promises or representations not contained in the prenuptial agreement.
This decision is unprecedented. It is likely to create a great deal of litigation in cases where a party feels that his or her prenuptial agreement is unconscionable. I also suspect that it may get appealed to the Court of Appeals.
Tags: county, Domestic Relations Law, Family Law, fraud, Livingston, Monroe, Ontario, Orleans, prenuptial agreement, rochester ny divorce lawyer, Supreme Court, unconscionability, vacate, Wayne
Posted in divorce, Domestic Relations Law, drafting, Family Law, New York Law, pre-nuptial agreement, procedure, Supreme Court | No Comments »
Saturday, October 29th, 2011
In Butler v Hess, 85 A.D.3d 1689 (4th Dept. 2011), petitioner father filed a petition seeking to modify the parties’ existing joint custodial arrangement. Specifically, respondent mother had primary physical residence and the father had visitation. The father sought to prevent the mother from relocating with the child to Pennsylvania and sought sole custody of the child.
The mother filed a cross petition seeking permission for the child to relocate with her to Pennsylvania. The trial court denied mother’s application and prohibited her from relocating to Pennsylvania. The Appellate Division agreed with mother’s contentions that Family Court erred in denying her cross petition.
The Appellate Division found that the record established that, pursuant to the existing arrangement, the father had regularly scheduled visitation with the child. The mother remarried in December 2003, when the child was six years old, and the mother and the child began living with the mother’s husband at that time. In December 2006, the mother lost her job as a result of budget cutbacks and, in July 2007, the mother’s husband lost his job after his position was eliminated. The mother’s husband accepted a job in Pennsylvania in October 2007, which was the basis for the mother’s cross petition seeking permission to relocate with the child to Pennsylvania to join her husband. The Court concluded that the mother established by the requisite preponderance of the evidence that the proposed relocation would serve the child’s best interests”. Tropea v. Tropea, 87 N.Y.2d 727, 741 (1996). The Court of Appeals in Tropea held that economic necessity may present a particularly persuasive ground for permitting the proposed move. According to the Appellate Division, the record reflected that the trial court did not adequately, if at all, consider the financial considerations underlying the requested relocation. The mother requested permission to relocate because she and her husband lost their jobs within a relatively short period of time. The mother’s husband testified that both his health insurance, which also covered the mother and the child, and his severance pay ran out in August 2007. After the mother’s husband lost his job, he and the mother depleted their savings and their house was placed into foreclosure. The mother and her husband testified that they unsuccessfully attempted to locate jobs in Western New York and that the mother’s husband accepted the job in Pennsylvania out of financial necessity.
The trial court based its determination primarily on its conclusion that the relocation would “qualitatively affect” the child’s relationship with the father. The Appellate Division held that this was erroneous because the need to give appropriate weight to the feasibility of preserving the relationship between the parent without primary physical custody and [the child through suitable visitation arrangements does not take precedence over the need to give appropriate weight to the economic necessity for the relocation. Further, the record established that the proposed relocation would not have a substantial impact on the visitation schedule. The mother and the husband testified that they would transport the child to and from Pennsylvania every other weekend, and they offered to pay for a hotel for the father in Pennsylvania on his off-weekends so that he could exercise additional access with the child. The mother further testified that the holiday access schedule would remain the same because she and her husband would be returning to Western New York at those times to visit with their respective families, who resided there. In addition, the mother's husband purchased video conferencing equipment for his household and the father's household to enable the father and the child to communicate during the week and on the father's off-weekends.
Thus, the mother established "the feasibility of preserving the relationship between the [father] and child through suitable visitation arrangements” Tropea, 87 N.Y.2d at 741. Therefore, the Appellate Division reversed the lower court and permitted relocation.
While the appellate court recognized the mother’s need to relocate, it is unfortunate that it took a situation where the mother and her husband both lost their job and exhausted all of their financial resources and their house went into foreclosure. In my opinion, it would be appropriate for the court to consider the parties’ economic circumstances well before they become dire. It today’s economy, it is likely that we will see these issues addressed by the courts time and time again.
Tags: change in circumstances, county, custody, economic factors, Family Court, Family Law, Livingston, Monroe, Ontario, Orleans, relocation, rochester ny divorce lawyer, visitation, Wayne
Posted in best interests of the child, custody, Family Court, Family Law, New York Law, visitation | No Comments »
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.
Tags: consent, county, custody, Family Court, Family Court Act, family court attorney referee, Family Law, hearing, jurisdiction, Livingston, Monroe, Ontario, Orleans, procedure, rochester ny divorce lawyer, trial, visitation, Wayne
Posted in custody, Family Court, Family Law, New York Law, Order of Protection, procedure, Uncategorized, visitation | No Comments »
Sunday, September 4th, 2011
In Keefe v. Adams, 85 A.D.3d 1225 (3d Dept. 2011), the Appellate Division, Third Department, had to address issues related to interference with visitation which were raised by the father who brought a petition to modify existing custodial and residential arrangement. The parties had a custody and residential arrangement on the basis of May 2007 consent order which provided for joint custody, with mother having primary physical custody and father having visitation. In August 2009, father sought a modification of custody, alleging that mother moved out of county without his consent and is consistently late in exchanging child at drop-off location.
The court held that a significant change in circumstances occurred which reflected real need to modify parties’ stipulated custody order. The court found that mother admitted to moving with child to different county, 42 miles away from father, without informing him, and parties’ relationship deteriorated to point of inability to discuss important matters concerning their child. Further, mother also consistently arrived between 15 minutes to 2 hours late in dropping child off or picking child up. Mother interfered with father’s visitation rights by arriving late for dropping off and picking up child. The court also held that evidence showed as well that mother promoted her boyfriend as substitute for child’s father and that her relocation both required the child to change schools and hindered the father’s involvement in the child’s life. The father, on the other hand, manifests a markedly greater ability to control his behavior in front of the child, as well as a willingness to foster the relationship between the mother and child. The court noted that while custody with the father will unfortunately separate the child from his half brother, with whom he has a close relationship, the father testified that the half brother would be welcome in his home.
In view of the above circumstances, the court held that an award of sole custody to father with visitation to mother in child’s best interests. The court’s decision to modify existing custodial arrangement is not a common one. In most cases, courts are likely to fashion a less drastic remedy.
Tags: change in circumstances, county, custody, Family Court, Family Law, interference, Livingston, modification, Monroe, Ontario, Orleans, parental interference, rochester ny divorce lawyer, visitation, Wayne
Posted in best interests of the child, court orders, custody, Domestic Relations Law, evidence, Family Court, Family Law, modification, New York Law, visitation | No Comments »
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.
Tags: adoption, birth parent, consent, county, Family Court, Family Court Act, Family Law, Livingston, Monroe, notice, Ontario, Orleans, petition, procedure, rochester ny divorce lawyer, step-parent, Wayne
Posted in adoption, Family Court, Family Law, procedure, Uncategorized | No Comments »
Tuesday, July 26th, 2011
One issue that may come up in custody cases is whether a nonresidential parent has ability to take a child abroad during his or her period of visitation. It is not uncommon for a residential parent to object to such request, and sometimes parties wind up in court seeking a determination whether such travel can be permitted.
In a recent case, Russo v. Carmel, 2011 N.Y. Slip. Op. 05889 (4th Dept. 2011), the Appellate Division, Fourth Department, permitted the father to travel to Italy with his two year old child for a period of not more than 15 days on 60 days’ notice to the mother. The mother opposed the request, arguing that the child was never away from the mother for longer than 48 hours, that the father’s visitation was limited to 48 hour periods and that the child would be in an unfamiliar environment with relatives who were unknown to the child. The court held that the record established that, although the father’s visitation with the child was limited, the father has a close bond with her and, during visitation, he prepared her meals, bathed her, administered medication as necessary and took her on outings. Further, the mother did not express any concerns that the father would abscond with the child. The court concluded that it is in the best interests of the child to travel with the father to Italy to meet her extended family.
While in most cases the court is unlikely to allow a parent to travel abroad with a very young child, in this case, the father was able to present convincing evidence that the trip was intended to introduce the child to her relatives abroad. Further, the mother was unable to present any evidence of the father’s inability to take care of the child and was not afraid that the father would refuse to come back to the United States. In view of these facts, the trial court’s decision and the Appellate Division’s decision were clearly correct. While the residential parent may have a significant measure of control over non-residential parent’s ability to travel with the child, the residential parent should not raise objections unless there is specific evidence that such travel would be inappropriate and not in the best interests of the child.
Tags: abroad, best interests of child, child, county, custody, Family Court, Family Law, international, Livingston, maintenance, Monroe, New York Law, Ontario, order, Orleans, rochester ny divorce lawyer, travel, visitation, Wayne
Posted in best interests of the child, court orders, custody, Family Court, Family Law, New York Law, visitation | No Comments »
Saturday, June 11th, 2011
One of the questions that I was asked several times during the last year was whether there is a statute of limitations applicable to Qualified Domestic Relations Orders (QDROs)? This question usually come up in situations where one former spouse was entitled to a portion of the other former spouse’s retirement benefits, however, the QDRO was never done, and a substantial period of time has passed. If there was an applicable statute of limitations, the former spouse who has failed to act would lose his or her right to collect a portion of the former spouse’s retirement.
However, a couple of recent decisions made it clear that with respect to QDROs, there is no applicable statute of limitations and a QDRO can be submitted to the court at any time. In Denaro v. Denaro, 2011 N.Y. Slip. Op. 04409 (2nd Dept 2011), the Appellate Division, Second Department, held that “the statute of limitations does not bar issuance of the QDRO.” Relying on Bayen v Bayen, 81 A.D.3d 865 (2nd Dept. 2011), the court held that ”[M]otions to enforce the terms of a stipulation of settlement are not subject to statutes of limitation… [B]ecause a QDRO is derived from the bargain struck by the parties at the time of the judgment of divorce, there is no need to commence a separate action in order for the court to formalize the agreement between the parties in the form of a QDRO”. Id. (citations omitted.)
While I would not recommend to anyone delaying preparing and submitting a QDRO, any such submission is not going to be barred by a statute of limitations. At the same time, any late submission is likely to cause another set of problems if the retirement asset is in pay status and payments are being made to the other spouse.
Tags: county, Domestic Relations Law, Family Law, Livingston, Monroe, Ontario, order, Orleans, QDRO, Qualified Domestic Relations Order, rochester ny divorce lawyer, statute of limitations, Supreme Court, Wayne
Posted in court orders, divorce, Domestic Relations Law, equitable distribution, Family Law, New York Law, QDRO, Settlement Agreements, Stipulations, Supreme Court | No Comments »
Sunday, June 5th, 2011
One of the issues that frequently comes up in divorce is cases has to do with tax implications of the divorce action. Tax issues may involve dependency exemptions, or may involve issues dealing with allocation of taxes on income or assets subject to equitable distribution. The courts have addressed these issues in the past and have always required some admissible proof with respect to tax implications of the relief sought in the divorce action. However, some parties still fail to present admissible trial evidence that would allow the court to make decisions allocating tax liabilities, if any.
In Bayer v. Bayer, 80 A.D.3d 492 (1st Dept. 2011), the Appellate Division had to address whether the trial court properly disregarded the tax consequences impacting plaintiff’s receipt of fifty percent of monies which defendant had earned in the fiscal quarter preceding commencement of the divorce action. The Appellate Division held that since defendant failed to present evidence from which the court could determine the amount of such taxes, the trial court acted properly. The Appellate Division relied upon D’Amico v. D’Amico, 66 A.D.3d 951 (2nd Dept. 2009). In D’Amico, the court held that “[W]hile this court has recognized that the value of a pension should be discounted by the amount of income tax required to be paid by a party, where the party seeking the discount fails to present any evidence from which the court could have determined the dollar amount of the tax consequences, the computation of the award without regard to tax consequences will be deemed proper”. (citations omitted)
Therefore, if there are tax issues associated with dependency exemptions, maintenance, retirement assets or equitable distribution, in order to have trial court consider those issues , a party must present admissible evidence of any tax consequences that may result. If a party fails to do so, the trial court will not consider any tax implications. As a result, a party seeking the court’s decision with respect to tax issues will have to present expert testimony of an accountant who would be able to present admissible evidence of any tax implications.
Tags: dependency exemptions, divorce, Domestic Relations Law, equitable distribution, expert testimony, Family Law, Livingston, maintenance, Monroe, Ontario, Orleans, rochester, rochester ny divorce lawyer, taxes, Wayne
Posted in divorce, Domestic Relations Law, equitable distribution, evidence, Family Law, maintenance, New York Law, Supreme Court, taxes | No Comments »
Saturday, April 9th, 2011
One question that so far has not been resolved with any degree of certainty by the courts is whether in a divorce action brought pursuant to the new no-fault divorce statute requires specific proof that the parties’ marriage was irretrievably broken for a period of six months or longer. It is an important question since in the past divorce attorneys were able to challenge grounds for divorce and force plaintiffs to establish that there were adequate grounds for divorce. In a significant number of cases, grounds trials were held for economic reasons, i.e., the monied spouse did not want to divide assets and/or pay spousal maintenance.
Six months after the no-fault statute was enacted by the New York’s legislature, we are learning that the courts are divided on this issue, with some courts requiring proof that the marriage was actually irretrievably broken for a period of six months or longer, and with some courts holding that there is no defense to the no-fault grounds.
In Strack v. Strack, 2011 N.Y. Slip. Op. 21033 (Sup. Ct. Essex Co. 2011), the court held that the question of whether the marriage was irretrievably broken was a question of fact requiring a trial.
The facts in Strack are as follows. The parties were married on May 25, 1963 and plaintiff sought a divorce based upon the no-fault grounds contained within Domestic Relations Law §170 (7). Defendant moved to dismiss the complaint, contending (1) that the complaint lacked specificity; (2) that the conduct alleged in the complaint was barred by the five-year statute of limitations; and (3) that the complaint failed to state a cause of action for divorce under Domestic Relations Law §170 (7).
Effective relative to actions commenced on or after October 12, 2010, Domestic Relations Law §170 (7) permits divorce where “[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.” This additional ground for divorce has given parties the option of securing a divorce without alleging fault.
Here, the allegations in the complaint were as follows:
The relationship between husband and wife has broken down such that it is irretrievable and has been for a period of at least six months. For a period of time greater than six months, Defendant and Plaintiff have had no emotion in their marriage, and have kept largely separate social schedules and vacation schedules. Each year Plaintiff and Defendant live separately throughout most of the winter months. Though they share the residence for several months out of the year, Plaintiff and Defendant have not lived as husband and wife for a period of time greater than six months. Plaintiff believes the relationship between she and Defendant has broken down such that it is irretrievable and that the relationship has been this way for a period of time greater than six months.
Having decided that the above allegations stated a cause of action and were not barred by the statute of limitations, the court stated that Domestic Relations Law §170 (7) is not a panacea for those hoping to avoid a trial. Rather, it is simply a new cause of action subject to the same rules of practice governing the subdivisions which have preceded it. By referring to Domestic Relations Law §173 which provides that “[i]n an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce” and, here, the Legislature failed to include anything in Domestic Relations Law §170 (7) to suggest that the grounds contained therein are exempt from this right to trial. The court further held that since the phrase “broken down such that it is irretrievable” is nowhere defined in the statute, the determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact.
In a more recent decision, A.C. v. D.R., 2011 N.Y Slip. Op. 21113 (Sup. Ct. Nassau Co. 2011), the court held that once the plaintiff makes a sworn allegation that the marriage had irretrievably broken down, a trial not required, and there is no defense to the action. The court held that the only requirement to satisfy the no-fault ground for divorce is a party’s sworn statement alleging that the marriage has irretrievably broken down. Specifically, the court stated:
It is sufficient that one or both of the parties subjectively decide that their marriage is over and there is no hope for reconciliation. In other words, a plaintiff’s self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken.
As the no-fault statute requires, in order for a judgment of divorce to be entered, all the issues relating to the divorce, including equitable distribution, maintenance, child custody and support need to be resolved before a party can be granted a divorce.
While I am not aware of the court decisions on this issue here in Rochester, I hope that the courts will grant divorce solely on the party’s subjective allegation that the marriage has irretrievably broken down. Since the trial courts are split on the issue, it is likely that appellate courts will have to address this issue eventually. I hope that the holding of the more recent case will be widely adopted follwint he Legislature’s intent in creating a true no-fault divorce in New York.
Tags: county, divorce, Domestic Relations Law, Family Law, grounds, Livingston, Monroe, New York Law, no-fault, Ontario, Orleans, rochester, rochester ny divorce lawyer, Supreme Court, Wayne
Posted in divorce, Domestic Relations Law, Family Law, grounds, New York Law, Supreme Court | No Comments »
Friday, February 18th, 2011
When the Domestic Relations Law was amended in 2009, it included additional requirements related to commencement of divorce actions. Specifically, DRL §236(B)(2)(b) and 22 N.Y.C.R.R. §202.16-a included a requirement for the so-called automatic orders. Until recently, there was still a question of whether the automatic orders could be enforced using court’s contempt power since automatic orders are not signed by a judge but, instead, are signed by a divorce attorney.
In P.S. v. R.O., 2011 N.Y. Slip. Op. 21031 (Sup.Ct. New York Co. 2010), the court specifically addressed this issue. The court held that violation of automatic orders can subject a party to civil contempt.
The wife commenced divorce on October 13, 2010, by filing summons with notice and notice of automatic orders setting forth the statutory automatic orders verbatim, which were served on husband. Parties owned joint vacation home in Vermont and had joint bank account. Upon separating, parties continued to deposit rental income from Vermont home into joint account to pay for Vermont home expenses, until December 15, 2010, when rental broker deposited $6,000 into joint account and wife transferred fund into her sole bank account. On January 4, 2011, wife transferred those funds back into joint account. Husband moved to hold wife in contempt, alleging that since May 2009, he has used funds in joint account to pay for Vermont home expenses. Wife contended that she transferred such funds out of account because she feared husband would not spend funds on Vermont home and dissipate such asset.
In addressing these issues, the court stated that to establish civil contempt, moving party must demonstrate by clear and convincing evidence that party charged with contempt violated clear and unequivocal court mandate which prejudiced moving party.
In analyzing whether the automatic orders amounted to a clear and unequivocal court mandate, the court reviewed the Court Rules, 22 N.Y.C.R.R. §202.16-a, which requires service of a copy of the “automatic orders” on defendant, and contains language identical to that found in DRL §236(B)(2)(b). The Court Rules are promulgated by the Chief Administrator of the Courts on behalf of the Chief Judge of the Court of Appeals under the authority vested in them by Judiciary Law Sections 211(1)(b) and 212(2)(b), and by Article Six, Section 30, of the New York State Constitution, to adopt rules to regulate practice and procedure in the courts. Thus, the court found that the Court Rules constitute lawful mandates of the court. It further found that the legislative history of Domestic Relations Law §236(B)(2)(b) makes clear that the legislature intended that a violation of the automatic orders would be redressed by the same remedies available for violations of any order signed by a judge.
Accordingly, the court found that civil contempt is available as a remedy for violation of the automatic orders, provided that the plaintiff has served the defendant with adequate notice of the automatic orders, as has been done in this case. However, the court in P.S. found that the wife did not violate the orders, or met the other requirements for imposition of contempt.
Tags: automatic orders, civil contempt, contempt, county, divorce, Domestic Relations Law, Family Law, Livingston, Monroe, Ontario, Orleans, procedure, rochester ny divorce lawyer, Supreme Court, violation, Wayne
Posted in court orders, divorce, Domestic Relations Law, Family Law, New York Law, procedure, Supreme Court | No Comments »
