Expanding Definition of What It Means to Be a Parent

The New York State Court of Appeals ruled last week in Brooke S.B. v Elizabeth A.C.C., 2016 N.Y. Slip. Op. 05903, that a loving caretaker who is not related to, or the adoptive guardian of, a child could still be permitted to ask for custody and visitation rights.

The ruling came from a litigation between a couple, known in family court papers only as Brooke S.B. and Elizabeth A. C.C. In 2008, Elizabeth became pregnant with the couple’s child through artificial insemination. Though Brooke had no legal or biological ties to the child, a boy, she maintained a close relationship with him for years, cutting his umbilical cord at birth, giving him her last name and raising him jointly with Elizabeth. In 2013, after their relationship ended, Elizabeth tried to cut off Brooke’s contact with the boy. Brooke sued for custody and visitation privileges, but was turned down by a lower court, which found that legal precedent pursuant to Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), did not define a non-adoptive, non-biological caretaker as a parent.

In its ruling, the Court of Appeals overturned Alison D., stating that “the definition of ‘parent’ established by this court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships.” It further held that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody.”

While Brooke S.B. seems to be applicable primarily to same sex couples, it is easy to see that the same type of argument may be applicable to heterosexual couples in situations where one partner is artificially inseminated.  The Court of Appeals declined to state what the proper test should be in cases where no preconception agreement can be shown to have existed between nonbiological couple. As far as the proof of the parties’ intent, the courts are likely to look at the parties’ participation such activities as birthing classes, partners’ inclusion on birth notices and other traditional indications of the existence of a pre-conception agreement between a couple.

Final Custody Determination Requires a Plenary Hearing

A mother who lost custody of her children after she broke windows at their father’s house and set fire to his clothes in the driveway should have received an evidentiary hearing, the Court of Appeals has ruled in S.L. v. J.R., 2016 N.Y. Slip. Op. 04442 (2016).  According to the filings, the mother, identified as S.L., and the father, identified as J.R., were married in 1997 and had two kids together.

In September 2012, after 15 years of marriage, S.L. filed for divorce from J.R., and sought full custody of the children. Also that month, she texted J.R.—who had moved out of the family’s house several months prior—that she would burn down the house and set his clothes on fire.

J.R. arrived at the house to find his clothes burnt in the driveway and windows at the house smashed out.  He filed for temporary sole custody of the children, alleging that he feared for their safety because of incidents involving harassment by S.L. and that she also had extramarital affairs and abused alcohol and drugs.

S.L. admitted to setting fire to J.R.’s wardrobe and her involvement in several other incidents, including a past charge of aggravated assault. In October 2012, the trial ruled that there were “enough red flags” to justify granting temporary sole custody of the children to J.R. In April 2013, S.L.’s visitation was suspended after a therapist determined that it would not be in the best interest of the children to allow visitation to continue until she entered anger management therapy.

A few months later, the trial court granted sole custody to J.R. without having a hearing, writing that a hearing was not necessary because the “allegations are not controverted” and that S.L. was being charged in three pending cases in the Integrated Domestic Violence part. In two of the cases, the judge said, S.L. was charged with breaking orders of protection prohibiting her from contacting J.R. or the children.

S.L. appealed trial court’s ruling, but in 2015, the Appellate Division, Second Department affirmed the lower court in S.L. v. J.R., 126 A.D.3d 682 (2nd Dept. 2015), writing that, while custody decisions are generally only made following a comprehensive evidentiary hearing, no hearing is necessary when the court “possesses adequate relevant information to enable it to make an informed and provident decision as to the child’s best interest,” citing its 2004 ruling in Matter of Hom v. Zullo, 6 A.D3.d 536 (2nd Dept. 2004).

But, on June 9, the Court of Appeals unanimously reversed the Second Department’s decision. The Court wrote that while there should be no “one size fits all” rule mandating a hearing in every custody case, custody decisions should generally be made after a full and plenary hearing. In the case of S.L., there were facts relevant to the best interest analysis that were still in dispute, and the trial court appeared to base its decision on hearsay and on the statements of a forensic investigation whose credibility was not questioned by either party.

While the mother was successful in reversing the trial court’s determination, ultimately, I do not believe that it will make a difference when the case is tried. Given the conduct at issue, it is unlikely that the parties will be able to have a joint custodial arrangement.

Parent Who Is Prevented From Seeing Child By Other Spouse Is Not Obligated To Pay Child Support

I have previously written about situations where a child becomes constructively emancipated as a result of the child’s refusal to have contact with the parent.  What happens in situations where a parent is prevented from seeing the child by the other parent? In Coull v. Rottman, 131 A.D.3d 964 (2nd Dept. 2015) the Appellate Division, Second Department suspended father’s obligation to make child support payments.

The father last visited his son in February 2010. For the next several months, he said he would go to the exchange location on visitation days, but often neither the mother nor his son would be there. In one instance, both the mother and the child appeared, but the mother said the boy would not leave the car.

The court also found that the mother assumed an inappropriately hostile stance toward the father and witnesses who testified in his favor.  She further stated many times that she would never allow the father to see his child and would do “whatever it takes” to keep the boy away from him.

Given the circumstances, the court concluded that the father’s obligation to pay child support should be suspended.  While parents have a duty to continually support their children until they are 21 years old, where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended.

Further, the relationship between the father and the child had deteriorated and while the boy had participated in therapy for several months to foster a relationship with his father, he remained “vehemently opposed” to any type of visitation with the father.  Since the child was 13 at the time of the hearing, and the judge had placed great weight on the child’s wishes, since he was mature enough to express them.

A similar result was reached by the court in Argueta v. Baker, 2016 N.Y. Slip. Op. 01838, where the Appellate Division held that the father had demonstrated that the mother actively interfered with and deliberately frustrated his visitation with the child by failing to provide him with the child’s Florida address, preventing him from seeing the child when he was in Florida, and failing to notify him when the child was in New York. Therefore, the father was entitled to suspension of his child support obligations.

Both parental alienation and parental interference cases turn on specific proof of the child’s and parents’ actions. They may also require testimony of the child. If the parental relationship with the child is already bad, forcing the child to testify is not likely to improve it.

Validity and Finality of Custody Stipulations

Many custody cases are resolved by agreement. When this happens, the parties often place their agreement on the record, either as an oral stipulation recorded by court stenographer or reduce it to a written agreement. Sometimes, immediately after or some time later on, a party to the stipulation may change his mind and ask that the court vacate the stipulation.

In Jon v. Jon, 2015 N.Y. Slip. Op. 51118(U) (Sup. Ct. Nassau Co. 2015), the plaintiff, immediately after entering into a written settlement stipulation, regretted her decision and changed her mind and attempted to have the stipulation vacated. Plaintiff argued that since she was not represented by counsel, that her agreement was not knowing and voluntary, and it came as a result of overreaching by defendant or undue pressure placed on her.

The court heard testimony of the parties determined that although wife was not represented by counsel, the absence of independent legal representation, without more, did not establish overreaching or require nullification of an agreement. She had the opportunity in just a few hours to negotiate with defendant’s counsel in the presence and with the assistance of a court mediator. She decided to pass on that opportunity.

Furthermore, plaintiff was not significantly disadvantaged by the lack of counsel because she could have obtained equal parenting time with her children if she had only agreed to it. She declined because she did not want the children shuttling between their parents. If defendant was not going to agree to let plaintiff have custody of the children—and he wasn’t—she decided to do what in her opinion was the next best thing: let the children stay with defendant. And she did not identify a single thing she wanted in the stipulation that was not included. Given that the stipulation was drafted and signed in “neutral territory”—the courthouse within earshot of the judge—and since the attorney for the children was present throughout, the absence of an attorney did not render the stipulation unfairly made.

The court concluded that neither the terms of the stipulation nor the circumstances surrounding its execution evidence overreaching on the part of defendant. As a result, the court held that it may “not intrude so as to redesign the bargain arrived at by the parties on the ground that judicial wisdom in retrospect would view one or more of the specific provisions as improvident” or imprudent. Christian v. Christian, 42 N.Y.2d 63, 72 (1977).

The key finding that the court made was the following:

This court does believe plaintiff in one important respect: she freely and fairly made a decision and executed an agreement that she very quickly regretted and desired to change. But there is no statute or case that affords a contracting party the opportunity to change their mind, regardless of how quickly they desire to do so, in the circumstances presented here. This court sees the wisdom in affording to an unrepresented party the opportunity within a short window the absolute right to rescind a custody agreement. That would be plaintiff’s only salvation when faithfully applying the current statutory and common law to the facts in this matter.

Stipulations are meant to bring resolution and finality to the parties. They should not be taken lightly and should be thoroughly understood before being finalized.

Terminating Spousal Support Provisions After Divorce Due to Change In Circumstances

In New York, spousal support, also sometimes referred to as “alimony” or “spousal maintenance” can be granted in a divorce case to either spouse by the court pursuant to Domestic Relations Law §236. Alternatively, the parties can agree to a specific amount of maintenance, its duration, and the circumstances under which it will terminate in their settlement agreement.

Factors that a judge or the parties will consider in determining spousal support, among others, include:

The duration of the marriage and the age and health of both parties;
The present and future earning capacity of both parties;
The ability of both to become self-supporting;
The reduced or lost lifetime earning capacity resulting from having foregone or delayed education, employment training or career opportunities during the marriage;
The presence of children;
Tax consequences.

Even once the amount of maintenance is determined and included in the judgment of divorce or settlement agreement, spousal maintenance can be modified.

However, if the maintenance was set by the parties’ settlement  agreement, the party seeking its modification due to a change in circumstances will have to meet a significant burden of proof. Specifically, the party seeking the change will have to show prima facie evidence of “extreme hardship” before the court can hold a hearing to resolve these issues. Extreme hardship means that the payor’s circumstances are so adverse that the party can’t meet its living expenses without modifying spousal support. In a recent decision, McKelvey v. McKelvey, 2015 N.Y. Slip. Op. 02830 (3rd Dept. 2015), the Appellate Division found that the husband presented such evidence when he was able to show that “the undisputed proof indicating that the husband earns, after taxes, less than his monthly support obligation was sufficient to demonstrate prima facie evidence of extreme hardship, and Supreme Court should have held a hearing on his request to modify his support obligation.” Once such evidence is presented then the court hearing the case would hold a fact-finding to determine how spousal maintenance should be modified.

If spousal maintenance was set by a judge after a hearing, the party seeking the modification must establish a substantial change in circumstances and show that the needs of the dependent spouse or financial abilities of the paying spouse that warrant modification. The party making such request would face a significant burden and the court will have to consider such factors as the party’s current and past earnings, costs of living, financial obligations, as well as assets and liabilities.  In Klapper v. Klapper, 204 A.D.2d 518 (2d Dept. 1994), 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.”

Further, a party who willfully or voluntarily reduces income will not receive a reduction in support payments. If evidence of such actions is presented to the court, the party seeking modification will not receive and is also likely to be ordered to pay the other spouse’s attorneys’ fees.

Enforcement of Payment Obligations Pursuant to Judgment of Divorce

One of the issues that occurs in cases where a party is ordered to make spousal maintenance or child support after the judgment of divorce is entered, is that party may fail to make such payments. This brings up a question of what remedy should be utilized under those circumstances.

A recent decision of Keller v. Keller, 2015 N.Y. Slip. Op. 02453 (2d Dept. 2015) demonstrates how the court approaches a contempt application based upon payor’s failure to pay child support and related expenses. In Keller, a contempt application was brought after the money judgment for child support went unpaid for a number of years, and 6 Family Court orders were apparently ignored by the payor. In discussing the remedies available, the Appellate Division stated that

Pursuant to Domestic Relations Law § 245, a spouse may be punished for contempt for failing to make payments pursuant to [a judgment of divorce], but it must appear presumptively, to the satisfaction of the court,’ that payment cannot be enforced pursuant to Domestic Relations Law §243 (sequestration), Domestic Relations Law §244 (money judgment), CPLR §5241 (income execution) or CPLR §5242 (income deduction)” (Jones v. Jones, 65 A.D.3d 1016, 1016; see Klepp v. Klepp, 35 A.D.3d 386; Higbee v. Higbee, 260 A.D.2d 603). Thus, contempt may be warranted where the record demonstrates “that resort to other, less drastic enforcement mechanisms [has] been exhausted or would be ineffectual” (Capurso v. Capurso, 61 A.D.3d 913, 914; see Jones v. Jones, 65 A.D.3d at 1016; Rosenblitt v. Rosenblitt, 121 A.D.2d 375).

While discussing the specific circumstances of the case, the Appellate Division stated that plaintiff repeatedly failed to pay child support as directed in the parties’ judgment of divorce, or to abide by the court orders and money judgments subsequently entered against him on account of child support arrears and related expenses. The record further showed that the defendant either exhausted all enforcement remedies other than contempt, or that such further attempts “would have been futile”. The court further held that the plaintiff had the burden of going forward with evidence of his inability to make the required payments. After reviewing the facts and applicable law, the Appellate Division found that holding plaintiff in contempt of court was the correct remedy.

If Keller was brought in Family Court, the court’s would apply a different set of rules. In Family Court, under Family Court Act §454(3), there is a presumption that a parent’s failure to pay court ordered child support is willful. Payee’s sworn testimony as to nonpayment of ordered child support payments from payor is a prima facie evidence of a willful violation. Once the violation is shown, the burden shifts to the payor to demonstrate inability to make the required payments.  Upon the court’s finding of willful violation, the court may grant attorneys’ fees, 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. Further, the court may direct incarceration of 6 months as a remedy as well. Thus, defendant would not have to make a showing that all available remedies were exhausted.

The above discussion illustrates that other remedies should always be considered before seeking a finding of contempt since a finding of contempt may require a substantial motion practice and, most likely, a hearing.  Thus, contempt motions should not be brought unless all other remedies were exhausted or, alternatively, if nonpayment of child support, a willful violation petition should be filed in Family Court.

Constructive Emancipation and the Child’s Conduct

I have previously written about constructive emancipation issue and also addresses some of the applicable law in another post.  Generally, a child can become emancipated through his actions when the child either refuses to have contact with the parent or voluntarily abandon’s parent’s home. However, what happens when a child engages in abusive conduct directed toward the non-residential parent?

In a recent decision, Cornell v. Cornell, 2015 NY Slip Op 25030 (Sup. Ct. Monroe Co. 2015), the court held that where a child’s conduct directed at the parent is abusive and inappropriate, the court can construe such conduct as abandonment. In Cornell, the evidence presented to the court established that the child engaged in communications that established “a substantial hatred and/or disrespect for the mother”. In the court’s view,

a child who utters such terms about their parent cannot realistically expect this court to ignore such conduct and order the maligned parent to pay any form of support for the child. A child over the age of 18, seeking reimbursement for college expenses, cannot use such language toward a parent and then, either directly or through his other parent, seek child support, and/or payment of college expenses. No one should be permitted to refer to their mother in such fashion, and then, without recanting or asking for forgiveness, seek the court’s assistance to have that person support their future life. This court will not condone such actions by an unworthy son.

Thus, the court emancipated the child and the mother was no longer obligated to contribute toward support of the child or pay a portion of his college expenses.

This decision is particularly interesting because of the court’s emphasis on the child’s negative conduct directed at the mother. The court also mentioned that the child refused subsequent contact with the mother. While refusal to have contact is significant, according to the controlling cases, the court also has to analyze the parent’s efforts to reestablish contact with the child. Unfortunately in Cornell, the court did not discuss what specific actions the mother undertook to reestablish contact with the child.

Ultimately, I think that the court has reached result.  It will be interesting to see if this decision will be appealed and what the Appellate Division’s decision will be.

Tracing Method of Dividing Defined Contribution Retirement Assets

I have previously written about division of marital retirement assets which is traditionally done by computing a time based coverture fraction pursuant to the New York Court of Appeals’ decision in Majauskas v. Majauskas, 61 N.Y.2d 481 (1984). Majauskas was the seminal New York case that decided that the portion of the spouse’s pension or a retirement plan such as 401k, earned during the marriage, is marital property subject to equitable distribution. To the extent that a pension was earned or 401k contributions were made during the marriage, they are, for purposes of New York law, are considered to be marital property. The Majauskas decision sets forth the formula that normally is to be followed in dividing retirement assets and consists of a fraction computed on the basis of duration of the marriage and duration of the party’s employment.

While Majauskas has been the prevailing law for the last 30 years, a recent decision suggests that with regard to defined contribution retirement plans such as 401k or 403b plans, or their equivalents, the trial court has discretion to utilize a tracing method of equitable distribution. According to Jennings v. Brown, 43 Misc.3d 1229(A) (Sup. Ct. Seneca Co. 2014), “a small minority of cases have started to hold that use of a time-based fraction to determine the marital share of a defined contribution plan is permitted”. Tracing would allow the court to treat appreciation on any separate property portion of such retirement assets as separate property, thereby reducing the non-titled party’s interest in the asset. The court observed that utilization of time coverture fraction methodology utilized by the Court of Appeals in Majauskas may result in overvaluation of non-vested party’s interest and tracing method would remedy that problem.

In Jennings, the plaintiff argued that the tracing method should be utilized to establish defendant’s interest in plaintiff’s 401k plan. However, while accepting tracing methodology as valid, the court held that it was constrained by the terms of the parties’ judgment of divorce which referenced Majauskas method of dividing retirement assets.

While Jennings is a trial level decision, and I question at least one of the cases it relies on, it suggests that with regard to defined contribution retirement funds, tracing method could be accepted by the trial court. Under appropriate circumstances, tracing method may greatly benefit the titled spouse. It also suggests that when the case is tried, the party seeking to utilize tracing method will need to present expert testimony on this issue. In Jennings, an affidavit of a CPA was presented to the court.  Since Jennings is a trial level decision, it remains to be seen whether the appellate courts will agree with its reasoning.

Temporary Maintenance and Payment of Additional Expenses by Monied Spouse

One issue that comes up fairly often in divorce cases is the issue of whether the monied spouse who is paying temporary maintenance is also responsible for additional expenses incurred by the non-monied spouse. At least some of the prior decisions held that when the temporary maintenance is being paid, the recipient was responsible for his or her living expenses, including any mortgage payments or housing expenses.

However, it appears that at least some of the appellate decisions hold otherwise. In Vistocco v. Jardin,116 A.D.3rd 842 (N.Y.A.D. 2 Dept.), the parties were married in 1995 and had three unemancipated children. The wife made a request for temporary maintenance as well as for payment of carrying costs on the marital residence. The trial court awarded the defendant $3,000 per week for child support and $3,000 per week in temporary spousal maintenance, directed the plaintiff to pay the mortgage and taxes on the marital residence where the defendant resided with the parties’ children, directed the plaintiff to pay the defendant’s car insurance, and awarded the defendant interim counsel fees and expert fees in the sums of $12,500 and $3,500, respectively. The Appellate Division affirmed.

The plaintiff argued that the Supreme Court erred in directing him to pay, in addition to spousal maintenance, the mortgage and taxes on the marital residence and the defendant’s car insurance. He contended that the pendente lite maintenance award is intended to cover the defendant’s basic living expenses, which include the mortgage, property taxes, and her car insurance. The Appellate Division held that the formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5-a)(c) is intended to cover all of a  payee spouse’s basic living expenses, including housing costs, the costs of food and clothing, and other usual expenses (see  Khaira v. Khaira, 93 AD3d 194). It further held that it may be appropriate to direct payment by the monied spouse of the mortgage and taxes on the marital residence and other expenses of the nonmonied spouse under certain circumstances (see id.). In light of the evidence that the plaintiff’s income exceeded $500,000 and the gross disparity between the plaintiff’s income and the defendant’s income, the trial court properly awarded additional support in the form of a directive to the plaintiff to pay the mortgage and taxes on the marital residence (Domestic Relations Law § 236[B][5-a][c][2][a][ii] ), as well as the defendant’s car insurance.

Unfortunately, until the Court of Appeals hears a case involving these issues, it is likely that there will not be uniformity among the trial court decisions. If you are non-monied spouse, you have nothing to lose by making a request for carrying costs of the marital residence, provided that there is financial wherewithal on the part of the monied spouse. Ultimately, a decision of whether such additional should be requested should be made on case by case basis.

Updates to New York’s Child Support Standards Chart

According to the Child Support Standards Chart, prepared by New York State Office of Temporary and Disability Assistance, Division of Child Support Enforcement, and released March 12, 2014, the 2014 poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services is $11,670 and the 2014 self-support reserve is $15,755. These numbers are highly relevant for child support calculations and may have a role in determining child support arrears in situations where payor’s income is less than the guideline amount for a single person. The Chart is found at this link. The Child Support Standards Chart is released each year on or before April 1.

Additionally, as required by the Child Support Standards Act, the combined parental income amount used to calculate basis economic support has been changed to $141,000. This figure is adjusted every two years (effective January 31st) based on the average annual percent changes to the federal Department of Labor’s Consumer Price Index for Urban Consumers. The basic economic support figure is highly relevant in the cases where combined parental income is substantially in excess of it since the court may utilize parental income in excess of the basic economic support figure under appropriate circumstances.