Automatic Orders and Contempt in Divorce Actions

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.

No-Fault Divorce Becomes Law In New York

The no-fault divorce bill has been signed by the Governor Patterson and will go into effect in 60 days.  That means that starting on October 13, 2010, someone who wants to be divorced in New York will no longer be required to make allegations of martial fault by the other spouse and will only be required to swear that the relationship between husband and wife has  broken  down  irretrievably  for  a period of at least six months.  The new law will apply to the divorce actions commenced on or after such effective date.

In addition, the Governor signed legislation that will revise the process for setting awards of temporary maintenance while a divorce is pending, by creating a formula and list of factors that would presumptively govern such awards. This would allow for speedy resolution of the maintenance issue, and prevent less well-off parties to divorce proceedings from falling into poverty during litigation, because they lack the resources to obtain a temporary maintenance order. Another bill would create a presumption that a less monied spouse in a divorce case is entitled to payment of attorneys’ fees. Under current law, a party that cannot afford to secure representation in a divorce proceeding must make an application for fees at the end of the process, which can force a poor individual to proceed without a lawyer, or to surrender on important issues due to lack of means. Provisions of the Domestic Relations Law related to temporary maintenance and attorneys fees will go into effect in 60 days as well.

These are important development in New York’s family law and I think that it will take some time to assess their impact.  At the same time, I think that they will be welcomed by divorce lawyers in this state and will make divorce easier for the divorcing spouses. With respect to the bill establishing the formula for temporary maintenance, it is highly likely that any such temporary maintenance award is going to be used by the courts as a basis for a permanent maintenance award.

Varying From Statutory Child Support Percentages

I have previously written about the court’s ability to consider not only the income one or both parties actually reported but the income as should have been reported.  What is not commonly known is that the court, whether Supreme Court or Family Court, can vary from the statutory percentages, by either increasing or reducing child support amounts.

In Irkho v. Irkho, 66 A.D.3d 682 (2d Dept. 2009), the Appellate Division held that Family Court properly denied the father’s objections to the order of the Support Magistrate, which departed from the numerical guidelines of the Child Support Standards Act and directed him to pay 50% of the child’s regular monthly expenses.  The Appellate Division held that a hearing court is not bound to apply the statutory percentage established in Family Court Act 413(1)(c), but may determine the child support obligation through the application of the percentage set forth in Family Court Act 413(1)(c), the factors delineated in Family Court Act 413(1)(f), or a combination of both (see Cassano v. Cassano, 85 N.Y.2d 649 (1995)).  Family Court providently exercised its discretion in departing from the prescribed percentage.

The above is fairly uncommon situation since in vast majority of the cases the courts will apply the CSSA.  It is unfortunate that the Appellate Division did not discuss the facts of the case in detail.  Whatever the circumstances were that resulted in the court’s decision may applicable in other cases.  If the child’s monthly expenses exceed the amount that the father would be obligated under the CSSA, family law lawyers would certainly appreciate knowing under what circumstances their clients may receive or be obligated to pay child support in excess of the CSSA amounts.

Grounds for Divorce, Truthfulness, Paternity and Consequences

I have previously written how New York’s fault system of divorce which requires the parties to satisfy grounds requirements tends to result in unneeded matrimonial litigation and, in some case, leave the parties married despite the fact that the marriage died many years ago.  A recent decision brought a new twist on an all too common situation.

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.

defendant contends that the child, who was not born until March 19, 2008, cannot possibly be his. Defendant further submits that if plaintiff is taking the position that Ethan is his child, this means that the sworn statements in his verified complaint concerning the lack of sexual relations must be untrue. As a result, defendant cross-moves for an order finding that plaintiff has violated Penal Law section 210.10, perjury in the second degree.
FACTS
The parties were married on July 1, 2006, in New York City. Fifteen months later, on or about September 7, 2007, plaintiff commenced an action for divorce based on two of the statutory grounds. One was the constructive abandonment of plaintiff by defendant for a period of one year proceeding commencement of the action (DRL §170[2])[FN2]; the other was the cruel and inhuman treatment of plaintiff by defendant (DRL §170[1]). Plaintiff ultimately relied solely on the first cause of action, constructive abandonment, in seeking the divorce.
With respect to his 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 states that there are no children of the marriage.
Defendant 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).” She further stated that she was consenting to the matter being placed immediately on the uncontested divorce calendar. On the same day defendant signed the affidavit, June 2, 2008, the parties, both of whom were represented by counsel, executed a [*3]separation and property settlement agreement. The agreement states that “the parties agree that the Wife shall consent to an uncontested divorce judgment being entered against her under this Index Number based upon the grounds of constructive abandonment set forth in the first cause of action of the Verified Complaint.” As with defendant’s affidavit, no mention is made of children, either born or expected.
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 of this court signed the judgment dissolving the marriage between the parties by reason of the constructive abandonment of plaintiff by defendant. The judgment states that there are no known children of the marriage and none are expected.
On March 19, 2008, defendant gave birth to a baby boy, Ethan. 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 is no father listed on Ethan’s birth certificate.

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.