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.

Parental Interference, Parental Alienation and Available Sanctions

Parental interference and parental alienation are very common problems.  Unfortunately, the courts are reluctant to punish parties responsible for such conduct and rarely sanction parties for engaging in such behavior.  However, in a recent decision, Ted R. v. Lauren R., 2010 N.Y. Slip. Op. 50931(U) (Sup. Ct. Nassau Co. 2010), the court made a civil contempt finding based on the mother’s violation of the parties’ Stipulation of Settlement where the mother attempted to undermine the relationship between the children and the father and replace him with her new husband, manipulated the father’s parenting access, engaged in “unfettered vilification” of the father with the children, falsely reported sexual misconduct, and has caused the children to fear her tirades and punishment if they embrace the relationship they want to have with their father. The Court sentenced the mother to a period of incarceration of six weekends.

In addition, while noting that the father’s request during the contempt hearing for a change in custody has provided adequate notice to the mother, the Court amends the father’s application to conform to the evidence presented at the hearing and ordered a hearing regarding modification of custody.

The court went into great detail describing the mother’s behavior toward her ex-husband. The factual findings concerning the mother’s behavior as stated in the decision are extensive and in view of the mother’s behavior, I will quote them in order to demonstrate the mother’s conduct.  The mother’s behavior included the following:

“Plaintiff intentionally scheduled their child’s (N.’s) birthday party on a Sunday afternoon during defendant’s weekend visitation, and then refused to permit defendant to attend. She demanded that N. be returned home early, in order to “prepare” for her party, but D., the other child, was enjoying the time with her father and wished to remain with him until the party began. Plaintiff castigated N. for “daring” to invite her father to take a picture of her outside her party. According to the plaintiff, “this doesn’t work for me!” Plaintiff threatened to cancel N.’s party, and warned her that her sister, too, would be punished “big time” for wanting to spend time with her father. Plaintiff’s taped temper tantrum, offered into evidence, vividly detailed one instance of how D. and N. have been made to understand that enjoying time with their father will be met with their mother’s wrath and threat of punishment.”

Mother consistently lied about father’s custody rights, including to third parties.  Specifically:

“Plaintiff conceded that when she completed N.’s registration card for XXX., she wrote that defendant is “not authorized to take them. I have custody. Please call me.” At trial, she claimed to fear that defendant would retrieve the girls directly from school. However, she later admitted that defendant had never even attempted to pick them up at school. Her testimony at trial sharply contradicted her sworn affidavit dated January 23, 2008, in which she stated that “the defendant consistently attempts to pick up the girls unannounced from their schools and activities, which disrupts not only the girls, but those in charge of the aforementioned.” In her sworn affidavit, plaintiff claimed that she completed the registration card because defendant sought to attend the end of D.’s art class and then had the audacity to drive his daughter home. The art class “incident” occurred well after the registration card was completed by the plaintiff. Moreover, nothing in the parties’ agreement prohibits the defendant from visiting the children at extra-curricular events or from driving them to or from such events. In point of fact, there was no dispute that D.’s Friday art class in Huntington ended as defendant’s alternate weekend visitation commenced.”

“Plaintiff wrote to Dr. L.1 (then the XXX. principal) and Ms. T. (N.’s fifth grade teacher), demanding that they restrict their conversations with the defendant to N.’s academics, as plaintiff is “solely responsible for her academic progress and emotional well being. Notwithstanding the nature of their joint legal custody plaintiff insisted before me that, “I have custody, he has visitation.””

“The plaintiff made/completed an application for admission to XXX on behalf of N. in October, 2007. On the application, she checked the box “Mother has custody,” rather than the box directly below which says “Joint custody.” She identified her new husband, R. L., as N.’s “parent/guardian,” and she failed to mention the defendant. During cross examination, plaintiff insisted that she only omitted reference to the defendant for fear that his financial circumstances would adversely impact N.’s chances for acceptance. However, no financial information was requested anywhere on the application. Moreover, plaintiff acknowledged that none was required until after an applicant was invited to attend.”

“By applying to XXX without defendant’s knowledge – – but with N. completely involved in the process, plaintiff orchestrated the decision to be made, as well as alienating the child. Had the defendant not consented to N.’s attendance at XXX, after the fact, N. would be angry with him for purportedly interfering with the enrollment, even if defendant’s objections to a private school placement were sound. In no event was he consulted as to this educational decision.”

“When asked how she might handle things differently now, plaintiff did not indicate that she would first discuss the possibility of a private school with the defendant, as she is obligated to do pursuant to the Stipulation.”

“In a similar pattern of being advised “after the fact,” defendant testified that there were countless times when plaintiff deliberately scheduled theater tickets, family events and social activities for the girls during his visitation, and he was compelled to consent or risk disappointing the girls. These occurrences continued even during the time span of proceedings before me.”

Mother claimed that children didn’t want to see father, specifically:

“Plaintiff was forced to concede at trial that the defendant was prevented from enjoying his visitation rights after he returned with the girls from his niece’s Bat Mitzvah until this Court granted defendant’s emergency application to compel the plaintiff to allow the defendant to take D. and N. for the ski trip he had scheduled for his half of the Christmas recess. Plaintiff insisted that it was D. and N. who refused to see their father, because they were angry with the ‘choices” he had made on their behalf, including his objection to N. attending XXX. Defendant was made aware of the children’s position because they parroted their mother’s demands on several occasions. D. even read from a script during the brief dinners he was permitted. As plaintiff wrote in one e-mail when she was describing her role with respect to the children: “I am in charge here, not them. What I [sic] say goes. They may bring their shoes. You are responsible for the rest. End of story.””

“In vivid testimony, the defendant recalled how the plaintiff willfully prevented him from exercising his rights to visitation with the children from November 4, 2007 through December 21, 2007. I observed the plaintiff smirk in the courtroom as defendant emotionally related how he was deprived of spending Hanukkah with his children, and was relegated to lighting a menorah and watching his daughters open their grandparents’ presents in the back of his truck at the base of plaintiff’s driveway on a December evening.”

“The fact that the children were as angry as they were with the defendant in November and December, 2007, demonstrates, in my view, that efforts to alienate the children and their father were seemingly effective. The children demanded that defendant meet “their” demands before they would permit him to visit with them again. They demanded that defendant permit N. to attend F. A., that he withdraw his objection to their participation in therapy with their mother’s therapist, and that he pay for 75% of D.’s Bat Mitzvah but limit his invitations to a handful of guests and have no role in the planning of the event. Plaintiff’s contention that she had no involvement in these children’s “demands” was belied by the very fact that the children had intimate knowledge of their mother’s position on all of these issues. The children, in effect, were evolved into plaintiff’s sub-agents and negotiators, having specific details of the financial demands of the plaintiff, and information as to the marital agreement.”

“The mother alluded to the ambivalence of the children in seeing the defendant. But such abrogation to the children’s wishes, under these circumstances, was in violation of the agreement. It was wholly improper for the mother to adhere to the children’s wishes to forego visitation with their father (see, Matter of Hughes v. Wiegman, 150 AD2d 449).”

“Plaintiff half-heartedly testified that she wants the children to have a relationship with the defendant. Her view of the defendant’s role was a numbing, desired nominality, evident by her actions that were without any semblance of involvement by the defendant – – notwithstanding the clear joint custodial provisions. At critical points in the cross-examination, plaintiff was noticeably off balance – – hesitating and defensive – – with answers that dovetailed to either narcissism, or, a poor grasp of the affects of her conduct. The plaintiff was dispassionate, sullen, and passively resistant to the alienating efforts of the plaintiff. The continued litany of instances of alienating conduct, turned repression of the defendant’s joint custodial arrangement into farce. The endurance in recounting instance upon instance of alienating conduct herein, was as daunting as it was indefensible.”

Mother’s behavior toward father in front of the children included the following:

“Plaintiff relegated the defendant to waiting endlessly at the bottom of her long driveway. When defendant drove up her driveway on October 26, 2007, so that the children would not have to walk down with their heavy bags in a torrential rain, plaintiff ran down the driveway where she had left her car, drove up the driveway and blocked defendant’s vehicle. The children watched as the police listened to their mother angrily demand that their father be arrested and, when the police refused, heard their mother scream that she is a taxpayer and the police work for her. She frequently disparaged the defendant in the presence of the children, calling him a “deadbeat,” “loser,” “scumbag,” and “f——-g asshole.” On one particular occasion, while holding N. and D. in her arms, plaintiff said to the defendant, “We all hope you die from cancer.” Just this past summer, when defendant insisted that D. retrieve her clothes from plaintiff’s home in preparation for their visit to N. on her camp visiting day, plaintiff urged to defendant that “Judge Ross will not be around forever, d___.” Before the beginning of each of defendant’s vacations with the children, the plaintiff staged prolonged and tearful farewells at the base of the driveway, during which plaintiff assured the children that they will return to “their family soon,” and if “things get too bad, they can always tell Daddy to bring them home.””

Mother accused father of sexual abuse:

“The crescendo of the plaintiff’s conduct involved accusations of sexual abuse. Plaintiff falsely accused defendant of sexual misconduct in June, 2008, shortly after defendant moved to Huntington and the children’s friends were enjoying play dates at defendant’s home. Plaintiff testified that D. shared that she was uncomfortable when the defendant tickles her, and conceded that she knew there was nothing “sexual” involved. Undaunted by the lack of any genuine concern for D.’s safety, plaintiff pursued a campaign to report the defendant to Child Protective Services. To facilitate this, she spoke with W. M, the psychologist at the school D. attended. Plaintiff also “encouraged” D. to advise Dr. C. (the chidren’s pediatrician) that defendant inappropriately touched her – – but he saw no signs of abuse. Plaintiff also advised Dr. A., Ms. M., Dr. R. (the children’s prior psychologist) and family friends of the allegations and, ultimately, the Suffolk County Department of Social Services opened a file on June 3, 2008, and began an investigation.”

“According to the Case Narrative contained in the New York State Case Registry, a complaint was made that “On a regular basis, father inappropriately fondles 13 year old D.’s breasts. This makes D. feel very uncomfortable. Last Sunday, Father hit D. on the breast for unknown reason… ” When the caseworker and Suffolk County detectives interviewed D. on June 3, 2008, she reported only that her father tickles her on her neck and under her arms, and she categorically denied her father ever fondled her breasts. She admitted that her father was not attempting to make her uncomfortable, but that he still regards her to be a tomboy. The detectives closed their investigation.”

“Thereafter, and significantly, when the CPS caseworker met with plaintiff on August 19, 2008, plaintiff was quick to state that her ex-husband “did it again.” Plaintiff claimed that the defendant hugged D. too hard. According to the caseworker’s notes, the caseworker repeatedly cautioned the plaintiff not to bring the children into her disputes with the defendant. This warning was contained in CPS records.”

“Although unfounded child abuse reports are required to be sealed (see, Social Services Law §422[5]), such reports may be introduced into evidence,”by the subject of the report where such subject… is a plaintiff or petitioner in a civil action or proceeding alleging the false reporting of child abuse or maltreatment” (Social Services Law §422[5][b][1]). Allegations that defendant had injured the child were found to be baseless and, by making such allegations, plaintiff needlessly subjected the child to an investigation by Child Protective Services, placing her own interests above those of the child. This report was not made in “good faith” – – rather, the investigating agency warned the mother not to re-utilize the allegations and her children in her custodial litigation with the defendant.”

Mother’s behavior was not affected by pending contempt proceeding:

“The concern of a pending contempt proceeding did not affect the plaintiff’s conduct. For example, knowing that defendant had parenting access with D. on July 3, 2009, plaintiff invited D.’s close friend, C. C., to a country club for a fireworks display and advised D. of this invitation. She then instructed D. to tell her father she was invited to a friend’s party on that date. Another example occurred on June 13, 2009, when plaintiff quietly escorted D. from Alice Tulley Hall during the intermission, ignoring the instructions from the G. Y. Orchestra staff that everyone remain until the conclusion of the entire program. Plaintiff purported she was unaware that defendant attended this special program in Lincoln Center. Defendant, who was in attendance at the concert, was left waiting at the stage door with flowers for D. Plaintiff ignored his text messages questioning where his daughter was. The plaintiff, when confronted with the notion that she may have precipitously ushered her daughter away before her father was able to give her flowers, retorted to the Court that “it was not her responsibility to make plans for T.””

In view of the mother’s behavior described above, the court held:

“The evidence before me demonstrates a pattern of willful and calculated violations of the clear and express dictates of the parties’ Stipulation of Settlement, incorporated but not merged into their Judgment of Divorce. The extensive record is replete with instances of attempts to undermine the relationship between the children and their father and replace him with her new husband, manipulation of defendant’s parenting access, utter and unfettered vilification of the defendant to the children, false reporting of sexual misconduct without any semblance of “good faith,” and her imposition upon the children to fear her tirades and punishment if they embrace the relationship they want to have with their father. The unfortunate history here also reflects the plaintiff’s hiring and firing of three different counsel, expressed disdain towards the children’s attorney, and utter disregard for the authority of the Court.”

With respect to parental alienation, the court stated:

“Differing “alienation” theories promoted by many public advocacy groups, as well as psychological and legal communities, have differing scientific and empirical foundations. However, interference with the non-custodial parent’s relationship with a child has always been considered in the context of a “parent’s ability to encourage the relationship between the non-custodial parent and a child,” a factor to be considered by the Court in custody and visitation/parental access determinations. See, Eschbach v. Eschbach, supra. Our Appellate Courts recognize such factor, as they have determined that the “interference with the non-custodial parent and child’s relationship is an act so inconsistent with the best interests of a child, as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent.”

“Where, as in the instant case, there is a finding of a willful violation of a court order demonstrated by a deliberate interference with a non-custodial parent’s right to visitation/parental access, the IAS Court, as a general rule, must schedule an evidentiary hearing before making any modification of custody.”

Judge Ross found Lauren R. in civil contempt of court and ordered her to spend every other weekend in the Nassau County Correctional Facility during June, July and August.

Judge Ross acknowleged that “An imposition of sentence upon a finding of contempt should contain a language permitting the contemnor an opportunity to purge.” However, in this case, a jail sentence was the only option available because it is no longer within the power of the plaintiff (mother) to purge since the violation was of a past court order. Furthermore, remedial intervention through counseling and parental training during the course of the trial was unsuccesful and if re-utilized, the “Court cannot release from imprisonment upon future compliance.”

The matter of approximately $165,000 in attorney fees will be the subject of another hearing.

What can we learn from this case? We can learn that it took years of inappropriate conduct, $165,000 in attorneys fees, and unquantifiable amount of damage to the relationship between the father and his daughter, before the court would punish this type of behavior. In view of the mother’s conduct, 6 weeks of weekends in jail seems inadequate. I do not know whether the court will change the residence of the children, however, it is clear that the joint custodial arrangement did not work in this situation. My guess would be that the court would likely to change custody to sole custody and grant the residence of the children to the father. The court is also likely to impose tight restrictions on the mother’s access to the children and her conduct toward the children and the father.

Divorce and Reformation of Settlement Agreement

I have previously written about vacating settlement agreements on the grounds of mutual mistake.  Here is a case where the court actually reformed the parties’ settlement agreement on the grounds of mutual mistake.

In Banker v. Banker, 53 A.D.3d 1105 (3rd Dept. 2008),  the parties’ oral stipulation of settlement, which was incorporated but not merged into their 2005 judgment of divorce, provided that the parties would subdivide a parcel of property located in Delaware County.  However, despite that provision, after the judgment of divorce was entered, the defendant refused to do so.  In response to a motion by plaintiff to enforce the stipulation, Supreme Court, in February 2006, ordered defendant to obtain subdivision approval from the Town.  The Planning Board denied defendant’s subsequent subdivision application after discovering that the property was encumbered by a restrictive covenant against further subdivision.  In March 2006, defendant moved to reargue and/or renew February 2006 order, and requested a hearing to determine equitable distribution.

Supreme Court reserved decision on all pending matters pertaining to the parties until an appraisal of the property was completed.  Because the parties could not agree on an appraiser, the court appointed one and directed the parties, once the appraisal was complete, to settle the matter in a private auction or buyout.  The appraiser completed the appraisal in June 2006.  By letter dated October 4, 2006, defendant requested the opportunity to offer further proof of value.  Plaintiff made a similar request and explained that the parties had not been able to settle the matter or agree on a private auction.

Plaintiff responded with a motion seeking that the parties’ interests in the property be declared in conformance with the terms set forth in the stipulation and the values established in the appraisal, as well as an order allowing her to buy out defendant’s share of the property.  Defendant opposed the motion, arguing that the appraisal should not be adopted without an opportunity by the parties to cross-examine the appraiser and submit other evidence of valuation.  Supreme Court ordered a hearing to permit the parties to cross-examine the appraiser, but made it clear that no other testimony or evidence of valuation would be permitted.

Following the hearing, at which Supreme Court again denied defendant’s request to submit further evidence, the court determined the interests of the parties in the property to be 83% for plaintiff and 17% for defendant.  The court, fixed the parties’ interests as indicated above, appointed a receiver, and ordered the   public sale of the property.  Defendant appealed.  The Appellate Division rejected defendant’s argument that Supreme Court exceeded its authority by reforming the parties’ stipulation of settlement.  Where, as here, a mutual mistake rendered a portion of the parties’ settlement agreement impossible or impracticable, “the relevant settlement provision was properly set aside”.  No dispute existed that the parties’ agreement to physically divide the property could not occur given the restrictive covenant; and even defendant was not attempting to have the parties’ stipulation enforced.  Thus, after giving the parties ample opportunity to reach a new agreement,  the trial court was correct to move forward by appointing an appraiser so that an equitable distribution of the property, in as close accordance as possible with the intent of the parties as expressed in their settlement, could be achieved.

The Appellate Division noted that to achieve reformation or recission of the stipulation of settlement, one of the parties should have commenced a plenary action, rather than proceeding by motion but, in the context of this matter, concluded the defect to be nonfatal.  However, the lower court erred in resolving this matter without a full hearing permitting the parties to offer proof of valuation.  The court is authorized to appoint an independent appraiser in a matrimonial action but, unless the parties have stipulated otherwise, the court must afford the parties the opportunity to review the appraisal, cross-examine the appraiser and offer additional evidence on valuation.  Although the record contained evidence that the parties consented to Supreme Court’s appointment of the appraiser, it did not suggest that the parties agreed to be bound by the resulting appraisal.

This is an example of a situation where the mutual mistake allowed the court to reform the parties’ settlement agreement.  While those circumstances tend to be limited, the lawyers in Banker recognized that since the property could not be subdivided, it had to be sold or one of the parties would buy out the other party’s interest.  The question of valuation was secondary to the remedy chosen by the court as a result of reformation of the agreement.  At the same time, it is rather surprising that neither divorce attorney was aware of the covenant, since both parties, presumably, had access to the real property records and the property’s abstract of title.

Child Support, Emancipation and Child’s Economic Independence

One of the most common questions I hear as a part of my family law practice is a question of when a child become emancipated for child support purposes.  My usual response is that emancipation of minors depends on a variety of circumstances.  The Child Support Standards Act’s provisions dealing with emancipation hold that the child becomes emancipated upon reaching the age of 21, joining military, or getting married. In addition, the child may become constructively emancipated by willingly abandons the parent and withdrawing from parental supervision and control. In addition, the child may become emancipated, assuming the child is of employable age, by becoming economically independent of the parents. If emancipation is sought for a child who is of employable age, and is working, I usually tell my client that the child has to work between 35 and 40 hours per week and generate sufficient income to be economically independent of the parents.  In some situations, however, even a full-time job may not be enough.

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.

Determining Validity of Separation Agreements

I have previously written about separation agreements and their validity, here, here and here.  Periodically, I see separation agreements that are extremely one-sided or I am asked to draft a separation agreement that is very one-sided.  In those situations a divorce lawyer is usually asked if the agreement can be set aside.  My usual response is that the court’s determination whether to set aside the agreement depends on a variety of factors.

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.

Downward Modification of Child Support

I have mentioned last week that I have been seeing a significant increase in Family Court and Supreme Court filings seeking downward modification of child support. Most of these filings were brought on by a non-custodial parent after a loss of employment. In today’s economy, a loss of employment is not uncommon, so the courts are dealing with a significant rise in downward modification petitions.

There are two different situations that may arise when a non-custodial parent seeks downward modification of child support. First, if the child support was established by a stipulation or an agreement, that parent must establish that the loss of employment represents an unreasonable and unanticipated change in circumstances since the time of the stipulation to justify a modification, and that the alleged changes in that party’s financial position was not of his/her own making. See Connolly v. Connolly, 39 AD3d 643 (2nd Dept. 2007); Terjesen v. Terjesen, 29 A.D.3d 705 (2nd Dept. 2007). Additionally the party who lost employment will also have to establish that he/she used his/her best efforts to obtain employment commensurate with his/her qualifications and experience. Cox v. Cox, 20 A.D.3d 527 (2nd Dept. 2005). Further, allegations of a reduction in actual income are insufficient to support an application for a downward modification, as a matter of law, where contractual support obligations are based on a payor’s ability to earn rather than on his or her actual income at the time of the execution of such stipulation or agreement. Ellenbogen v. Ellenbogen, 6 A.D.3d 1026 (3rd Dept. 2004).

If the child support order was set by the court after a hearing, the parent seeking the modification of a child support obligation has the burden of establishing that there has been a substantial and unforeseen change in circumstances warranting a change in the support obligation. See Ketchum v. Crawford, 1 A.D.3d 359 (2nd Dept. 2003); Cadwell v. Cadwell, 294 AD2d 434 (2nd Dept. 2002). This standard is much easier to meet than the one applicable to the situations where child support was set by a stipulation or an agreement.

Depending on the circumstances, a downward modification case will fall in one of the two situations discussed above. Before commencing any proceeding, discuss your situation with an experienced New York family law lawyer to make sure that the proceedings are properly commenced and that you can meet the applicable legal standard.