New York Family Law Blog

Seven insurance companies are the plaintiffs in this case and they are appealing a decision that was made in favor of the defendant, Dreyfus Service Corporation granting a summary judgment dismissing the case. A New York Family Lawyer said that throughout the decade of the 90s, the insurance companies were looted by a fraud scheme that was perpetrated by Martin Frankel. The insurance companies (the receivers) in the original case at hand were seeking to impose civil RICO liability and tort on Dreyfus Service Corporation as they were the investment company that was used by Frankel to funnel money through the funds of the insurance companies.

The district court heard the case and reviewed the federal and New York laws in the manner granted a summary judgment that was in favor of the defendant for each claim made by the insurance companies. For the court came to the conclusion that there were 8 accounts where no duty came to the seven insurance companies and the receivers failed to exhibit causation for the other 5 accounts regarding the tort claims. The court decided that there was no way to find anyone at Dreyfus Service Corporation who deliberately ignored the money laundering activities of Frankel in regard to the RICO claim.

A Nassau County Family Lawyer said the plaintiffs are appealing this initial verdict of a summary judgment in favor of the defendant.

Case Background

From the years 1981 through 1991, Frankel solicited $11 million in funds for an investment project that he named Creative Partners. He used $5 million of this money for his own personal use. To replenish this money he started looking for banks for purchasing and looting. When this scheme failed, he began purchasing and looting insurance companies. These fraudulent activities continued throughout the nineties with Frankel recruiting more individuals to help him.

In 1994, Dreyfus Service Corporation, which is a broker/dealer company that is registered, unknowingly became a part of Frankel’s schemes. Frankel used the company to transfer funds from the insurance companies to his personal accounts that were set up in Switzerland.

The activities of Frankel were finally realized in 1999 when the insurance regulators become conscious that they were managing looted insurers. Each of the companies were placed in liquidation and the Receivers brought litigation against over 70 parties. A Nassau County Child Support Lawyer said the individual claims were joined in the current action and DSC was added in 2001. Almost all of the other defendants entered bankruptcy settled, or defaulted. After some time, DSC filed their motion for summary judgment. The receivers filed two different motions for a partial summary judgment.

Case Review and Verdict

The district court decided that under the laws of New York, Dreyfus Service Corporation did not owe the insurance companies duty of protection from the looting done by Frankel. It was found that the company had no idea that Frankel was conducting fraudulent activities and there is no proof that anyone from the company ignored facts that could have led to this discovery.

Our finding is in favor of the defendant, Dreyfus Service Corporation. The receivers have not provided any information in regards to the accounts that prove their case. For this reason, the district courts initial ruling for a summary judgment that is in favor of Dreyfus Service Corporation is upheld.

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A couple was married in Albania. The couple had five children and all of the children are free from restraint. The children are ages are thirteen, eight, seven, five and four. A New York Family Lawyer said the four youngest children reside with the mother at a shelter in a confidential address, while the eldest child resides with the father at the marital residence, a rented apartment in New York. The couple is both in good health. An Albanian interpreter was provided for the wife throughout the litigation since she does not speak English. Although the husband testified in English during the child custody and visitation trial, he requested the use of an interpreter for the financial trial. The husband's former attorney was relieved as counsel for the husband shortly after the child custody and visitation decision was rendered. The counsel was substituted.

During the marriage, the husband worked in the construction industry which enabled him to financially support the family and send funds to Albania. A Nassau County Family Lawyer said the wife is as a stay-at-home mother as established during the child custody trial. The couple and their children traveled to Albania. The husband returned to the United States after two weeks, however, the wife and children were left in Albania at the parents’ house of the husband for two years. The wife and youngest child left the husband's parents' home and went to live with the wife's family in a nearby village over the objections of the husband and his family while the four eldest children remained with the husband's parents. Thereafter, the marriage fractured and the husband returned to Albania to bring the four eldest children back to the United States. The wife and youngest child returned to the United States and moved directly into a domestic violence shelter, where the wife and the four youngest children resided. The events of the couple’s life in Albania and their return to New York are the subject of the court's extensive child custody and visitation decision.

The husband testified to grounds for divorce. He testified that his wife ceased having sexual relations with him. The abandonment took place at the marital residence in New York. The husband further testified that he has requested that the wife resume sexual relations with him. He testified that the wife had no cause or justification for her actions and that there are no physical impairments to him having sexual relations with the wife. He did not condone or consent to her actions. A Nassau County Child Support Lawyer said the parties were married in a civil ceremony therefore there is no barrier to remarry. The wife remained silent, neither admitting nor denying the husband's testimony. The court reserved its judgment pending the resolution of the supplementary issues.

Records revealed that in accordance to the decision after trial, the wife was awarded custody of the five children. The court temporarily stayed the transfer of the eldest child. Presently, the court is hearing multiple applications for modification by each of the couple on the issues.
The husband's employment history prior to the marriage is not stated in the record. During the marriage, the parties' sole source of income was the husband's employment in the construction industry. The husband filed tax returns as married filing separately for the years 2006 and 2007. At the time the trial testimony concluded, he had yet to file a tax return for the year 2008. However, it is undisputed that the husband used funds from his business to pay for many, if not all, family and personal expenses during the marriage.

In 2002, he incorporated his construction company. The husband claims that he held only a 25% ownership interest in the corporation from its formation, for which he contributed $10,000.00 of initial capital. He further testified that his friend and business partner held a 75% ownership interest, for which he contributed $40,000.00. The wife claims that the husband has always been the sole owner of the corporation and that he made an initial capital investment of $40,000.00 to the corporation.

The husband also claims that during the pendency of the action, he forfeited his 25% equity interest in the corporation to his business partner as a result of his mounting indebtedness to the company attributable to his personal use of corporate funds. The husband's updated affidavit of net worth states that the husband is unemployed since October 2008. In his testimony, the husband stated that he has been collecting unemployment benefits each week since January 1, 2009.

The wife has no means of income. Throughout the duration of the marriage, she has been a stay at home mother. She and the four younger children are residents at a shelter with a confidential address. The wife refutes the husband's testimony regarding the corporation company. She avers that the husband is, and has always been, the sole owner of the business and he continues to own and operate it. The wife contends that the husband is under reporting his income and ownership interest in his business.

The husband is 44 years of age and the wife is 37 years of age. The wife seeks maintenance in the amount of $75.00 per week for a period of at least nine years. The husband contends that the wife is not entitled to any maintenance award. However, the husband requests that any maintenance awarded terminate after 12 months or sooner if allowable under the Domestic Relations Law.

The parties are married for over 17 years, and the wife was and continues to be a stay-at-home parent. She has no work experience outside of the home. Her formal education is limited to a high school diploma attained in Albania. She speaks Albanian and very limited English. The husband's education is similarly limited to eight years of primary school education in Albania. However, the husband has substantial work experience in the construction industry, as a laborer, supervisor and owner. Additionally, the husband has substantial business experience from the formation, ownership, and operation of his construction business from 2002 through at least 2008. During the marriage, the husband was the sole wage earner and managed all of the family's financial affairs.

As a requirement of receiving the public assistance benefits, the wife is also engaging in English as a Second Language classes and workfare assignments while serving as the primary care-giver to the four youngest of the five marital children. Additionally, the wife asks the court to consider its finding in the child custody trial decision that the wife was the victim of physical abuse by the husband during the marriage in its determination of maintenance under Domestic Relations Law.

The husband avers that the factors set forth in Domestic Relations Law do not support a maintenance award. The husband contends that the wife should be able to earn based on minimum wage, an amount which husband claims is sufficient to meet the wife's reasonable needs and exceeds her share of the husband's purported version of his annual income. The husband also contends that they cohabitated for only four of the 12 years of marriage. The husband further contends that the wife made no contribution to his career by caring for the marital home and children while he worked in the construction industry because his business office was in the marital home, enabling him to be with the family most of the time as a work from home dad.

The wife requests an award of child support for the unemancipated children calculated in accordance to the Child Support Standard Guidelines. The husband requests that the court consider that the eldest child is currently living with the husband and that the husband has lost his ownership interest in corporation, as well as the many subsidies of his living expenses which the company previously paid. Neither party addressed the issue of retroactive support. However, the husband conceded at trial that he has made no child support payments since February 1, 2009.

Domestic Relations Law defines marital property as all property acquired by either or both spouses during the marriage and before the commencement of a matrimonial action, regardless of the form in which title is held. Separate property, on the other hand, is defined, in part, as property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse. It must also be recognized, however, that the term marital property is to be broadly construed, while the phrase separate property is to be narrowly construed. Separate property, an exception to marital property, is to be narrowly construed. Hence, the law favors the inclusion of property within the marital estate and, accordingly, the party seeking to establish that a particular item is indeed separate property bears the burden of proof. When a party commingles separate funds with marital funds and assets, it is that party’s burden to trace the source of the funds with sufficient particularity to rebut the presumption that they were marital property. Furthermore, the Court of Appeals has recently ruled that during the life of any marriage, many payments are made, whether of debts old or new, or simply current expenses. If courts were to consider financial activities that occur and end during the course of a marriage, the result would be parties to a marriage seeking review of every debit and credit incurred. As a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. The parties' choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end.

Judgment of divorce is granted to the husband on the grounds of constructive abandonment. Child custody is awarded to the mother in accordance with the decision of the court, and the interlocutory judgment, subject to the modification applications that are subject to the hearing presently before the court. Equitable distribution shall be effectuated and the payment of maintenance and child support as is directed in the trial decision. The Family Court shall have concurrent jurisdiction with regard to maintenance, child support, child custody and visitation. The children are recipients of Child Health Plus and there was no testimony as to unreimbursed expenses. The wife shall have the right to continue to use her maiden name if she so chooses.
The court reiterates that in accordance to the Domestic Relations Law, both parties are on notice that once the judgment is signed, a party may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan. In the event that either party maintains health insurance for the benefit of their spouse, the other party may be entitled to health insurance, or otherwise may be required to secure their own health insurance.
Although the husband's testimony reflects monies taken from the corporation for his personal use and reiterates his indebtedness to the corporation, he fails to substantiate the existence of the loans with any documents, checks, notes or any other writings. The court finds that the husband's testimony is not credible. Although the court finds that the manner in which the wife herein was treated throughout the marriage is appalling, the court finds that the facts and circumstances do not rise to the level of severe and egregious conduct to warrant this court to invoke its equitable power in accordance with Domestic Relations Law. The facts of the case do not rise to the level of a truly exceptional situation, due to outrageous or conscience-shocking conduct on the part of one spouse that will require the court to consider whether to adjust the equitable distribution of the assets.

In consideration of the wife's contributions and efforts for the family all the facts recited, the court awards the wife 33.33% as her equitable share of the husband's share of the value of the corporation which is $50,000.00 as a distributive award. The monies in the couple’s bank accounts at the time of the commencement of the action shall be divided equally.

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The Facts:
A “husband” (also referred to as decedent or deceased) and his wife were married for forty years at the time of his death. They had four children together, and she had two from a previous marriage. A New York Family Lawyer the husband was Jewish and his wife was not. They celebrated some religious holidays with the family, but they did not belong to a temple, nor did the children regularly attend services. The husband never had a bar mitzvah ceremony. The husband’s family had a family plot in Mount Hebron Cemetery, a Jewish cemetery in New York, purchased by the husband’s grandfather. All of the husband’s family and their spouses were buried there. The husband and his wife lived in New York until 1998 when they moved to Florida.

After relocating to Florida, the husband began to have health problems. Around 1999, the husband told his wife that he wanted to be buried in his family plot in Mount Hebron with her. However, in May of 2001, when the husband went into the hospital, he and his wife first discussed being buried together in Florida.

The husband’s brother and sister were close to him but they did not have a good relationship with his wife. A Nassau County Family Lawyer said as a result, the husband would visit with them in Arizona and New York after he moved to Florida. In February 2002, the brother took the husband to a doctor in Arizona who diagnosed him with dementia and Parkinson's disease. Later that year, while visiting his sister in New York, the husband executed a durable power-of-attorney, naming his brother as his agent. When the husband returned to Florida, his wife would not allow the brother or the sister to see the husband, necessitating them to obtain a court order permitting visits.

In May of 2003, the wife filed a petition to determine the husband’s incapacity, alleging that he suffered from various diseases, including dementia and Alzheimer's.

A subsequent petition for appointment of a guardian was filed. In the course of those proceedings, the husband met with the attorney ad litem appointed to represent him. A Nassau Child Support Lawyer said the husband told the attorney that he did not want a guardian but expressed no preference as to who should be appointed if he were declared incompetent. He also told the attorney that he was aware of the rift between his siblings and his wife and felt caught in the middle. A physician who examined the husband testified that during the examination the husband expressed the sentiment that he wished to be buried in Florida with his wife.

The brother of the husband also filed a petition to be appointed as the guardian, based upon the durable power-of-attorney. However, while both petitions were pending, the husband died.
Shortly before the husband’s death, the brother produced a will that the husband had apparently executed in 1992 in New York in which he directed that he be buried in a traditional Jewish burial in their family plot. In that will, he appointed his brother as executor.

The issue:
Where should the burial take place? Is the decedent’s testamentary burial instructions binding upon the court or may be disregarded when the decedent has made a subsequent oral statement of desire as to his final resting arrangements?

The Court’s Ruling:
Under Jewish burial customs, a rabbi’s testimony has been presented and explained that: a) Cremation is prohibited under Jewish law and would not be considered a traditional Jewish burial; b) Jewish tradition is that husbands and wives are buried together as long as the wife is Jewish; c) Some Jewish cemeteries allow a non-Jew to be buried but not in the confined Jewish cemetery area; and d) More recent traditions allow Jews who are married to non-Jewish spouses to be buried in the same cemetery but not in the exclusive restricted area.
Moreover, the provisions in a will regarding burial instructions are not conclusive of a testator's intent and the trial court may take evidence that the testator changed his or her mind regarding disposition of his body.

The common law recognized no property right in the body of a deceased. In the absence of a testamentary disposition, the spouse of the deceased or the next of kin has the right to the possession of the body for burial or other lawful disposition.

Where the decedent or testator has expressed his exclusive intention through the will, the testator's wishes should be honored. When the executor of the will refused to follow that direction for reasons of conscience, the testamentary language is controlling, and the executor is required to fulfill the testator's directives. However, such is not the case when the testator indicated a change of mind as to the disposition of his body subsequent to the execution of the will.

Looking to decisions of other states, whether to enforce the will provisions regarding disposition of the testator's body depends upon the circumstances of the case.

Having recognized certain property rights in dead bodies, many courts have announced the rule that a person has the right to dispose of his own body by will. However, courts, while paying lip service to the doctrine of testamentary disposal, have in certain instances permitted the wishes of the decedent's spouse or next of kin to prevail over those of the testator. In other instances, courts have accepted and acted upon evidence that indicated that the decedent's wishes concerning the disposition of his body had changed since the execution of his will.

The disposition of a body is not a property right, but a mere personal right to the testator. Directions for disposition are not testamentary in character to a degree which would require revocation of the direction to be accomplished in the manner as prescribed by statute for the revocation of wills. A dead body is not properly viewable as property or assets. Thus, changes in the testator's intent could be considered:

It is the right of a particular decedent, from time to time in his discretion, to vary the directions respecting disposal of his remains, with the result that the inquiry of the court must be directed to the ascertainment of the latest expression of wish by the testator on the subject.
Here, however, because of the express provision of the will the court demanded a clear and convincing proof that a different disposition was the desire of the deceased.

In Florida, as in New York, a will is construed to pass all property that the testator owns at death. The testator's body is not considered property. Therefore, just as in New York, a directive in a will regarding the disposition of a body does not have the same force and effect as do provisions directing the disposition of property. Therefore, the court concludes that a testamentary disposition is not conclusive of the decedent's intent if it can be shown by clear and convincing evidence that he intended another disposition for his body.

The truth of the matter is, one might live in several states during a lifetime. A provision made in a will that is not revisited for many years may not reflect the intent of the testator as to the disposition of his or her remains. A direction for the disposition of one's body should not be conclusive when contrary and convincing oral or written evidence of a change in intent is present.

The trial court heard the evidence and weighed its credibility. It is not the function of an appellate court to substitute its judgment for that of the trial court by reevaluating the evidence presented. The trial court was aware of the heavier burden to disregard an express term of the will. Even where the standard that must be met is a clear and convincing evidence standard, The herein court’s task on review is not to conduct a new trial proceeding, reweigh the testimony and evidence given at the trial court, or substitute our judgment for that of the trier of fact. A trial court's determination will be upheld if it is supported by competent, substantial evidence.

Accordingly, the burial disposition in the will is refused; the deceased shall be buried in Florida where his wife is.

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Anna O'Connor is the respondent and James G. Curcio is the appellant in this case.

The father is appealing to recover child support payments.

The issue became whether or not child support payments that are due can be waived because of an order of judgment. As long as the obligation to make those payments hasn't occurred, they can be waived.

Facts

In 1988, the two parties were divorced. The settlement resulted in the child living with the mother while the father paid monthly child support fees of $400. Both parties signed and acknowledged the settlement, which means that legally it is enforceable. Part of the terms of the stipulation was that it could not be altered unless both agreed to it in the same manner that the original stipulation was filed. This was followed up on in 1992 when the two agreed in court to move the child support payments to $270 twice a month.

In 1995, a New York Custody Lawyer said the agreement changed again when a written document stated that the daughter would live with the father who would assume all costs for her care, including medical costs. However, it was also provided that if she went back to her mother’s that the previous payments would start again. From February 1995 to April 1999 she stayed with her father for a period of 42 months. The rest of those months were spent with her mother, during which the father paid child support. The mother then filed the motion in 1999 to recover the $540 she claimed was owed to her for that period.

The hearing examiner granted the mothers request because the written document from 1995 was not valid under the terms of the initial agreement. Advisement of the terms of the CSSA would have been required under such an agreement, which did not take place. Her contention is also that because that agreement was never acknowledged in the matter of the previous documents that it is not binding.

In the event that arrears accumulate on child support payments, they cannot be waived at a later date. The law is very clear about ensuring that arrears must be paid to avoid any retroactive alteration of the amounts owed by a parent paying child support. This is to ensure that someone is never rewarded for failing to meet their financial child support obligations.

However, the failure to demand payment in a situation like this is very important. Silence on the issue does not count as a protest that payment is not being met. A Nassau County Family Lawyer said it is also worth noting that the Court of Appeals noted that when an agreement is reached that affects future child support payments that arrears do not accrue. On the other side of the issue however, simply transferring custody of children is not enough to immediately waive the right to child support payments.

It is possible for a couple to come to an agreement that waives the right to future child support payments however. When the mother in this case entered into an agreement that outlined that child support would not be paid during the months when the child lived with the father, essentially she was opting out of the right to receive those payments during the months ahead. Her acknowledgment that the child did spend time living with the father confirms that the document applies.

Because of this, the agreement was valid despite her protests. Therefore, no arrears accumulated based on missed child support payments by the father.

Ruling

The previous order to pay the owing amount of child support is reversed. A Queens Family Lawyer said the branch of the motion that sought recovery of those fees is also denied.

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In this case, Thomas B. is the respondent and Lydia D. is the appellant.

History

Two parents tried to come to a written agreement where child support payments would be terminated because the child being supported had obtained a full time job. However, economic independence of a child is not enough reason to discontinue required child support payments.

Originally, the father in this case was required to pay child support until the child reached 21 or became emancipated as defined by full time employment that does not occur only during a break from education, such as might be obtained by a student during the summer.

In 2006 a motion was brought forward by the mother of the child to enforce payment of the child support. A New York Custody Lawyer said this lead to the petition for reduced payments. He claims that the child is emancipated and that his child support payments should be refunded retroactively to the date of the emancipation.

Emancipation

In order to resolve this action, the court needed to determine both whether or not the child was emancipated and if so, when that occurred. The petitioner requested a summary judgement based on the employment of the child at a music store in 2005. The respondent however, claimed that during this time the child was in a halfway house receiving treatment for substance abuse. The employment was a condition of the treatment and that he was still receiving financial support from his mother to cover living and medical expenses.

In 2005, the petitioner’s motion was granted when the Support Magistrate found that the job qualified as an emancipation event. A refund was ordered for child support paid after August 2005, and legal expenses were also awarded to him. The magistrate said that being compensated for work performed 35 hours a week qualifies as full time work.

The court reinstated the motion because the intent of what emancipation was supposed to initially mean to the two parties was not adequately considered. Upon further consideration, the Magistrate found that the child was working full time, and that the intent when discussing emancipation originally did not affect the outcome of the case. A Nassau County Family Lawyer said he also found that from January 2006 to September 2007 when the child was unemployed, support would have been required except that the earlier emancipation event had cancelled the terms of the previous agreement outright. The Magistrate again confirmed the need for a refund and for the respondent's need to pay for the plaintiff's legal fees.

A further objection resulted in the court finding that the Magistrate made a mistake when judging that the entire agreement was cancelled due to a period of emancipation. The Court felt that from 2006 to September 2007, support was owed. A Queens Family Lawyer said that as a result, the petitioner was ordered to pay $3978.18.

Essentially, the law requires that parents provide for their children until they reach the age of 21. Emancipation occurs when a person works full time, enlists in the army, gets married or attains any other type of economic independence.

The keystone of emancipation is financial independence, and it can be debated whether the child in question every truly had this. He was required to have a job by his halfway house program, and testimony showed that his mother was financially supporting him throughout that period. His full time job did not earn him enough money given his situation to earn financial independence, which leads to the conclusion that he was not properly emancipated.

Rulings

Section 15.06 of the stipulation provides guidance for the responsibility of the legal fees. It states that the party to challenge the ruling or any portion of it would be responsible for the legal costs of both parties going forward. As a result, the respondent will have a later hearing to determine the amount of legal fees owed.

The original order of the Family Court was reversed. A new hearing was set to determine the total amount of payments that were in arrears based on the assumption that the child was never properly emancipated.

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Maureen K. is the petitioner in this case and James H. is the respondent.

History

In 1995, a motion was filed that aimed to increase the child support payments made by Mr. H from $45 to $106 weekly. Mr. H objected to this order, and a Hearing Examiner was assigned to the issue.

Mr. H's objections were sustained and the Hearing Examiner would not sign the proposed order. Now, the CSEU has filed an objection to that decision. For the reasons that will be explained, the objections were subsequently denied.

Facts

A New York Criminal Lawyer said that in March of 1983, the Monroe Family Court entered an order between the respondent and the county's department of Social Services. Mr. H agreed to pay $25 each week for child support for an unborn child. His employee health benefits would also be extended to cover the child, and the payments themselves would be made directly to the Monroe County Child Support Enforcement Unit.

A modification to the original arrangement was filed in 1989. This increased the payments to $45 each week. Mr. H was earning $31608 at this time. In 1991 another motion was filed to increase child support payments, but this petition was dismissed. In 1995, based on a request by the child's mother, CSEU began a review of the case. During this time, the gross income of Mr. H was revealed to be $32167 in 1994. The review resulted in a new assessment being made of $106 per week being owed for support.

At the hearing in 1995, evidence was presented to illustrate the financial situation of both Mr. H and the other of the child. Mr. H's income statements verified the information obtained by the review committee. The mother of his child had tax forms showing that in 1994 she earned $14619.94 and $9398.81 in 1995.

CSEU felt that this information validated their work and that the adjusted fee should be paid. However, the respondent felt that CSEU had not paid attention to all the factors at play, even violating their own regulations by doing so. A Nassau County Criminal Lawyer said he claimed that reasons for varying the amount assessed under the CSSA would apply to him, and that he should not be required to pay for the entirety of uninsured medical expenses. CSEU filed an objection, but does note that the correct amount assessed should have been $97.

Findings

According to the Family Court Act CSEU can propose an increase in payments when the child's health care needs aren't being met, or when there is a larger than 10% shift from the last support order.

However, the Monroe County CSEU failed to follow two key regulations when performing their assessment. More than 3/4s of the medical expenses not covered by insurance should not have been allocated to the respondent. Secondly, the CSSA formula including adjusting the calculations based on the mother's income was not performed.

When the correct figures are plugged into the formula, Mr. H's owed amount is actually $90.98.

Family Court has very tightly prescribed jurisdictional limits. There is also very little guidance as to how a hearing growing from an objection to an adjustment would proceed, or how much authority the court could have in processing such a case.

The court also does not have the power to properly review a case when it is deemed that an error of some kind has been made. Instead, a Queens Criminal Lawyer said, the system is set up so that if the court denies the order, then the CSEU needs to re-review the case and make adjustments or reassessments where necessary.

Ruling

The initial ruling by the Hearing Examiner is confirmed. CSEU was at error so its objections are also denied.

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In this case, Ronald A. Usenza and Maura G. Gannon were both respondents and petitioners, while Maura G. Gannon was named only as a respondent.

The father objected to the Findings of Fact and order which occurred after a reversal and remand was issued by the Appellate Division. Now, the Support Magistrate must once again take up the issue and make a ruling on the child support issues based only on information presented in the original petitions from the year 2000, as everything submitted after that point is invalid and must not be taken into account.

History

Soon after their daughters were born in 1998, the two parents separated. In 2000, petitions for child support were filed. By 2001, these were resolved with stipulations arranged by the lawyers. In 2005, a modification to the agreement was made. In July, a Support Magistrate amended an order based on a technical error, but not objection was made to this correction. Another modification petition was filed in 2006, when the objection was raised that the required CSSA information had not been disclosed. A New York Custody Lawyer said this was dismissed and upheld, but the father then appealed the decision. This resulted in the reversal of the decision because disclosure requirements had not been met.

It is required that all agreements of this type include the parties being informed of the CSSA, and how much compensation would be awarded under it. Because the parties were not properly informed of this, it renders all the decisions made after this failure unenforceable.

Discussion

The matter came back to the Court based on an objection that the May 2001 order was also invalid because of CSSA disclosure problems. He was permitted to challenge the validity of that older order. No disclosures were ever recorded as part of the submitted stipulation in 2001. The 2001 proceeding was found in many ways to be even less compliant than the later ruling as far as CSSA disclosures apply. For instance, a Queens Family Lawyer said that when it is stated the CSSA is being deviated from, no reason is given for why that deviation is approved by the court.

The parents should be advised, by the terms of the act, what the correct amount of child support is. This is determined by combining the parental income and assessing a percentage of it based on how many children are being supported. Typically this only reaches up to the first $80,000 of income earned by the parents, but the support magistrate can assess income above that threshold based on special factors. The costs of child care, education and health care are then figured into the calculation. Finally, parents have the right to be told what that basic amount is, and if and why the amount being paid is different from it. Parents can choose to deviate from the formula by agreement as long as they give a reason, but if the courts deviate from it, they must carefully articulate the process used to arrive at the new figure.

It is important to note that objections based on these catechism failures can be raised on appeal or with a new appeal. Basically, if an order is defective it can be attacked at any point in time during the proceedings.

Results

A Nassau County Family Lawyer said that as of this ruling, there is no order in place which is currently valid. The Support Magistrate must schedule a new hearing and return to the original petitions which were entered in the year 2000. Everything that was entered after the year 2000 was dismissed because of the failure to comply with all of the disclosure requirements that apply to the CSSA.

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In this case, Mildred Evans is the petitioner and Semone Grossman is the respondent.

History

The petitioner is claims a violation of the terms of an agreement arrived at in 1996 in regards to Christina, the daughter of the two parties in the case. In the initial order, the respondent was ordered to provide $48000 in child support payments in the years leading up to the daughter's college education, and $53000 during the years she was in college. In 2002, the violation petition was filed by the petitioner.

Christina removed herself from her studies at Roger Williams University because of the discovery of a bald patch on her head. The petitioner sent notification to the respondent that he felt the higher payments were no longer required because the daughter was not attending school, and resumed payments at the lower level until Christina turned 21.

The violation petition was filed in March of 2002 claiming that the 1996 order was being violated. She claimed that the respondent used their child's medical condition as an excuse for reducing his legal financial obligations. A New York Custody Lawyer said his response was that the child withdrew not because of a medical pretext but because of poor performance, and that her aim was ongoing support from her father. He said that since she wasn't in school he didn't have legal obligations to her, but continued to support her until her 21st birthday anyway, so he should not be required under the initial agreement to owe any arrears.

Facts

Investigation by the magistrate showed that only college graduation or a 21st birthday would serve as valid reasons for reducing or terminating payments. She agreed that the medical condition was not sufficient cause for school withdrawal, but also found that the reason for withdrawing was irrelevant. In the end, the respondent was found in arrears because he had inappropriately reduced his support payments without cause. He was as a result found to be in arrears by $110,571.19. He was also subsequently ordered to pay for his daughter's medical expenses. However, it was also ruled that this non-payment was not willful, so attorney fees were not awarded.

Cross Objections

A Nassau County Family Lawyer said that the respondent fears that if his daughter is entitled to support whenever she is in college that she will continue to withdraw without graduating in order to continue receiving support from her father. The respondent countered that any such obligation would be complete on the daughter's 21st birthday.

The respondent states that the 1996 order includes a clause which requires his consent when selecting a school, which was not done. He also states that it provides that that the original agreement becomes void if Cristina stopped attending school. He opposes all of the findings made by the support magistrate and claims that he owes no money for arrears, medical bills, or costs of living at the university, all of which are being sought.

Examination

The court finds that the lack of the father's involvement in selecting a school is not a valid argument in this case. Because he was not involved in her life, he did not voice an approval, which does not constitute a disapproval of the school.

A Queens Family Lawyer said that in addition, because he had originally agreed to support her while in school, the argument that obligation would cease once she turns 21 is also not valid.
The respondent is also not able to prove, nor does it directly apply to this case, whether or not his daughter intends to use college as a means of extracting money from him unfairly. However, it is deemed that some of the terms of the previous arrangement were ruled on incorrectly. The respondent should not be responsible for the medical bills, with the exception of the first appointment, related to the bald spot.

Ruling

The matter has to return to the Support Magistrate so that the amount of money owing to the petitioner can be recalculated, and the respondent will be required to pay that amount.

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Frances Bill is the respondent in this case where Gerald Bill was the appellant.

Summary

The Child Support Standards Act is the standard method used to determine child support payments based on the parents income. One of the issues included in the act is that the costs of child care are to be shared by parents in proportion to their earnings, and whether those terms can be enforced when the parties are unaware of the terms of the CSSA. The court ended up agreeing with the Family Court which ordered the father in the case to pay a percentage of the child care expenses encountered by the mother.

Facts

The appellant and respondent were married in November of 1985. Two children were born in 1983 and 1987. The couple purchased a house in New York and later moved to Orange Country. Both are long term employees of BMW of North America, Inc.

The couple separated in 1992 and began divorce proceedings. A New York Family Lawyer said the divorce agreement included custody of the children being awarded to the wife, while the husband was required to pay $325 in child support each week. The stipulation providing for these measured did not include the required statement showing that the couple had been advised of the CSSA, and did also not reference what the child support payments would have been had the standard CSSA formula been applied. No provision was made at the time for the division of child-care costs.

The figure eventually arrived at for child support was $28750. This was calculated by assessing 25% of the combined yearly income generated by both parents. This amount was entered as part of the stipulation of settlement, along with the logic used to arrive at the figures.

Very soon after this was agreed upon, a motion was filed to force the husband to contribute to child care costs. The husband opposed this motion, stating that his initial child support fee was already more than the CSSA would have required him to pay, but the wife stated that he was actually paying less. A Suffolk County Family Lawyer said the disagreement on this figure comes from the fact that income over $80,000 is discretionary in these matters, but no agreement was made as to how this income would be assessed in this case.

The wife alleged that the husband agreed to pay 50% of child care costs, but he maintains that while they discussed it, no agreement was ever reached or included in the settlement terms. However, because the wife had a right to seek those expenses, the husband was subsequently required to pay them. The husband's objection resulted in the ruling being adapted so that he paid $120 per week for child care until August of 1994 where his obligation increased to 60% of all child care expenses.

The CSSA is designed to provide a balanced tool for assessing the financial needs of children and determining how the income of the parent's needs to be allocated to provide for the child's well being. A Queens Family Lawyer critical part of the CSSA states that when child care expenses are incurred by a working parent that the court must assess the fees for that care and split the responsibility for the care services in the same ratio used for creating the child support payments.

When a stipulation is entered into that involves the payment of support for children, the parties are supposed to be notified of the terms of the CSSA and if and why they are deviating from the standard terms used under the act. If this had been complied with, the issues at hand such as the argument over how great the child-care fee is when compared to the income of the husband would be avoided.

Ruling

The existing stipulation does not work as a waiver to any entitlements deserved under the CSSA. As a result, the Family Court was right and the wife has a right to seek child care costs from the husband.

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Frances W. is the petitioner and Steven M. is the respondent.

The Issue

The petitioner sought an order of child support against the respondent which was subsequently denied after a hearing.

The petitioner filed in search of support for her niece, the daughter of the respondent in the case. This was filed on April of 2002. This was dismissed until an order was filed that clearly demonstrated the guardianship or custody of the child.

After a two-year hearing, custody of the child was given to Ms. W. The court then needed to decide whether the petitioner should be given child support payments by Mr. M, and whether the daughter had abandoned the father, in which case he would not be obligated to make such payments.

After review, the court decided to not require payments of child support.

History

Originally, the petitioner's sister was married to the respondent. They had a child, Melissa, in 1987. Possibly related to a history of emotional and psychological problems, as well as chronic pain, the respondent's wife committed suicide in the year 2000. The couple had been divorced in 1993 when the wife had made allegations of sexual abuse committed against their daughter by her husband. A New York Custody Lawyer said those allegations were eventually found to be baseless, and the father was allowed visitation with the daughter under the terms of the couple's eventual divorce.

It was later determined that both the mother of the child and her sister had fabricated the allegations of sexual assault against the father. The Referee assigned to the case blamed these fabrications for destroying the daughter's relationship with her father.

The original interviews conducted with Melissa took place when she was five. The mother maintained that she didn't want to visit her father because of the abuse, but the doctors who interviewed her felt other dynamics, family stress and other causes were responsible, and were suspicious of the allegations. Later interviews revealed that the child's only apparent knowledge of the alleged assaults were derived from the stories told to her by her mother. A Queens Family Lawyer said the petitioner throughout this process, despite knowledge of her sister's mental problems, supported the stories being told to the daughter and certainly contributed to the dissolution of the relationship between the girl and her father.

Although some medical evidence was presented that supported the sexual abuse allegations, the courts dismissed it because of the unreliability of the memory of the doctor at hand, who couldn't even recall getting permission to examine the girl for signs of abuse.

When determining whether or not the father of the child should have to pay child support, some facts need to be considered. First, the father has zero relationship with the daughters as a result of the brainwashing perpetrated by the aunt and mother of the girl. Because Ms. W.'s actions, which were not proper, caused this behavior, she does not have the right to seek child support payment.

A Nassau County Family Lawyer said that despite all the evidence to the contrary, it does seem as if Melissa believes that her father sexually assaulted her. This is due in large parts to the efforts of the aunt, which must be construed as making an active effort to destroy the relationship between father and daughter. To award her child support would be tantamount to awarding a profit for the fraud committed on the girl.

This does not mean that Melissa could not pursue action against her father. While her Aunt is certainly not entitled to profit, she may very well be entitled to collecting child support payments from her father, which should have been paid in the past. She could choose to pursue that venue at some point in the future.

Ruling

Ms. W.'s motion for child support was denied. A Law Guardian explained to Melissa her options in pursuing a petition for child support owed to herself.

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The petitioners in this case are Gabriel T. Russo, the Monroe County Department of Social Services and the New York State Department of Social Services. Leonard Rizzo is the respondent.

Motions

The respondent moves to dismiss the petition.

The Monroe County Family Court issued an order of child support where the respondent was charged with supporting his wife and child. No requirement of financial support was issued in this order. However, a change of circumstances is alleged in the petition which requests that the respondent pay a back payment of $4150 to the petitioner.

Case Facts

The respondent's initial child support had been reduced, his wage deduction cancelled and an order issued to return any funds held by the support bureau based on a change in his personal circumstances. This change took place in a modification of the original Order of Support. His circumstances included his increased financial burdens by reason of a new marriage, and the relocation of his wife and child to Florida. His wife had also remarried, and the family was no longer receiving public assistance funds.

A New York Family Lawyer said initially, $50 per week was being deducted from the petitioner’s wages in order to pay child support. In 1975, a petition was filed stating that he was in arrears $4150 on the payments. In March of 1973, the respondent admitted to refusing to support the dependents. However, the motion to dismiss the petition is based upon the divorce the Supreme Court granted in February of that same year. The separation agreement included support payments of $25 per week until the child was 21, and $25 per week for the wife if she remained single.

The respondent claims that the divorce ordered support for his wife so the Family Court could not issue their Order of Support. The law does not allow for liability to support another person when that person is no longer married and is on public assistance. A Long Island Family Lawyer said the initial order of support issues in 1973 was not valid because the court did not have the jurisdiction to issue it. Therefore, the terms of that order would normally no longer apply to the respondent.

The petition as it applies to child support cannot be dismissed though. The portion of the divorce which applies to child support is still applicable, and is enforceable. The original Family Court order would be invalid if the parties of interest were the same in all of the proceedings. The petitioner in the violation proceeding and the original petition however, was the Director of the Monroe County Department of Social Services.

This was the case because the director is authorized to originate proceedings to obtain support for dependents on public assistance. It is also important to note that there are reasons for denying the motion beyond the inability of the director to seek modification or enforcement of any of the proceedings. A Nassau County Family Lawyer said the law differentiates between support to children and spouses under common law and the support of those receiving public assistance. Supporting someone on public assistance is to reimburse the government for money spent supporting the individuals.

Another case relevant to this case took place recently. After a divorce, the husband was required to pay $10 weekly for support of the child. He did not pay for over ten years, and eventually the child moved out from the mother's home and had her own child. However, she moved back in with her mother before she turned 21. The court did not order back pay made to the welfare officer who had been supporting the child, however, it was stated that it did have the authority to demand this until the child turned 21.

Ruling

A new trial was needed to determine whether or not the respondent violated the Family Court order. The arrears named in previous court orders were reduced to half of the original amount.

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The appellant in this case was also the former wife of the defendant. The appellant has filed for a motion to order the court to review the family support case. The former husband, also known as the former husband, has filed a motion to terminate his financial support to the former wife and reduce his payments for child support.

A New York Custody Lawyer said that the family court was tasked to review the case and determine whether the rulings should stand. In order to begin reviewing the matter, the divorce settlement of the former spouses should also be submitted for review. According to the findings of the family court, the trial court’s rulings on the marital agreement were unclear or can be interpreted in many ways. The appellate court has determined that a reversal of proceedings should be in order to determine the correctness of the trial court decisions.

The former husband and the former wife have 2 children below the age of majority. The court has finalized the divorce settlement and ordered the former husband to pay support to his former wife. He was also ordered to provide financial support for the two children. According to the family law, the former wife was entitled spousal support. The amount of support will be deducted from the former husband’s income. The spousal support was to be paid to the former wife every year. The marital agreement contains the terms of payment for spousal support. The former husband must comply with this rule by family court.

In the marital agreement, an income cap was agreed. The former wife will not be entitled to spousal support if the income of the husband was to exceed a certain amount. A Nassau County Family Lawyer said that it was ordered by the court, the former husband was obliged to pay support for his children until such time that they reach 18 years old or until his death. The family financial support will terminate when these conditions are met. According to family law, the support payments cannot be modified or changed into another time or amount based on the time spent by their children in their respective custody.

According to the marital agreement, both the former wife and the former husband had agreed to the condition that amount of support will not be changed based on the income of the former wife. The former wife and the former husband can seek the modification of the support terms when there are changes in their standard costs of living, exchange rate, inflation and when one of the parties is suffering from a serious medical condition.

The marital agreement also contains the expiration or termination date of support. The date of termination shall not be subject to changes under any conditions. No party can request for additional support when the termination date has lapsed. The court will also have no authority to order support after the expiry date of the marital agreement. A Queens Family Lawyer said that after the date of termination has passed, the former husband will no longer be obliged to pay support for his former wife and children.

The former husband had filed for a modification of child support. According to his motion, the former wife has remarried. The former husband feels that since the former wife has a new husband who will also support her, the former husband is no longer obliged to pay support to her.

The former husband has acknowledged his support for his own children, a reduced amount should be established under the jurisdiction of the court in which they all now reside.
It has been determined by this court that the motion of the former husband is reversed. The appeal of the former wife to stop the temporary relief is granted. The court has found that new child support guidelines should be set by the new state of residence.

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A group of students in Orange County, Florida have taken the law into their own hands, and they just might win. The students are Law Students at FAMU, studying with a prominent New York City Family Lawyer, and they have developed the bill as a forward-thinking response to child support issues in the state of Florida.

Statistically, almost 20,000 children make their way into the foster system in the state of Florida each year, most being removed from parents by the state Department of Human Resources. This volume of people creates a tangible burden on the state of Florida, one which the New York Family Lawyer and his students think that absentee parents should help to shoulder.

Essentially, the bill drafted by the students re-configures the way that forced removals are considered under the law, and applies the same rules as those that apply during custody and support hearings for custodial parents. Parents of children who have been removed from their homes would be required to pay a sort of “child support”, said the Long Island Child Support Lawyer.Opponents of the bill claim that the new system would be unethical, similar to charging “rent” to incarcerated prisoners. They also claim that placing additional financial hardship on families who could not properly care for their children in the first place can only make matters worse. The bill’s authors have claimed that the bill will contain language which allows for indigent parents, and those truly unable to pay, to apply to have the fee waived.

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