Custody

Published on: May 23, 2014

Plaintiff Appeals Divorce Judgement Regarding Her Share of Business

by Stephen Bilkis

A New York Family Lawyer said this is an action for divorce and ancillary relief wherein the plaintiff appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County entered on 19 August 2008. After a nonjury trial, plaintiff was directed to pay a monthly child support in the amount of $4,833.33, awarded him only one half of the defendant’s one-half-interest in the marital residence which she jointly owned with her mother, and only one half of the sum of $440,000, which the defendant transferred to the custodial accounts of the parties’ children without his permission, awarded the defendant 25% of the appreciated value of his two businesses, declined to award him a percentage of the defendant’s increased earnings, and declined to award him a 50% credit for unaccounted-for funds in the accounts held by the defendant jointly with her mother at Chase Bank, deposited from 14 October 1997, to 12 October 2001.

The court orders that the judgment is modified, on the law, on the facts, and in the exercise of discretion, by deleting the fifth decretal paragraph thereof and by adding to the fifteenth decretal paragraph thereof, after the words “Memorandum Decision After Trial,” the phrase, “except that (i) the net value of the marital home which is available for equitable distribution is $549,876, and the husband is credited with the sum of $274,938, and (ii) the net value available for equitable distribution with respect to the children’s custodial accounts is $605,848, and the husband is credited with the sum of $302,924.

A New York Custody Lawyer said as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings.

Published on: May 22, 2014

Court Charges Husband with Retroactive Child Support

by Stephen Bilkis

A New York Family Lawyer said in an action for a divorce and ancillary relief, the defendant former husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, which, after a nonjury trial, and upon a finding that the plaintiff former wife was entitled to 50% of the value attributable to the marital portion of his law license, inter alia, directed him to pay a distributive award in the amount of $690,953.50, maintenance in the amount of $42,000 per year for a period of 15 years and $24,000 per year thereafter until the death of either party, and child support in the amount of $31,972 per year, and the plaintiff former wife cross-appeals from so much of the same judgment as, upon a finding that she was entitled to only a 40% share of the defendant former husband’s interest in his law firm, awarded her as part of the distributive award a sum of money equivalent thereto, failed to award her retroactive child support and maintenance, and directed the defendant former husband to pay child support in the amount of only $31,972 per year.

The court held that “Once a court converts a specific stream of income into an asset, that income may no longer be calculated into the maintenance formula and payout”. It is impossible to determine from the record before us whether the Supreme Court impermissibly engaged in the “double counting” of income when valuing the defendant former husband’s enhanced earning capacity, together with his interest in his law firm, and which values were then used in equitably distributing the marital property, and in determining the award of maintenance to the plaintiff former wife. Here, in valuing and distributing the marital portion of the defendant’s law license, the Supreme Court converted a certain amount of his projected future income stream into an asset.

However, a New York Child Custody Lawyer said since the Supreme Court used one method in determining the defendant’s enhanced earnings and a separate, possibly overlapping, method in valuing his interest in his law firm and failed to explain how it amalgamated the two methods and kept them from overlapping, it is impossible to tell whether or not the Supreme Court erred in its determinations as to maintenance, child support, and equitable distribution. Thus we remit the matter to the Supreme Court, Nassau County, to address this issue, and, if necessary, to recalculate those awards. Since we are remitting this matter for further proceedings, including, inter alia, the possible recalculation of the awards for child support and maintenance, we note that in its recent decision in a case, the Court of Appeals addressed the issue of child support, and further note our admonitions regarding the interplay of, inter alia, maintenance and child support.

Published on: May 20, 2014

Petitoner Contends Respondant has No Need for Spousal Support

by Stephen Bilkis

A New York Family Lawyer said an objection to an order was filed with the court and a rebuttal to the objection was received from the county attorney.

The complainant objects to the order of the hearing examiner, arguing that the determination that the complainant does not have a need for support is not supported by the evidence in the record and is contrary to the prevailing law.

A New York Custody Lawyer said that subsequently, both parties provided the court with memoranda of law.

Published on: May 20, 2014

Plaintiff Seeks to Convert Judgment from Dominican Republic to New York

by Stephen Bilkis

A New York Family Lawyer said in a proceeding to convert a judgment of divorce from the Dominican Republic to a New York judgment, the plaintiff wife appeals from an order of the Supreme Court, Nassau County, which denied her application for leave to file the judgment from the Dominican Republic as a New York judgment.

A New York Custody Lawyer said that the plaintiff commenced an action for a divorce in the Supreme Court, New York County. She and the defendant subsequently entered into a separation agreement, which, among other things, provided for child support for their three children.

After the separation agreement was signed, the parties apparently decided against pursuing the New York County matrimonial action any further. With the plaintiff’s consent, the defendant went to the Dominican Republic and obtained a bilateral judgment of divorce. This judgment recited that the parties expressly consented to the jurisdiction of the Dominican Republic. The New York separation agreement was incorporated by reference, but not merged, in the judgment.

Published on: May 19, 2014

Husband Files Suit Over Proceeds from the Sale of the Marital Residence

by Stephen Bilkis

In an action for a divorce and ancillary relief, the defendant husband appeals from so much of a judgment of the Supreme Court that awarded the complainant wife an equal share of the net proceeds from the future sale of the marital residence and directed him to pay his wife $100 per week for her maintenance for a period of 10 consecutive years and $47.50 per week each child for the child support of each of the four infant children of the marriage. The said judgment also awarded the wife a one-third share of his net periodic retirement benefits accrued during the marriage and the sum of $2,204.18 as arrears owed by him pursuant to a previous court order. It also set forth a schedule for visitation of the parties’ children and awarded the wife $2,000 in counsel fees.

A New York Family Lawyer said the only marital assets of the parties were the marital residence and the defendant’s pension. In awarding the wife an equal share of the proceeds to be realized from the sale of the marital residence at the time the youngest child attains the age of 21 years or is sooner emancipated, Special Term effectuated the purpose and intent of equitable distribution. Although no testimony was presented as to the value of the defendant’s pension, Special Term properly awarded the wife a one-third share of that portion of the net periodic pension benefits attributable to employment during the marriage that the defendant will begin to receive at the time of his retirement. Since there were insufficient marital assets from which to derive a large lump-sum payment and various contingencies rendered the determination of present value difficult, this method of distribution was proper. However, because there was no evidence of when the defendant became a participant in his retirement plan, it was not possible to determine the length of time prior to the commencement of the divorce action that the defendant accumulated benefits.

A New York Child Custody Lawyer said the matter must be remitted to the Supreme Court to determine the commencement date of the defendant’s participation in his pension plan. This will enable the trial court to calculate the fraction by which the wife’s one-third share should be multiplied to determine the amount of her entitlement. The numerator of this fraction shall be the number of months between the time of the beginning of the defendant’s participation in his pension plan and the commencement of the divorce action, while the denominator will consist of the total number of months during which the defendant accumulated benefits.

Published on: May 18, 2014

Child Guardian Files for Compulsory Accounting

by Stephen Bilkis

A New York Family Lawyer said this is a proceeding wherein A and B, as parent and legal guardian of C, filed a petition for a compulsory accounting and related relief pursuant to Surrogate Court Procedure Act §2205 on 9 July 2012, against E, co-executor and co-trustee, of the estate of F. E filed a response to petition for compulsory accounting seeking dismissal of the petition to compel an accounting for lack of standing of petitioners.

A New York Child Custody Lawyer said in rendering this decision the court has considered the petition to compel an accounting filed on 9 July 2012, the response to petition for compulsory accounting by E acknowledged on 6 August 2012, Petitioner’s Memorandum of Law dated 10 September 2012, Memorandum by G, Esq. on behalf of E, dated 13 September 2012, petitioners’ responding memorandum dated 1 October 2012 and the accounting proceeding responding memorandum by G filed 1 October 2012.

A Suffolk County Family Lawyer said that F, the testator, died on 2 March 2000. He was survived by his wife, H; the respondent herein, E; and two sons, I and J. At the time of the death of F, K had two infant children and L had four infant children. Two of the then minor children of J, A and C, are petitioners herein. A is no longer a minor.

Published on: May 17, 2014

Court Determines Whether Personal Injury Case States Cause of Action Against Defendant Parents

by Stephen Bilkis

A New York Family Lawyer said that on or about September 27, 2008 at about 2:30 a.m, plaintiff was a rear seat passenger in a vehicle operated by defendant driver and owned by his mother, and her husband, sustained injuries when defendant driver lost control of his vehicle and struck a tree head on. A Nassau Order of Protection Lawyer said that, at the time of the accident, only possessed a junior’s driver’s license. Prior to the accident, between the hours of 8:30 p.m. and 10:30 p.m., defendant driver and plaintiff were a guests at a party held in the home of defendant, located in Port Washington, New York, and hosted by teen-aged defendant and her daughter. Defendant was at her place of employment in New York City and was not on site during the party. All guests were under the age of twenty-one (21) and alcohol and drugs were consumed on the premises. Defendant driver is alleged to have consumed alcohol and drugs at the party and to have left the party in an intoxicated and/or impaired state. Plaintiff has admitted during his pre-trial deposition, that he consumed drugs and alcohol during the hours preceding the accident. Defendant driver is alleged to have operated his vehicle while under the influence of controlled substances and the subject accident was a direct consequence.

A New York Child Custody Lawyer said that, plaintiff and his mother, “plaintiffs”, commenced the underlying personal injury action against all defendants on or about December 9, 2008. The plaintiffs allege liability against defendant driver under the theory of negligence and against his parents, vicarious liability as owners of the vehicle. In addition they plead causes of action against his parents in negligence per se, and negligent entrustment of a vehicle. The plaintiffs also allege that plaintiff victim sustained a serious injury pursuant to the no fault statutory provisions. The defendants set forth five affirmative defenses in its answer: Plaintiff’s damages were caused by his culpable conduct; the complaint failed to state a cause of action; he failed to use or misused his seatbelt; he did not sustain a serious injury; and he was obligated to mitigate his damages and he failed to do so.

A Nassau Child Custody Lawyer said that, upon the plaintiffs’ motion on or about May, 2009, this Court granted summary judgment as to the first cause of action against the defendants, while denying the defendants’ motion for an Order consolidating the three pending related causes of action against them, instead joining the three actions for a joint trial. The plaintiffs then moved this Court on or about December 21, 2009 pursuant to CPLR 3212, for an Order granting Summary Judgment as to the second cause of action alleging that plaintiff sustained a serious injury, and for an Order pursuant to CPLR 3211 dismissing the defendants’ first, second, third, and fifth affirmative defenses. The Court granted the plaintiff’s motion as to the first, second and third affirmative defenses while reserving its decision on the fifth pending completion of discovery. The defendants’ concession that plaintiff sustained a serious injury, obviated striking of the fourth affirmative defense.

Published on: May 16, 2014

Court Decides Whether to Enforce Provisions of Prior Judgment

by Stephen Bilkis

A New York Family Lawyer said that, in a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, dated March 30, 2009, which denied his objections to so much of an order of the same court, dated October 14, 2008, as granted that branch of the mother’s motion which was to preclude evidence of the father’s finances and, in effect, granted the mother’s petition to enforce the provisions of a judgment of divorce dated July 9, 1996, and the parties’ separation agreement which was incorporated but not merged into the judgment of divorce, obligating the father to pay the college expenses of the parties’ child.

A New York Custody Lawyer said the issue in this case is whether the court erred in granting to enforce the provisions of a judgment of divorce dated July 9, 1996.

A New York City Family Lawyer said the court in deciding the case said that, contrary to the father’s contention, there is no requirement that a movant identify a specific statute or rule in the notice of motion, only that the notice “specify the relief demanded and the grounds therefor” (CPLR 2214 [a]). Even though the mother’s notice of motion and supporting affirmation did not formally and specifically request relief pursuant to CPLR 3126, where, as here, there is no misunderstanding or prejudice, “a court may grant relief that is warranted by the facts plainly appearing on the papers on both sides”. Here, the mother’s notice of motion clearly seeks the relief of preclusion based upon the father’s alleged willful failure to respond to her discovery demands. Accordingly, because the father was adequately apprised of the relief sought and the grounds therefor, there was no prejudice, and the Child Support Magistrate did not err in treating the motion as one made pursuant to CPLR 3126.

Published on: May 15, 2014

Mother Petitions Court to Hold Spouse in Contempt of Child Support Order

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the parties were divorced by judgment entered March 16, 1998, the father appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Nassau County, dated December 14, 2007, which, inter alia, after a hearing, granted the mother’s motion to hold him in contempt for failure to comply with a prior order of the same court, dated July 19, 2006, and committed him to a term of incarceration for a period of 30 days unless he purged himself of his contempt by paying the sum of $25,000 to the mother, and granted the mother’s separate motion for an upward modification of his child support obligation from the sum of $2,058 per month to the sum of $3,535.50 per month, and for an award of 50% of certain educational expenses for the parties’ two younger children.

A New York Child Custody Lawyer said that, the parties were divorced in 1998, and has four children. The instant appeal is from an order which granted the mother’s motion to hold the father in contempt for failing to comply with a prior order requiring him to contribute to the college tuition of the parties’ two older children, and granted her separate motion for upward modification of child support and for an award of certain educational expenses for the parties’ two younger children.

A Westchester County Family Lawyer said the issue in this case is whether the mother’s motion that the father be placed in contempt for failing to comply with a prior order requiring him to contribute to the college tuition of the parties’ two older children, and to grant her separate motion for upward modification of child support and for an award of certain educational expenses for the parties’ two younger children.

Published on: May 13, 2014

Mother Appeals Child Support Order

by Stephen Bilkis

This is a child support proceeding pursuant to Family Court Act, article 4, wherein the mother appeals from an order of the Family Court, Nassau County dated 18 June 2007 which denied her objections to an order of the same court dated 15 December 2006, granting the father’s petition for downward modification of his child support obligation as set forth in a judgment of divorce entered 19 April 2005, to the extent of reducing his child support obligation from the sum of $2,400 per month to the sum of $1,448.12 per month.

A New York Family Lawyer said the court modifies, on the law, the order dated 18 June 2007 by deleting the provision thereof denying the mother’s objection to so much of the order dated 15 December 2006 as granted the father’s petition for downward modification of his child support obligation to the extent of reducing his child support obligation from the sum of $2,400 per month to the sum of $1,448.12 per month, and substituting therefor a provision sustaining that objection, and vacating the provision of the order dated 15 December 2006 granting the father’s petition for downward modification of his child support obligation to the extent of reducing his child support obligation from the sum of $2,400 per month to the sum of $1,448.12 per month; as so modified, the order dated 18 June 2007 is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for a new determination of the father’s child support obligation.

A New York Child Custody Lawyer said the long- term marriage of the parties produced three children. In 2003, the parties entered into a stipulation of settlement which was incorporated but not merged in the parties’ judgment of divorce, entered 19 April 2005. In relevant part, the stipulation of settlement provided that the parties would each pay one half of the children’s college expenses. The settlement further states that at such time as a child attends college, the amount of Child Support shall be readjusted based on Reinisch v Reinisch.