Custody

Published on: May 26, 2014

Court Decides Jurisdiction Issue in Neglect Case

by Stephen Bilkis

A New York Family Lawyer said that, this is an appeal from an order of the Children’s Court Nassau County, dated December 8, 1955, directing appellant to support the two children of the parties, aged eight and ten years respectively, now living with respondent, formerly the wife of appellant. On May 4, 1955, the parties, then husband and wife, living apart, entered into a separation agreement. One of the provisions thereof required that the father pay $150 monthly for the support of the two children, nothing for the support of the wife. Thereafter, and on May 9, 1955, a judgment of absolute divorce was entered in the Circuit Court, Tenth Judicial District, State of Alabama, wherein the wife in this proceeding was the complainant, the husband the respondent. A Nassau Divorce Lawyer said, the separation agreement dated May 4, 1955, was made a part of the Alabama judgment. Petitioner, thereafter, returned to Nassau County, New York, where she again took up residence with the two children and on November 11, 1955 brought on this proceeding by information.

A New York Family Lawyer said that, after a trial of the issues by the Children’s Court judge, an order was entered in the Children’s Court requiring the appellant to pay $300 per month for the support of the two children. Appellant bases his appeal on two points. First, that the Children’s Court lacked jurisdiction to make the order appealed from in the absence of a showing that the children were delinquent, neglected or likely to become a public charge. Such has not been shown in this case. Second, that $3,600 per year out of an annual income of $9,000 gross per year (appellant’s income) is excessive and unreasonable.

The issue in this case is whether the Children’s Court lacked jurisdiction to make the order appealed from in the absence of a showing that the children were delinquent, neglected or likely to become a public charge.

Published on: May 25, 2014

Petitioner Requests a Downward Adjustment of Child Support

by Stephen Bilkis

A New York Family Lawyer said this is a matrimonial action wherein the parties were divorced by judgment entered 24 October 2008. The defendant appeals, as limited by his brief, from an order of the Supreme Court, Nassau County dated 30 July 2009, as denied, without a hearing, those branches of his motion which were for a downward modification of his child support and maintenance obligations and, in effect, denied that branch of his motion which was to confer continuing jurisdiction over this action upon the Family Court concurrent with that of the Supreme Court.

A New York Child Custody Lawyer said the court orders to modify, on the law, by deleting the provision denying, without a hearing, those branches of the defendant’s motion which were for a downward modification of his child support and maintenance obligations. As so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing on those branches of the defendant’s motion which were for a downward modification of his child support and maintenance obligations and a new determination thereafter on those branches of the motion.

Based on Matter of Gravlin v Ruppert, Merl v Merl and Nelson v Nelson, the terms of a stipulation of settlement that is incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties. As was held in Merl v Merl, Matter of Boden v Boden and Nelson v Nelson, generally, child support provisions deriving from such an agreement may be modified upon a showing that the agreement was not fair and equitable when entered into, or upon a showing of an unanticipated and unreasonable change in circumstances. Modification of maintenance obligations deriving from such an agreement generally requires a showing of extreme hardship based on Domestic Relations Law § 263[B][9][b] and as held in a similar case of Rockwell v Rockwell.

Published on: May 24, 2014

Petitioner Seeks to Evict Former Girlfriend from Residence

by Stephen Bilkis

A New York Family Lawyer said that in this summary licensee holdover proceeding brought under RPAPL 713 (7), petitioner seeks to evict respondents, his former girlfriend, their three-year-old son; and petitioner’s daughter from a different relationship.

A Nassau County child support attorney said that petitioner and Respondent’s relationship has turned sour. Pending in Criminal Court, New York County, is a prosecution against Petitioner for the class “A” misdemeanor of Aggravated Harassment allegedly committed against Respondent. Criminal Court in that action has issued a temporary order of protection against Petitioner in Respondent and the son’s favor. Also pending are custody, visitation, and support proceedings in Family Court, New York County. Family Court has awarded temporary custody of the son to Respondent.

A New York Child Custody Lawyer said the respondents now move to dismiss the petition or, in the alternative, to stay this proceeding pending Family Court’s final determinations. She argues that Petitioner may not bring a licensee proceeding against Respondent. According to Respondent, she is not a licensee whose license Petitioner may revoke.

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.