High net worth divorces can be especially messy.  For Frank and Jamie McCourt, many wait to see what detriment their divorce will have on their baby of six years, The Los Angeles Dodgers.

                The McCourts were teenage lovebirds, married for thirty years; they flourished as partners in real estate and purchased the Dodgers together in 2004.  Nevertheless, the marriage dissolved in 2008.  In the midst of this bitter divorce, an outstanding question awaiting resolution is whether the Dodgers will go with Mommy McCourt or with Daddy.

                The McCourt divorce demonstrates, on a larger scale and from a more public sphere, what occurs in any family dealing with divorce and the difficulties that may arise with equitable distribution.  The fate of the ownership of the team now rests in the hands of the Court system.

        A Nassau Supreme Court Justice rejected a man's petition for divorce on the grounds of abandonment.  The husband claimed that his wife refused to have sex with him for almost 12 years.  Meanwhile, the wife's testimony undermined and counteracted her husband's.  She refuted her spouse's claims, stating that she was actually going to resume sexual relations with him despite his current residence with another woman, whom he had dated during their marriage.  The wife brings further conflicting evidence to the table as she describes their usual infrequency of sexual relations due to the husband's bad liver.  Because the wife's statements were equally as credible as her husband's, the judge had no choice but to dismiss the action on the basis of "the [wife's] conflicting testimony and the husband's failure to establish fault."

        This case reveals the problem with requiring grounds for divorce. In this case, the husband attempted to prove abandonment. He was unsuccessful because it is difficult to find evidence for and to prove beyond a doubt that the wife refused him sex. The sexual relationship between a husband and a wife is a private matter, in which a witness would be almost impossible to find. In the end, it is "one spouse's words against another's."

         This sparks interest in light of the recent passing of the no-fault divorce bill in New York. This revolutionary bill permits divorce after a marriage has been deemed "irretrievably broken down for at least six months or more." This bill eliminates the need to identify a fault, such as abandonment.  In accordance with this new bill, the aforementioned case would have been simply settled by stating that the relationship was beyond repair; the marriage would have been dissolved without putting either spouse at fault.

To view the case, see below:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NASSAU

            Before this court is a grounds trial which was conducted on April 21, 2010. The verifiecomplaint consist of one cause of action, Constructive Abandonment.

            Plaintiff, J.S., and defendant, D.S., were married in a civil ceremony on November 21, 1989.  This action was commenced on November 9, 2009. Plaintiff has been a resident of the State of New York for a continuous period of two years immediately prior to the commencement of this action.  At the time of the marriage, both parties were over the age of 18. No judgments of divorce, separation or annulment have been granted to either party in this state or any other jurisdiction. There is one emancipated child of this marriage, whose date of birth is May 8, 1979, who resides in Atlanta, GA and no other children are expected. The marriage between the parties was not solemnized by a person specified in Domestic Relations Law §11(1). There is no other action or proceeding for a divorce or other dissolution of the said marriage of the parties pending in this or any other jurisdiction.

            The verified complaint alleges that the parties have not sexually cohabited with each other as husband and wife for a period commencing on September 1, 1998 and continuing through the present time and during the said period of time the defendant has not so sexually cohabited or engaged in sexual relations with the plaintiff as husband and wife despite the plaintiff's willingness and despite his repeated requests to do so. That the defendant's refusal to so sexually cohabit with the plaintiff and engage in sexual relations with the plaintiff was not caused or provoked by any conduct on the part of the plaintiff and said conduct of the defendant was without the plaintiff's consent. Upon information and belief, the defendant has not suffered from any mental or physical disability that would prevent or inhibit the defendant from so sexually cohabiting and engaging in sexual relations with the plaintiff.  By reason of the foregoing, the said conduct on the part of the defendant constitutes a constructive abandonment of the plaintiff.

            Plaintiff testified that his current address is X, NY and that the defendant resides at the marital residence located at X, NY, that the parties resided at that residence for 13 years from 1988 until 2001. Plaintiff testified that all information in the verified complaint was true to the best of his knowledge and that the allegations were still true as of the date of this grounds trial. Plaintiff testified that he is presently married to defendant and that their date of marriage was on November 21, 1989 and the marriage was performed in Queens Court, he has one child with defendant, her date of birth is May 8, 1979 and she is 31 years of age and self supporting. Defendant still resides at X, NY.

            Plaintiff testified that he and the defendant enjoyed a satisfactory sexual relationship from 1988 through 1998. Plaintiff also testified that they stopped having sexual relations on or about September 1, 1998 when the relationship deteriorated. Plaintiff testified that he would initiate sexual relations on occasion after taking defendant out to dinner, drinking or being out with friends. Plaintiff stated that defendant infrequently initiated sexual relations. Plaintiff testified that there was never a time that he refused defendant sexual relations. Plaintiff testified that defendant refused him sexual relations for no valid reason.  Plaintiff testified that even after defendant refused to have sexual relations, that he tried to have conversations with defendant regarding same. Plaintiff and defendant belong to Jehovah Witness and plaintiff sort the advise of the Elders as to how to handle the deterioration of his marriage.

            Plaintiff removed himself from the marital residence on or about June or July 2001.  Plaintiff testified that the defendant's mental and physical health appeared normal and that there was no cause not to have sexual relations. Plaintiff testified that he made several attempts on various occasion to have sexual relations with defendant. He would take her to dinner, bring her flowers, take her out for drinks with friends, go away to the Pocono's with friends from their Jehovah Witness fellowship, but defendant still refused to have sexual relations with plaintiff.

            Upon cross examination of the plaintiff, he first stated that he stopped having sexual relations with the defendant in 2000 then changed it to 1998, however, he left in June or July of 2001. Plaintiff was questioned as to his 2008 Federal Income Tax return wherein he has his current girlfriend listed as a dependant/sister. Defendant's counsel questioned plaintiff as to his health and defendant's health and stated that in his prior testimony, he stated that they were both in good health. Defendant's counsel did point out that defendant, does in fact, have hepatitis B which is a communicable disease and could be spread through sexual relations, to which plaintiff agreed. Plaintiff was questioned as to who X is and he stated that she is his girlfriend of the past 9 or 10 years and that he currently resides with her. When asked why plaintiff's 2008 Federal Tax Return lists Ms. X as an exemption and as the plaintiff's sister, plaintiff stated that it must be a mistake.

            Defendant testified on direct examination that she was present during plaintiff's testimony and based upon her knowledge, the plaintiff's testimony was not true.  Defendant testified that she never denied plaintiff sexual relations and that on several  occasion when she initiated sexual relations, plaintiff refused. Defendant testified that they had an active sexual relationship up until when the plaintiff left the marital residence which was in June 2001. Defendant further testified that on one occasion, after sexual relations, plaintiff fell asleep and defendant looked at his cell phone which was unlocked and she called the phone number for X. Defendant and Ms. X had a long conversation and when plaintiff awoke, defendant presented plaintiff with his telephone. When plaintiff realized that the defendant and Ms. X had conversed, it was at that time that plaintiff left the marital residence.

            Defendant acknowledged that the sexual relationship was infrequent, however, she stated that plaintiff was not that physical of a person and that she was okay with the

infrequent sex as plaintiff's liver is not in good shape as a result of the hepatitis B.

Defendant stated that she never refused to have sexual relations with defendant and that she was always willing to resume her sexual relationship with the defendant and does not want to pursue a divorce.

            After plaintiff admitted to his relationship with Ms. X, defendant went to her doctor

and was told that she had a vaginal infection. As plaintiff and defendant had a doctor in

common, the doctor advised defendant that she should receive an injection because of her husband's hepatitis B. Defendant refused the injection due to plaintiff removing himself from the marital residence. Defendant states that she did not request plaintiff leave.  Defendant stated that she has been lied to before and that her heart is not in this divorce.  She forgives her husband and has always been willing to have and resume sexual relations with defendant.

Constructive Abandonment

            "It is well settled that to establish a cause of action for a divorce on the ground of constructive abandonment, the spouse who claims to have been constructively abandoned must prove that the abandoning spouse unjustifiably refused to fulfill the basis obligations arising from the marriage contract and that the abandonment continued for at least one year" (Lyons v. Lyons, 187 A.D.2d 415, 416, 589 N.Y.S.2d 557 (2nd Dept. 1992); see also, George M. v. Mary Ann M., 171 A.D.2d 651, 651-652, 567 N.Y.S.2d 132 (2d Dept. 1991); Caprise v. Caprise, 143 A.D.2d 968, 970, 533 N.Y.S.2d 622 (2nd Dept. 1988). In order to rise to the level of constructive abandonment, the refusal must be "unjustified, willful, and continued, despite repeated requests from the other spouse for resumption of cohabitation'" (Caprise v. Caprise, supra, at 970, 533 N.Y.S.2d 622 quoting Scheinkman, Practice Commentaries, McKinney Cons. Laws of N.Y. Book 14, Domestic Relations Law C170:7, at 608 [emphasis in original]). Where there is no proof that one spouse repeatedly requested a resumption of sexual relations, evidence that the other spouse refused a single request to engage in sexual relations is insufficient to sustain a cause of action for divorce on the grounds of constructive abandonment (see, Caprise v. Caprise, supra, Silver v. Silver, 253 A.D.2d 756, 677 N.Y.S.2d 593 (2nd Dept. 1998). Evidence that a party refused sexual relations for the required period and that the refusal was willful, continued, and unjustified would be sufficient (see Gulati v. Gulati, 50 A.D.3d 1095, 857 N.Y.S.2d 643 (2nd Dept. 2008); Ostriker v. Ostriker, 203, A.D.2d 343, 344-45, 609 N.U.S.2d 922, (2nd Dept. 1994); Gunn v. Gunn, 143 A.D.2d 393, 532 N.Y.s.2d 556 (2nd Dept. 1998); Benarroch v. Benarroch, 55 A.D.2d 943, 391 N.Y.S.2d 138 (2nd Dept. 1977). 

            The party seeking the divorce has the burden of demonstrating marital misconduct.  See, Salomon v. Salomon, 102 Misc.2d 427, 423 N.Y.S.2d 605 (Sup. Ct. Suffolk Co. 1979) (generally); and Wolfson v. Wolfson, 39 A.D.2d 724, 331 N.Y.S.2d 844 (2nd Dept.).app. dism., 31 N.Y.S.2d 671, 336 N.Y.S.2d 907, 288 N.E.2d 808 (1972) (with regard to abandonment). Entitlement to a divorce for construction abandonment must be based upon a showing in part, that the refusal to engage in marital relations is unjustified, willful and continuous. Diemer v. Diemer, 8 N.Y.2d 206, 203 N.Y.S.2d 829, 168 N.E.2d 654 (1960). See, also, Chase v. Chase, 208 A.D.2d 883, 618 N.Y.S.2d 94 (2nd Dept. 1994); and Lyons v. Lyons, 187 A.D.2d 415, 416, 589 N.Y.S.2d 557 (2nd Dept. 1992).

            To determine whether a witness is telling the truth is sometimes a difficult issue for the Court to decide. In the instant action, both the plaintiff and the defendant seemed credible. Their demeanor and testimony seemed truthful, but since they both testified to a different set of facts regarding the same events only one can be telling the truth.

            In a similar case, (Sullivan v. Sullivan, 180 Misc.2d 433, 440, 689 N.Y.S.2d 378, 383 (Sup. Ct. Suffolk Co. 1999)), the Judge eloquently described this type of testimony as follows: "Only two witnesses testified on the trial of this matter: the parties. On the one hand, plaintiff testified that he requested and was rebuffed. On the other, defendant testified to an active sexual relationship until ... [the defendant moved out.] On balance, these competing versions of the relationship of the parties, in and of itself, is a wash. Put another way, plaintiff has not established a fair preponderance of the credible evidence that there was a constructive abandonment here. Where there is an even balance of evidence, the Court is required to find for defendant. See, Rinaldi & Sons, Inc. v. Wells Fargo Alarm Service, Inc., 39 N.Y.2d 191, 383 N.Y.S.2d 256, 347 N.E.2d 618 (1976)."

            As a result of the foregoing and adopting the controlling case law cited above, this Court finds that the plaintiff simply has not met his burden of proof to establish grounds for a divorce pursuant to DRL §170(2).

            The only two (2) witnesses that testified were the parties herein. The plaintiff testified he requested to have sexual relations with the defendant and was refused. The defendant testified she enjoyed having sexual relations with the plaintiff and did not refuse and was still willing to have sexual relations.

For the foregoing reasons, the action is dismissed.

This constitutes the decision and Order of the Court.

Dated: May 24, 2010

Mineola, New York

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An unexpected twist occurred in the shared custody of two children as a Supreme Court Justice in Nassau County sentenced the mother, the Plaintiff, to spend six weekends in jail for her frequent attempts to estrange her ex-husband, the defendant, from their daughters.  She blatantly undermined the Court order that decided the father's visitation rights.  The Plaintiff created obstacles that hindered the father from seeing his daughters during scheduled visits.  Due to her efforts, she was able to keep the father from his children for six weeks during the winter of 2007.  The Plaintiff even went so far as to accuse the father of sexually abusing the children; no evidence was found to support such allegations.  Nevertheless, the Court found the evidence of the Plaintiff's interference with the father's visitation rights and her mindful violation of the couple's stipulation of settlement to be overwhelming.  Consequently, the Long Island judge ordered the Plaintiff to spend every other weekend this summer at Nassau County Correctional Facility.

The judge's ruling on this case is an example for other spouses who are going through a divorce, in which there are children involved.  By trying to manipulate the relationship between her ex-husband and the children, the mother did not have "the children's best interests at heart."  She did her best to pry her daughters away from their father; the mother, thus, unnecessarily exposed her children to and entangled them within her messy relationship with the ex-husband.  Couples who have strained relations must remember to be conscious of how their behavior with their spouse or ex-spouse can affect their children.

To view the case see below:

NASSAU COUNTY
Family Law

Decided: May 25; 203699-02

The continuing jurisdiction of the Supreme Court to modify or annul its custody and visitation judgments and orders, is set forth in Domestic Relations Law §240. Such authority is similarly provided to the Family Court pursuant to Family Court Act §467. In post judgment proceedings regarding a modification of custody and visitation, the standard is the "best interest of the child," when all of the applicable factors are considered. See, Friederwitzer v. Friederwitzer, 55 NY2d 89.

Parental access, commonly referred to as "visitation," is an important right of the non-custodial parent and the child. See, Weiss v. Weiss, 52 NY2d 170. In a scenario where one parent is demonstrated to have interfered with the custodial rights of a parent, a number of mechanisms exist [see, Scheinkman, New York Law of Domestic Relations, Second Edition, §23.14] to aid in the enforcement of custody orders and judgments, including:

1. Criminal Sanctions, pursuant to Penal Law §135.45 and 135.50;

2. Suspension of alimony or maintenance, pursuant to Judiciary Law 750,753;

3. Tort action for custodial interference;

4. Orders of Protection, pursuant to Domestic Relations Law §240.

While the most factually apparent ground to change existing custody arrangements involves physical danger, the act of alienating a child against a parent presents a nefarious form of conduct that must be met with careful consideration and immediate, comprehensive remediation by a Court (see, Zafran v. Zafran, 306 AD2d 468; Lew v. Sobel, 46 AD3d 893). A change in custody should not be permitted solely as a means for punishing a recalcitrant parent (see, Lew v. Sobel, supra), but always requires due consideration of all of the other custodial factors. See, Robert T.F. v. Rosemary F., 148 AD2d 449.

While mindful of the consequential future effect of this determination (see, Lauer v. City of New York, 95 NY2d 95, 100), inasmuch as a Court's finding of willful interference "per se raises a strong probability that the custodial parent is unfit" (see, Young v. Young, supra; Glenn v. Glenn, supra), when a pattern of alienation by the custodial parent is proven in any prior proceeding, that alienating conduct must [emphasis added] be considered and addressed by the Court in any subsequent proceeding involving custody/parental access. See, Audobon v. Audobon, 138 AD2d 658; Martin R.G. v. Ofelio G.O., 24 AD3d 305. Also, see CPLR §4213[b]; Robert T.F. v. Rosemarie F., 148 AD2d 449.

The doctrine of res judicata bars the issue of whether alienation occurred in the subsequent change of custody hearing ordered herein. See, O' bdoherty@chat.nyc.amlaw.corp Brian v. City of Syracuse, 54 NY2d 353, 357; Matter of Waldman v. Waldman, 47 AD3d 638; Braunstein v. Braunstein, 114 AD2d 46, 53; Town of New Windsor v. New Windsor Volunteer Ambulance Corps, Inc., 16 AD3d 403. Considering that parental alienation of a child from the other parent has been determined to be "an act inconsistent with the best interest of the child (Bobinson v. Bobinson, 9 AD3d 441; Stern v. Stern, 304 AD2d 649; Zafran v. Zafran, 28 AD3d 753; Zeis v. Slater, 57 AD3d 793), and that it has been proven in this contempt proceeding - - the "strong likelihood of unfitness" becomes a "factor" that must be considered in the change of custody hearing ordered herein.

Protraction or delay in parental alienation cases often serve to reinforce the offending conduct and potentially undermine any remediation that a court could fashion with appropriate therapy, parent coordination, and/or, a change in custody. See, Steinberger, Father? What Father? Parental Alienation And Its Effect on Children, NYSBA Family Law Review, Spring 2006; Johnston, J.R., Children of Divorce Who Reject a Parent And Refuse Visitation: Recent Research & Social Policy Implications for the Alienated Child, 38 Fam. L.Q. 757, 768-769. Under the circumstances of this case, this Court's finding of a willful violation of an existing order of custody in the form of parental alienation requires a prompt evidentiary hearing to determine whether the children's best interests, under the totality of the circumstances, warrant modification of the previously entered custody order. See, Friederwitzer v. Friederwitzer, 55 NY2d 89; Corigliano v. Corigliano, 297 AD2d 328; Martin R.G. v. Ofelio G.O., 24 AD3d 305; Carlin v. Carlin, 52 AD3d 559.

PROCEDURAL HISTORY

By Order to Show Cause dated December 14, 2007, defendant sought an order to have the plaintiff held in contempt for her willful and deliberate failure to comply with the Stipulation of Settlement, dated October 30, 2003, in that she allegedly interfered with his right to frequent and regular visitation with and telephone access to the parties' children, D. and N.; and by alienating the children from the defendant through numerous acts of disparaging the defendant to the children. The Court granted defendant's motion by its Amended Decision and Order dated September 9, 2008, to the extent that a hearing was ordered. This contempt hearing was held before me on May 15, 21, July 13, 15, 16, August 3, 4, 5, 6, 17, 18, 19, September 17, 2009, January 4, 5, 6, 7, 8, 11, 12, 19, February 3, and 22, 2010.

The parties' Stipulation of Settlement was incorporated but not merged into the parties' Judgment of Divorce (Stack, J.). Pursuant to the unequivocal terms of the Stipulation, she was prohibited from "alienating the children from the defendant, plac[ing] any obstacle in the way of the maintenance, love and affection of the children for the defendant," or to "hinder, impair or prevent the growth of a close relationship between the children and their parents, respectively, or cause others to do so." Moreover, in sharing joint legal custody of the children, she was specifically required to consult with the defendant regarding decisions affecting the children's education, health and religion. That Stipulation also clearly provided that each of the parties was to "exert every effort to maintain free access and unhampered contact," "to foster a feeling of affection," and not to "do anything which may estrange the children from [the defendant] or injure the children's opinion as to the Father which may hamper the free and natural development of the children's love and affection for the [Defendant]."

To sustain the defendant's application regarding contempt, he must demonstrate that the plaintiff has violated a clear and unequivocal court order which actually defeated, impaired, impeded or prejudiced the other party's rights (see, Great Neck v. Central, 65 AD2d 616) or were calculated to affect those rights (Stempler v. Stempler, 200 AD2d 733). The movant must meet this burden by clear and convincing evidence (Bulow v. Bulow, 121 AD2d 423). The Court may not hold a party in contempt where payment may be enforced by other enforcement procedures (Wiggins v. Wiggins, 121 Ad2d 534), unless such remedies would be an exercise in futility or ineffectual (Farkas v. Farkas, 209 AD2d 316). Upon a finding of contempt, the Court may impose a period of commitment to jail (Powers v. Powers, 86 NY2d 63) or fine, or both.

In this instance, a lawful court order, in the form of a Judgment of Divorce incorporating the parties' stipulation of settlement, was in effect. The plaintiff was shown to have actual knowledge of its terms. Ottomanelli v. Ottomanelli, 17 AD3d 647; Freihofner v. Freihofner, 39 AD3d 465; Kawar v. Kawar, 231 AD2d 681, 682. This order of parental access was not only in effect before and during the hearing, but unsuccessful efforts were made during the course of the hearing to utilize counseling and parenting coordination to remediate the alienating conduct of the plaintiff. See, Lew v. Sobel, 46 AD3d 893. See, also, Judiciary Law §753; Massimi v. Massimi, 56 AD3d 624.

CONTEMPT

The Court's findings here were based, in part, upon an assessment of the credibility of the witnesses and their character, temperament and sincerity. Matter of Carl J.B. v. Dorothy T., 186 AD2d 736; see, also, Klat v. Klat, 176 AD2d 922; Leistner v. Leistner, 137 AD2d 499. I have also considered the extensive post-hearing submissions of each of the parties and the attorney for the children.

Here, the defendant's burden of proof in this matter was met so overwhelmingly, as to exceed the burden of proof required (see, Bulow, supra). Instead, it was proven "beyond a reasonable doubt" [cf., Rubackin v. Rubackin, 62 AD3d 11]. The acts perpetrated by the plaintiff were not only in willful violation of the Stipulation of Settlement, as incorporated into the Judgment of Divorce, but such as to demonstrate a continuing and calculated effort to violate the parental access of the defendant to the infant issue. The movant here demonstrated that the plaintiff violated a clear and unequivocal Court order, thereby prejudicing his rights. See, Judiciary Law §753[A][3]; Vujovic v. Vujovic, 16 AD3d 490. The specific findings of fact are detailed herein, and considering the extent, nature, and continuing pattern of alienation perpetrated by the plaintiff, it is clear that plaintiff's conduct was calculated to and did, in fact, impair, impede or prejudice the rights and remedies of the defendant herein. See, Silverman v. Silverman, N.Y.L.J., 11-22-95, p. 26, col. 1; McCain v. Dinkins, 84 NY2d 216; Hoglund v. Hoglund, 234 AD2d 794.

FACTUAL FINDINGS ANDINSTANCES OF ALIENATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHANGE OF CUSTODYPROCEEDING TO BE HELD

There was no request in the moving papers for a change of custody. During the course of the extensive hearing held before me, application was made by the defendant for an immediate change of custody. It is improper for a trial court to take action and grant relief without appropriate notice to one of the parties affected. Such notice during the course of the proceeding for undemanded relief does not constitute adequate notice, and could serve to prejudice the plaintiff. Siegel Practice Commentary, McKinney's Consol. Law of New York, Book 7B, CPLR 3017.6. The Court did not grant the relief for a change in custody in the course of the hearing for contempt. However, Domestic Relations Law §240 provides that upon an application, the Court may modify a previous direction with respect to the right of visitation "after such notice to the other party… .and given in such manner as the Court shall direct." See, Domestic Relations Law §240. The request for a change in custody during the course of the contempt hearing clearly has provided adequate notice by which to schedule a hearing. The request during the hearing to amend the motion to conform to the evidence presented at this hearing, is now granted, to the extent of ordering a prompt hearing on a modification of custody. Heintz v. Heintz, 28 AD3d 1154; cf. Sipos v. Kelly, 66 AD2d 1022. See, also, Fisk v. Fisk, 274 AD2d 691.

The parties are to appear before me on June 4, 2010 to be heard on selection of a forensic examiner and to be heard on allocation of fees. See, Uniform Rules §202.7; also see, Ragone v. Ragone, 62 AD3d 772; Domestic Relations Law §237(d)(4). The scheduling of the modification of custody hearing will be facilitated at that time.

THE COURT'S ROLE INADDRESSING ALIENATION

Differing "alienation" theories promoted by many public advocacy groups, as well as psychological and legal communities, have differing scientific and empirical foundations. However, interference with the non-custodial parent's relationship with a child has always been considered in the context of a "parent's ability to encourage the relationship between the non-custodial parent and a child," a factor to be considered by the Court in custody and visitation/parental access determinations. See, Eschbach v. Eschbach, supra. Our Appellate Courts recognize such factor, as they have determined that the "interference with the non-custodial parent and child's relationship is an act so inconsistent with the best interests of a child, as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent." See, Leistner v. Leistner, 137 AD2d 499; Finn v. Finn, 176 AD2d 1132, 1133, quoting Entwistle v. Entwistle, 61 AD2d 380, 384-385, appeal dismissed 44 NY2d 851; Matter of Krebsbach v. Gallagher, 181 AD2d 363, 366; Gago v. Acevedo, 214 AD2d 565; Matter of Turner v. Turner, 260 AD2d 953, 954; Zeiz v. Slater, 57 AD2d 793.

Where, as in the instant case, there is a finding of a willful violation of a court order demonstrated by a deliberate interference with a non-custodial parent's right to visitation/parental access, the IAS Court, as a general rule, must schedule an evidentiary hearing before making any modification of custody. See, Glenn v. Glenn, 262 AD2d 885. See, also, Entwistle v. Entwistle, 61 AD2d 380; Young v. Young, 212 AD2d 114; Matter of LeBlanc v. Morrison, 288 AD2d 768, 770, quoting Matter of Markey v. Bederian, 274 AD2d 816; Matter of David WW v. Lauren QQ, 42 AD3d 685; Goldstein v. Goldstein, 2009 N.Y. Slip Op. 08995 [Dec. 1, 2009].

SENTENCE

An imposition of sentence upon a finding of contempt should contain a language permitting the contemnor an opportunity to purge. See, Heyn v. Burr, 19 AD3d 896; Stempler v. Stempler, 200 AD2d 733; Cooper v. Cooper, 21 AD3d 869. Under the circumstances here, where determination is made of a past violation of an order of parental access/joint custody, there can be no purge since it is no longer within the plaintiff's power to perform the act. See, Kruszczynski v. Charlap, 124 AD2d 1073; Young v. Young, 129 AD2d 794. Moreover, the use of remedial intervention - - parenting coordination/counseling - - during the course of the trial was unsuccessful, and even if re-utilized here, the Court cannot condition release from imprisonment upon future compliance. See, Martinez v. D.S.S., 44 AD3d 945.

Accordingly, and after careful consideration of the circumstances of the nature and extent of the multiple instances of violation of the court order, the plaintiff is sentenced to a period of incarceration for six weekends, to be served on the first and third weekends of each month for the months of June, July and August, 2010. Prior to these weekends of the plaintiff's incarceration, she shall transport the children to the defendant's home to assure their continued care and well being. See, Marallo v. Marallo, 128 AD2d 710; Gordon v. Janover, 238 AD2d 545; Munz v. Munz, 242 AD2d 789; Kruszczynski v. Charlap, supra; Barcham-Reichman v. Reichman, 250 AD2d 609.

COUNSEL FEES

Given the finding of a willful violation of the Judgment of this Court (Stack, J.) Dated March 26, 2004 [erroneously dated as 2003], and given the fees requested ($134,352.92 for defendant's counsel, $11,287.50 for Attorney for the Children's fees, and $19,833.32 for Parenting Coordinator fees, shall be the object of a hearing to be held before me on June 4, 2010. While the parties consented to such determination on submission, the issues presented lend themselves to the Court's assessment of the parties' finances. To facilitate a complete record, a hearing is ordered herewith. See, Judiciary Law §773; Gordon v. Janover, supra.

On the Court's own motion, this decision and order will be stayed until June 4, 2010 to afford the plaintiff an opportunity to seek Appellate Review, if so advised, and it is

ORDERED, that the plaintiff, L. R., is adjudged to be in civil contempt of the Judgment of Divorce dated March 26, 2004; and it is further

ORDERED, that the parties and their counsel shall appear before me for sentencing on June 4, 2010 at 9:30 a.m., which date may not be adjourned without written order of this Court; and it is further

ORDERED, that the plaintiff, L. R., is sentenced to a period of six weekends imprisonment in the Nassau County Correctional Facility, pursuant to the schedule set forth herein; and it is further

ORDERED, that this order and execution of this sentence shall be stayed until June 4, 2010; and it is further

ORDERED, that this decision shall be deemed an order and/or warrant of commitment pursuant to and in accordance with Judiciary Law §772; and it is further

ORDERED, that a copy of this Decision and Order shall be served upon the Sheriff of Nassau County and/or the Warden of the Nassau County Correctional Facility to facilitate the schedule of weekend incarceration, to be imposed as follows:

Friday, June 11, 2010 at 6:00 p.m. to Sunday, June 13, 2010 at 6:00 p.m.;

Friday, June 25, 2010 at 6:00 p.m. to Sunday, June 27, 2010 at 6:00 p.m.;

Friday, July 9, 2010 at 6:00 p.m. to Sunday, July 11, 2010 at 6:00 p.m.;

Friday, July 23, 2010 at 6:00 p.m. to Sunday, July 25, 2010 at 6:00 p.m.;

Friday, August 6, 2010 at 6:00 p.m. to Sunday, August 8, 2010 at 6:00 p.m.;

Friday, August 20, 2010 at 6:00 p.m. to Sunday, August 22, 2010 at 6:00 p.m;

and it is further

ORDERED, that this Court finds that the conduct of the plaintiff was calculated to, or actually did, defeat, impair or prejudice the defendant's rights or remedies.

This constitutes the decision and order of this Court.

1. This witness retired from his position, and returned to New York to testify at this hearing.

Decision of the Day

Family Law

203699-02

Supreme Court, Nassau County

Decided: May 25

Al and Tipper Gore made the shocking announcement that they are going to separate after 40 years of marriage.  This separation comes as such a surprise not only because Al and Tipper seemed to epitomize wedded bliss, but also because they are splitting up at such late stages in their lives.

Usually divorces occur either during the first two years of marriage or between the fifth and seventh year.  After a long- term marriage, such as Al and Tipper's, the couple's lives are intertwined-- the spouses share a home and there are children and grandchildren.  To most, a divorce at that point just seems inconvenient.

While some might scratch their heads at the thought of divorcing after the age of sixty, divorce lawyers are unmoved by the age at which Al and Tipper decided to part ways.  Divorce attorneys have recently been witnessing the steady increase in the divorce rate among people in their 40s, 50s, and 60s.

Due to developments in science and medicine, people's life spans have been extended.  These longer life spans encourage married couples to choose divorce so late in life.  These extra years are an opportunity to find someone new, to gain a sense of individual freedom, or to just enjoy one's retirement years without the unpleasantness of arguing with a spouse.

With longer and healthier lives, late-life divorces are growing to be more and more accepted.  Having been a well -known couple, Al and Tipper have enlightened the public and shed light on this developing trend.

Social media websites, such as Facebook, contain a bounty of personal information. Thus, according to CNN.com's "Divorce Attorneys Catching Cheaters on Facebook," these websites have become an effective tool for divorce attorneys, who are looking to dig up dirt on their clients' spouses.  Divorce lawyers can easily access one's Facebook page.  For example, lawyers use websites like Flowtown.com, on which they can type in an email address and subsequently view various social media profiles; or, the attorney could find one's profile by hiring a private investigator.

Once attorneys gain access to a profile, they scroll through wall posts and personal information, read status updates, and sift through photos to find any kind of evidence that catches the client's spouse in a lie.  Mutual friends of the spouses are usually the most valuable resources.  Most often, while the couple is going through a divorce, they de-friend each other, but they forget about their mutual friends.  These shared friends "can play detective" and obtain information from either spouse's profile.

As a result of "social media stalking," divorce attorneys are able to poke holes in the credibility of the client's spouses.  With the information that an attorney retrieves from a social media website, whether it be uncovered affairs or the exhibition of unacceptable behavior online, the lawyer could sway the outcome of the entire trial.  

According to a professor of psychology at Bridgewater College in Massachusetts, people do not see the harm in displaying information online because they believe that no one would ever really look at it.  Nevertheless, the number of divorce cases that utilize social media sites have spiked over the last five years.  In order to protect one's information, one must become familiar with privacy settings.

For those who use Facebook and are going to be involved in a divorce or custody battle, double check your profiles, edit them, tighten their privacy, be careful of what you post, and take heed of Facebook friends who might not truly be your friends.  Or, to undoubtedly ensure the protection of your personal information, it would be easiest to just deactivate your Facebook account.

For the past twenty-five years, New York has been the only state in the country without a no-fault--irreconcilable differences--divorce.  It seems as that may finally change as a bill that aims to reform domestic relations law, by adding irreconcilable differences as a ground for divorce, has advanced in the state Senate Judiciary Committee this week.

Another bill approved by the Senate committee would create guidelines for determining the amount and duration of maintenance payments to the "non-monied" spouse.  However, Judges would have discretion to depart from the guidelines if they state their rationale in writing.

Currently, a divorce can only be granted if a plaintiff alleges and proves one of the five grounds contained in Domestic Relations Law section 170 such as abandonment, adultery, and cruel and inhuman treatment. David King, of The Gotham Gazette, writes that "proponents of no-fault divorce say that forcing couples to accuse each other of wrongdoing, abuse, infidelity, neglect, can make a difficult process even worse -- not only for the couple but for the children involved and also can lead to tremendous legal costs.  'No one cares about no-fault divorce until their marriage is falling apart and they find out, "Oh, my god, there is no no-fault option",' said Sen. Liz Krueger, who supports the Hassell-Thompson legislation. 'Couples find out they have to allege something that may not really be true.'"

With the change in law, a party can simply allege that irreconcilable differences have arisen and there is no prospect of reconciliation.  If a couple lives separate and apart for a period of one year, there is a presumption that there is no prospect of reconciliation.  This ground will enable a party to obtain a divorce without proving fault, instead, the party will establish that the marriage is over and there is no prospect for reconciliation.

According to King, Assemblymember Jonathan Bing replied that "the legislation will decrease domestic violence by helping the abused partner get out of a bad marriage quickly. 'I think for years there was concern that women in a lesser financial situation than their spouse would be in a bad position,' said Bing, 'But we've seen it work in other states, and it has reduced rates of domestic violence and the cost of divorce, because people aren't spending years in litigation.'"

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

New Rule In Divorce Actions

Recently a new rule has gone into effect for matrimonial cases. Starting September 1, 2009 automatic orders will now go into effect whenever someone is served with both a summons and a copy of the automatic orders. These automatic orders are largely concerned with preserving the status quo of the parties' finances. The orders are both relatively simple and at the same time encompass much of what could be done by one party to financially harm the other.

The orders are broken down into five sections; the first restricts a party from disposing of property in any way without the court's or parties' consent. The second restricts any funds, stocks or other assets from being disposed or altered. The third section prevents unreasonable debts from being incurred against the parties' interests or property. The fourth section mandates that all health insurance policies be maintained and unaltered for the parties and their families. The fifth section mandates that all life, home and auto insurance policies will be maintained and unaltered.

These automatic orders should lower the need for early motions to restrict such funds and property in divorce actions. They may also change the calculus for when a lawyer seeks to serve the summons and automatic orders. Below is the full text of the Amendment of the Rule.

AMENDMENT OF RULE

Uniform Civil Rules for the Supreme and County Courts

Pursuant to the authority vested in me, and with the advice and consent of the Administrative Board of the Courts, I hereby promulgate, effective September 1, 2009, new section 202.16-a of the Uniform Civil Rules for the Supreme and County Courts, relating to automatic orders in matrimonial actions, to read as follows:

§ 202.16-a Matrimonial Actions; Automatic Orders

(a) Applicability. This section shall be applicable to all matrimonial actions and proceedings in the Supreme Court authorized by section 236(2) of the Domestic Relations Law.

(b) Service. The plaintiff in a matrimonial action shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in this section in a notice that substantially conforms to the notice contained in Appendix F. The automatic orders shall be binding upon the plaintiff immediately upon filing of the summons, or summons and complaint, and upon the defendant immediately upon service of the automatic orders with the summons.

(c) Automatic Orders. The automatic orders served with the summons
shall provide as follows:

(1) Neither part shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in
connection with this action.

(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or
upon further order of the court.

(3) Neither party shall incur unreasonable debts hereafter, including but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action.

(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.

(5) Neither party shall change the beneficiaries of any existing
life insurance policies, and each party shall maintain the existing life
insurance, automobile insurance, homeowners and renters insurance
policies in full force and effect.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

The evolution of Same-Sex Marriage has been a complicated process. Same-Sex Marriage is now legal in some of New York's closest neighbors:  Massachusetts, Vermont and New Hampshire as well as throughout Canada. This has lead to a situation where New York now recognizes Same-Sex marriages from other jurisdictions, albeit not allowing such marriages within the state. The expansion of Same-Sex marriage has brought with it all of the other issues that have always been a part of marriage. These issues involve the law in a number of practice areas, but mainly in matrimonial and familial practice. The article below describes the development of the law in this area, and gives some insight into how a practitioner should handle a client involved in a Same-Sex marriage.

New York Law Journal
As the Same-Sex Landscape Evolves
Prepare to serve this new group of clients.

By Arlene G. Dubin and Sheila Agnew

August 10, 2009

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

With such a limited number of Judges involved in Matrimonial law, Judge shopping is a serious concern. In a recent Suffolk County Court Decision, Justice Donald Blydenburg held that when it appeared a party to a matrimonial action switched attorneys only to cause the presiding judge to recuse himself, that the Judge did not have to recuse himself. Instead Judge Blydenburg ordered the party to hire a new attorney. This decision gives fair warning to those who would try to attempt similar types of Judge shopping. A New York Law Journal article below outlines the decision.

New York Law Journal
Court Calls Bid for New Lawyer 'Impermissible Judge Shopping'

By Vesselin Mitev

A state judge has rejected a Long Island man's attempt to hire a new attorney as "impermissible judge shopping" because the judge had previously reported the attorney to the grievance committee for an alleged disciplinary violation.

In a strongly worded ruling in response to the attorney's request for the judge's recusal in the matrimonial action, Suffolk County Supreme Court Justice Donald R. Blydenburgh (See Profile) said, "The appearance of impermissible and inappropriate Judge shopping is present and the prejudice to the Plaintiff far outweighs Defendant's right to this specific counsel."

The judge ordered the defendant, Salvatore Romanello to hire a different attorney in Gaffney-Romanello v. Romanello, 21508/07.

The Suffolk County Supreme Court decision appears on page 39 of the print edition of today's Law Journal.

Erin Gaffney-Romanello had sued her husband for divorce in 2007 but by 2009 the parties appeared on the verge of settling.

Starting in January 2009, several scheduled conferences were postponed, as the parties told the court they had "reached a settlement" and requested additional time to finalize the deal, according to the decision.

In April 2009, Mr. Romanello fired Schlissel Ostrow Karabatos, the Garden City firm that had been representing him, and retained James F. Hagney, a partner in Reynolds, Caronia, Gianelli, Hagney & La Pinta in Hauppauge.

Mr. Hagney had previously appeared before Justice Blydenburgh in an unrelated matter, where a litigant alleged that Mr. Hagney had violated the attorney disciplinary rules. The decision did not elaborate on the alleged violation.

As a result, Justice Blydenburgh "was compelled to forward the allegation to the Grievance Committee" and had to recuse himself from cases handled by Mr. Hagney while the grievance is pending.

"This recusal has been limited to Mr. Hagney personally, and the Court inquires of Mr. Hagney on the record each time he appears if he intends to represent that particular client, as opposed to his partners," the judge wrote.

Representing Mr. Romanello in April, Mr. Hagney and one of his partners, Peter Caronia, appeared before Justice Blydenburgh and sought his recusal.

The judge declined, writing that doing so would "constitute, in this Court's opinion, impermissible Judge shopping by Defendant of a case that is ready for trial, but represented to have already been settled by the parties."

Ms. Gaffney-Romanello's attorney, Michael P. Vessa, objected to the recusal as well, arguing that he believed the matter was settled based on his prior dealings with Mr. Romanello's former counsel.

Acknowledging that the "right to counsel is absolute," the judge refused to step aside, and cited People v. Mackey, 572 NYS 2d 424, for the proposition that there is no right to specific counsel of one's choice.

In Mackey, the Appellate Division, Third Department, held that an attorney who had "longstanding difficulties" before the judge assigned to the case was properly disqualified and recusal of the judge was inappropriate, given the judge's "intimate involvement in the matter almost from its inception and [the new attorney's] status as a newcomer to the proceedings."

The judge also pointed to a federal ruling, In re FCC v. Nextwave Personal Communications Inc., 308 F3d 137, where the U.S. Court of Appeals for the Second Circuit held that "we expect that lawyers will take pains to avoid appearing in any case in which their appearance may cause disqualification of a Judge assigned to the case."

To avoid disqualification, Justice Blydenburgh asked whether Mr. Hagney's partners or associates could handle the case, noting that Mr. Caronia is a "well respected matrimonial attorney" and pointing to two other lawyers, Catherine Miller and Dawn Hargraves, who are affiliated with the firm and handle matrimonial matters.

Mr. Hagney replied that only he would be working on the case, prompting his disqualification, the judge wrote.

"Clearly the Defendant, who had previous counsel...hired Mr. James Hagney solely to forum shop," Justice Blydenburgh held, in staying the case until September so Mr. Romanello can find a new attorney and get ready for trial, now set for Feb. 1, 2010.

In an interview, Mr. Vessa, of Vessa & Wilensky in Garden City, said the judge "did the right thing in view of the circumstances."

Mr. Hagney could not be reached for comment.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

When legislators and Judges craft laws and orders they often seek to make rules that are permanent and unchanging. The problem is that life is predictably unpredictable. So many divorce cases that were ended when the economy was strong and people were making a large amount of money are no longer equitable in a world where salaries have dropped precipitously, but expenses have remained high. Many agreements that once made sense, are now overly burdensome for the payer. Due to changes in income the courts have become flooded with requests for modifications of agreements. The article below from the New York Law Journal outlines these problems and gives some insight onto how these requests for modifications are being handled by the courts.

Is our law equal to the challenge of today?

By Harriet Newman Cohen and Tim James

The past year has been a time of drastic economic decline, with millions losing jobs, real estate and stock values plunging, businesses performing far below accustomed levels, investment funds exposed as Ponzi schemes and the reduction or elimination of year-end bonuses in fields where such bonuses are typically the major part of total compensation. One result has been an increased number of applications for downward modification of support obligations.

A March 28, 2009, New York Times article captured the zeitgeist in describing the alarming number of new modification cases, both among the marginal earners and the wealthy, that are overwhelming the Family Court calendars.

This article explores the statutory and case law governing applications for downward modifications of established maintenance and child support. It also asks the question, "Is our law as promulgated and defined through case law equal to the challenge of these economically troubled times?"

The Governing Law

Domestic Relations Law (DRL) §236(B)(9)(b) provides that a court "may annul or modify any prior order or judgment as to maintenance or child support upon...a substantial change in circumstances." But a stronger showing is required to obtain a modification of child support or maintenance when the amounts to be paid have been set by the parties themselves, in an agreement, incorporated in, but not merged with, a judgment of divorce, or resolving a support proceeding.

In Boden v. Boden, the New York Court of Appeals established the preferred status of agreements between the parties on such matters, declaring:

Where, as here, the parties have included child support provisions in their separation agreement, the court should consider these provisions as [contracts] between the parties and the stipulated allocation of financial responsibility should not be freely disregarded....Absent a showing of an unanticipated and unreasonable change in circumstances, the support provisions of the agreement should not be disturbed.

DRL 236(B)(9)(b) ratchets the standard up even higher with respect to modifications of maintenance established by agreement of the parties, specifying that "no modification of a prior order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party[.]" (Emphasis added.) Where the requisite showing is made, the court may modify the maintenance provision "for such period of time and under such circumstances as the court determines."

Five years after Boden, in Brescia v. Fitts, the Court of Appeals made it clear that the requirement of showing an "unreasonable and unanticipated change of circumstances" to obtain a modification of child support applies only "when the dispute is directed solely to readjusting the respective obligations of the parents to support their child," and not where "the child's right to receive adequate support is at issue."

In the latter case, a court is free to exercise its discretion in determining how much child support is required to ensure that the child has adequate support and order an upward modification consistent with that determination. It is applications for downward modifications, however, that are the focus of this article.

Malingerers Beware

In the decades since Brescia and Boden, the courts have established demanding standards for downward modifications of spousal and/or child support.

Regardless of whether relief is sought from the mandate of a court alone or from the provisions of an agreement between the parties, the courts, wary of malingerers, have looked to the payor's "capacity to generate income" (Michelle F.F. v. Edward J.F., Jr., O'Brien v. McCann) or, more broadly, his or her "ability to provide support" (Freedman v. Hornike).

Thus, the courts require that a payor seeking a downward modification based on the loss of a job or decreased income demonstrate that his unemployment or underemployment was not of his/her own doing, and that he/she has made diligent efforts to find appropriate alternative employment. Movants who fail to do so typically see their motions denied.

In the recently decided Krup v. Fehr, however, Justice Jeffrey S. Sunshine gave the movant father a second bite of the apple. (See also Lonsdale v. McEwen, discussed below.) At issue was the $2,000 per month in child support that the father had agreed to pay for one child under a stipulation entered into when he was earning $170,000 a year. There was no dispute that his income had decreased to $90,000 at the time he made the downward modification motion.

The judge granted the father's application to the extent of ordering an evidentiary hearing based, among other things, on the father's failure "to offer any evidentiary support for his assertion that this decrease in earnings was not of his own making." The judge also directed that there be pre-hearing discovery. The decision provides a virtual primer on the case law governing downward modifications.

Although the court's focus is typically on changes in the payor's financial circumstances, changes in the financial circumstances of the payee may also be relevant on a motion for downward modification of maintenance or child support. For example, the wife's having gained employment was cited as a factor, or the factor, warranting a reduction in the maintenance amounts awarded in the judgment of divorce in Cross v. Cross, Bofford v. Bofford and Lipow v. Lipow.

The courts have emphasized repeatedly that, on any motion for downward modification of maintenance or child support based on the finances of the payor, a determination as to whether the requisite "change in circumstances" has been shown requires "comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order or judgment."

In making that comparison, the courts are concerned not just with the payor's income but with his or her overall financial circumstances (including assets and ability to maintain his/her own lifestyle in the face of alleged financial hardship) as indicia of the payor's ability to continue paying maintenance or child support at the same level.

'Unanticipated' Is a Must

Case law dating back to Boden establishes that where a party seeks modification of child support provisions contractually agreed to by the parties, the "change of circumstances" sufficient to satisfy the modification standard must have been "unanticipated" at the time of the agreement.

The courts have typically treated loss of employment as "unanticipated" without much discussion of the point. However, there have been cases in which the courts have held that the loss of employment was not an unanticipated change of circumstances.

For example, in Ellenbogen, the movant's business "had already experienced a precipitous decline in profitability and the loss of a major client at the time he entered into the stipulation," and in Commissioner of Social Services, the movant was on notice for eight years that he would lose his teaching license if he failed to obtain a master's degree; accordingly, his loss of his license for failing to obtain that degree was not unanticipated.

Showing, however, how fact-specific these cases are is Lonsdale v. McEwen. There, the separation agreement incorporated into the judgment of divorce specifically provided for a reduction in basic child support from $48,000 per year to $33,600 per year in the event that the father's income ($1.3 million per year at the time of the separation agreement in late 2001) should fall to $600,000 or less. The majority held that the father was entitled to a hearing on his motion, where "the parties to the agreement anticipated the loss of defendant's lucrative position but neither anticipated nor addressed either a prolonged period of unemployment or so huge a reduction in salary."

In late 2002, less than a year after the agreement was made, the father had lost his job. He was unemployed for most of 2003 and 2004. He had total income during those two years of only about $150,000, including the payments he received in 2004 from the job he got towards the end of that year which would pay him $200,000 a year prospectively.

The two dissenters, agreeing with the court below, would have denied the downward on the papers and without a hearing, as the father's loss of his job and the drastic reduction in income he suffered was far from "unanticipated" in that the parties had expressly contemplated that possibility and provided for it.

Successful Motions

If a downward modification movant has cleared all of the hurdles discussed above, the outcome of the motion will turn on whether the court views the change in circumstances as sufficiently "substantial," "unreasonable" or "extreme-hardship"-inducing (depending on which standard applies) to warrant a modification. Sometimes the court will grant but time-limit the relief.

This happened in A.R. v. N.R., where the court found that the husband had made a showing of "extreme hardship" in support of his motion for downward modification of both his maintenance and child support obligations (totaling $84,000 per year) under a separation agreement. The husband had suffered a "drastic reduction in income, from $300,000 per year at the time of the divorce to $66,000 per year (a 78 percent drop), through no fault of his own."

The court rejected the wife's contentions that the husband was living a "high lifestyle" and had "undisclosed cash," or more income than he claimed. But finding that the husband's prospects for the future were good, the court fashioned a creative decision, opting to grant a 13 1/2 month suspension of maintenance payments and a short (1/2 month) reduction of his child support obligation instead of a permanent modification.

Similarly, in Sheila C. v. Donald C., the court affirmed a one-year reduction in the movant's maintenance payments, holding that: "Respondent satisfied the extreme hardship standard. However, because he did not prove that his income will never recover, his request for a permanent reduction of his maintenance obligation was properly denied."

Applicant Beware

But if the downward circumstances are of the payor's own making, the court will not grant relief. So where an orthopedic surgeon decided to take an academic position in place of his former private practice, the court would not grant relief, finding that the reduction in his income was of his own doing.

But even apart from that issue, the court found the 31 percent decrease in the surgeon/former husband's income from $134,000 a year to $91,000 insufficient to establish the "extreme hardship" required to warrant a downward modification of the agreed-upon maintenance in light of, inter alia, his "comfortable, even luxurious lifestyle," his recent purchase of a house for $220,000 and his "not insubstantial" $91,000 income.

And job losses alone will not make an "involuntary, unreasonable change in financial circumstances" sufficient to warrant a downward modification, as the former husband learned in Cox v. Cox. He sought to be relieved of his $1,650-per-month child support obligation under a stipulation of settlement, pointing to the loss of his job with Verizon in late 2008, his new wife's loss of her job with Verizon at the same time and the fact that the $1,650 per month he was paying in child support now constituted 95 percent of his $1,741 per month in unemployment benefits. The court denied the relief, on the reasoning that:

• The payee wife, with whom the parties' daughter was residing in Florida, earned about $31,000 per year at her job.

• The husband had earned $318,000 in 2007 from his employment with Verizon, almost $200,000 more than his income of $123,000 for 2004, as stated in the stipulation of settlement the parties signed in December of that year.

• The husband and his new wife had earned a combined $414,000 from their employment with Verizon in 2007, and in that same year had received $498,000 for the sale of Verizon stock, bringing their gross income for the year to $912,000.

• The husband alone had been paid $476,000 by Verizon in 2007, leading the court to conclude that he had probably received a severance payment of approximately $150,000.

The Catch-22

Because of the requirement that a movant for downward modification based on the loss of a job demonstrate that he or she has made diligent efforts to find new employment, some delay in moving is probably necessary in order to make a facially sufficient motion.

But such a delay can be costly where child support is concerned, because, statutorily, child support continues to accrue until the date on which an ultimately successful motion for downward modification is made, and once that obligation has been incurred, the courts can provide no relief from it.

DRL 236(B)(9)(b) provides that "[N]o modification or annulment shall reduce or annul any arrears of child support which have accrued prior to the date of application to annul or modify any prior order or judgment as to child support" (emphasis added). As the Court of Appeals explained in Dox v. Tynan.

Child support arrears must be awarded in full, regardless of whether the defaulter has good cause for having failed to seek modification prior to their accumulation. "If a party obligated to pay child support wishes to avoid making payment, such as where his or her financial circumstances have deteriorated, that party must make an affirmative request for relief" (Scheinkman, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law §244, at 752).

In May of this year, the Court of Appeals stressed the "strong public policy against restitution or recoupment of [child] support payments." Thus, every day of delay before moving for modification is another day to which any downward modification ultimately granted will not apply. And yet, to file before having established a record of diligent pursuit of new employment is to invite dismissal of the motion as facially defective.

So, Set Your Own Standards

Looking forward, divorcing parties (payors and payees) can achieve far greater flexibility with respect to the availability of modifications that take into account the ups and downs of life by agreeing, in a separation agreement or stipulation of settlement, to standards of their own choosing for modification.

In Vincent Z. v. Dominique K., the First Department reversed the Family Court and gave the father a downward modification based on the standards the parties had set for themselves, citing its earlier reasoning in Colyer v. Colyer that "parties to a separation agreement may contractually provide for a support modification on a lesser standard than legally required."

Law Is Malleable, Pragmatic

Wary of opening the floodgates too wide and thereby inviting constant litigation over the reasonableness of maintenance and child support obligations that have already been fixed, the Legislature and the courts set high standards that make successful applications for downward modifications the exception, rather than the rule.

But the law as defined over the years has within it all of the elements necessary to meet the economic crisis facing us today: hardship, unforeseeability, being in extremis. The challenge for our courts is, as always, to weed out the malingerers and to provide relief where appropriate. The law, as written and interpreted, is sufficiently malleable and pragmatic, not dogmatic, to mete out justice, even in these economically troubled times.

Harriet Newman Cohen is a member and Tim James an associate in Cohen Hennessey Bienstock & Rabin. Ms. Cohen is the co-author of 'The Divorce Book' (Avon Publishers, 1994).

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

Times are tough, our financial markets are in shambles, the auto industry is emerging from a historic bankruptcy, unemployment is high and home prices have collapsed. These tough times has also created an anomaly in the world of divorce, where people who want to get divorced are being forced by their financial situation to stay together. The below article, which recently appeared in the Wall Street Journal, relates the story of several couples who either plan on getting divorced or are in divorce proceedings. These couples have decided that though they no longer want to be together, that they are better off cohabiting until the housing and job markets both turn around. It will be interesting to see how the ongoing economic downturn will continue to effect divorces.

Wall Street Journal

What God Has Joined Together, Recession Makes Hard to Put Asunder
For Some, the Downturn Keeps Divorce on Ice; Ms. Brewster, Husband Share a House Divided

July 13, 2009
By JENNIFER LEVITZ

Rhonda Brewster and her husband have decided they don't want to be married to each other anymore. But while they're ready to move on, they still can't move out.

They don't want to sell their home, in Huntsville, Ala., in a down market. They can't afford two households until Ms. Brewster finds steady work. So for now, they are living under the same roof but on separate floors.

The "kids are OK with it." says Ms. Brewster, a 39-year-old freelance writer and stay-at-home mother. "They just know that mommy lives upstairs and daddy lives in the basement."

Unwinding the ties of matrimony is rarely simple or inexpensive, but for many couples, the sour economy is complicating the process further.

Divorce lawyers say many couples are delaying the decision to dissolve marriages and are staying in unpleasant situations for fear of being on their own at a time of economic uncertainty. Others are being forced to live together after the divorce is final for financial convenience. That can strain the emotions and result in awkward negotiations about subjects like dating.

In Nashville, Tenn., Randy and Lori Word jointly filed for divorce in February, after 10 years of marriage, and expect to get a court date this summer. Meanwhile, they continue to share a house while Ms. Word -- who had been a stay-at-home mother in recent years -- tries to find work in marketing. "I don't see jobs out there," she says.

Things are getting a little cramped in the house. Mr. Word, a 36-year-old construction-project manager, keeps his clothes in boxes in the study and sleeps in the living room. "Luckily, we bought a very nice couch two years ago," he says.

Ms. Word, who is 37, works part time as a waitress while she is searching for full-time work. Some nights she returns home from a shift to find Mr. Word in the bed complaining that his back can't take another night on the couch -- and asking her to please sleep in the living room, which she does.

Both say they are actually getting along better now that they are no longer in an emotional marital relationship.

"We're a lot kinder to each other," says Ms. Word, adding, "We're not so offended and bothered by each other." Mr. Word says, "We've actually developed or redeveloped a friendship that I think had gotten lost a little bit."

A May survey by the Institute for Divorce Financial Analysts, a national organization for financial professionals who work on divorce cases, found that the recession was delaying divorces, and inspiring "creative divorce solutions" in living arrangements.

"People are saying, 'I've put up with it for the last 10 years, I can put up with it for another year,'" says Gary Nickelson, president of the American Academy of Matrimonial Lawyers. In a poll of 1,600 of its members, the group says, respondents estimated that divorce cases in the six months through March were off 40% from normal levels.

It's still unclear how the recession is affecting divorce rates overall, because of lags in government data. But courts in some major population centers say fewer people have been filing for divorce since the downturn began in late 2007. In New York County 9,349 couples filed for divorce in the first four months of 2009, off 14% from 10,848 in the same period in prerecessionary 2007, according to records from New York State Unified Court System.

In Los Angeles County, divorce filings in the first four months of this year dropped 3%, to 9,048, from the same period last year and are down 9% from the comparable span in 2007, according to records from the Los Angeles Superior Court.

A lull in divorce could be a silver lining in the recession, says Steve Grissom, president of Church Initiative, a Wake Forest, N.C., organization that runs DivorceCare, a national support group. Mr. Grissom says couples who postpone splits may be able to work through problems and reconcile.

Bonnie Hughes, a 51-year-old financial planner, says she developed stomach problems when the real-estate slump turned her marital split into "the divorce that never ends."

She and her husband divorced in February 2007, but for financial reasons continued to live together in their house in Chattanooga, Tenn., until the following May. Ms. Hughes moved out, but the ordeal wasn't over. They put the house up for sale, with each planning to use the proceeds to finance the next stages of their lives, Ms. Hughes says, but "it just wasn't selling."

They finally sold in August 2008, after dropping the price by $100,000 to $324,000, which was less than they had paid for the place four years earlier. She used her proceeds to move to Atlanta.

In Alabama, Ms. Brewster and her husband say they are avoiding complications by sticking together even as they plan to part.

The couple decided in March to split after 16 years of marriage. Ms. Brewster has hired a divorce lawyer and says she has been advised to have as little interaction as possible with her husband. Both say reconciliation isn't in the cards.

But to afford two separate households, they either need to sell the house they bought four years ago -- which they don't want to do in a down market -- or wait until Ms. Brewster has steady income.

In the meantime, Ms. Brewster lives on two floors of the house, residing with the couple's two children, plus the family pets: a guinea pig, a squirrel, a dog, two rabbits, two gerbils, five cats and five lizards.

Her husband lives in the finished basement, formerly the family's game room. "We had to take down the pool table so he'd have a place to sleep," she says. He sleeps on an air mattress, and has his own entrance and a full bathroom, though his only cooking equipment is a microwave.

Each calls the other before entering their respective domains; they schedule use of the washer and dryer and negotiate evenings out, Ms. Brewster says.

"He still takes the garbage out and mows the lawn. Sometimes, I will call him and say, 'I know you're eating frozen dinners; I cooked extra, come up,'" Ms. Brewster says. "I try to take the high road in front of the kids. Goodness knows they've seen the bad side of marriage -- the arguing."

Both have resumed dating and have even given each other advice on how to get back into the singles world. Ms. Brewster took the photograph of her husband that he put on match.com, the online dating Web site. On some Saturday nights, she says, they hire a baby sitter so they can both go out, and they share their plans so they won't run into each other.

Their living situation has scared away some potential suitors. "It freaks a lot of them out," says Ms. Brewster. "I tell them upfront: Here's my situation. Eventually I will move on, but I'm not going to do something to mess myself up financially."

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.