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| 8 entries found. Viewing page 1 of 1. |
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| June 17, 2010 |
| No Fault Divorce is Moving Forward |
| Posted By Brian D. Perskin |
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| New York State has moved closer to enacting the no fault divorce law by overcoming the hurdle of passing in the Senate. The law would allow couples to be granted divorce without having to prove grounds like adultery or cruel and inhuman treatment. William Glaberson of The New York Times
writes:
The senate package passed 32-29 and also includes a measure that sets post-marital income guidelines for maintenance awards. It also contains a bill that creates a "rebuttable presumption" that a partner with disproportionately greater financial means should pay the legal costs of his or her spouse. The package now awaits Assembly approval.
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.
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| May 12, 2010 |
| The Significance of Signatures |
| Posted By Brian D. Perskin |
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SUFFOLK COUNTY
Supreme Court
Justice MacKenzie
SUMMARY
There is a bright line rule of law that an agreement lacking the proper acknowledgment is unenforceable. It is undisputed that the parties were married September 27, 2003 and separated January 5, 2007, and negotiated a Separation Agreement which was ultimately signed by defendant on September 12, 2007 and her signature properly acknowledged. Said agreement was forwarded to plaintiff who also signed but failed to have his signature properly acknowledged. Defendant received a copy of the agreement with plaintiff's unacknowledged signature approximately one year later with plaintiff's handwritten changes. Defendant notified plaintiff by letter dated September 15, 2008 of the acknowledgment issue, revoked her signature and objected to any attempt by plaintiff to remedy the invalid execution of the Agreement.
Plaintiff moves this Court for an order granting him summary judgment, divorcing the parties pursuant to DRL §170(6) and granting plaintiff an award of counsel fees. Alternatively, plaintiff seeks an order dismissing defendant's counterclaims for equitable distribution and maintenance and sanctioning defendant based on defendant's submission of an alleged false Statement of Net Worth. Plaintiff states that the parties entered into a Separation Agreement on September 12, 2007 and lived according to said agreement thereafter. Plaintiff states that upon notification by the defendant in a letter in September of 2008, wherein she revoked her signature and objected to plaintiff rectifying the problem, plaintiff realized that his signature was not properly acknowledged as per DRL §236(B)(3). Shortly thereafter, plaintiff had his signature acknowledged and filed the Agreement with the County Clerk on July 30, 2009. Accordingly, as the parties have lived separate and apart for over one year, plaintiff avers that a conversion divorce should be granted. Plaintiff argues that any efforts by defendant to abandon said Agreement and change the terms therein are meritless and nothing more than an opportunistic change in position. Plaintiff challenges defendant's Statement of Net Worth and her claimed income.Defendant cross moves for an order denying plaintiff's application; granting summary judgment in favor of defendant and dismissing plaintiff's first, fifth and sixth causes of action. Defendant states that she gave plaintiff the Agreement after she signed and acknowledged same and never received a copy of such from defendant until one year later. Further, defendant argues that plaintiff's subsequent acknowledgment is irrelevant as he did so only after she revoked her signature. Accordingly, defendant avers that a divorce can not be granted on the basis of an invalid agreement. Additionally, defendant asserts that the requests for counsel fees and sanctions must be denied as same are based on provisions contained in an invalid agreement.
Plaintiff argues that a subsequent acknowledgment is acceptable if such complies with DRL §236(B)(3). Further, plaintiff stresses that the parties lived in accordance with the Agreement thus ratifying same.
Defendant argues that plaintiff made notable changes to the Agreement upon receiving same from defendant and that the defendant was not aware of those changes. Finally, defendant reiterates that the Agreement was acknowledged by plaintiff only after defendant's revocation of her signature.
A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing a judgment in favor of any party (CPLR §3212(b)).
An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded (DRL §236(B)(3). An agreement lacking said acknowledgment prerequisite is unenforceable (Matisoff v. Dobi, 90 NY2d 127 (1997)). An unacknowledged nuptial agreement which is acknowledged on a subsequent date is enforceable in a matrimonial action if the later acknowledgment is in compliance with DRL §236(B)(3) (Arizin v. Covello, 17 Misc.2d 453 (NY County Supreme Court, 1998)). While a revocable offer to a bilateral contract may be revoked at any time prior to acceptance, that revocation or rejection is effective at the moment of receipt (Buchbinder Tunick & Co. v. Manhattan National Life insurance Co., 219 Ad2d 463 (1st Dept. 1995), citing Calamari & Perillo, Contracts §2-20 at 114). An agreement is deemed ratified when a party accepted the benefits of such and substantially complied with its terms (Brennan v. Brennan, 305 AD2d 524 (2nd Dept. 2003)).
It is undisputed that the parties were married September 27, 2003 and separated January 5, 2007. Further, the parties negotiated a Separation Agreement which was ultimately signed by defendant on September 12, 2007 and her signature properly acknowledged. Said agreement was forwarded to plaintiff who also signed but failed to have his signature properly acknowledged. Defendant received a copy of the agreement with plaintiff's unacknowledged signature approximately one year later with plaintiff's handwritten changes. Defendant notified plaintiff by letter dated September 15, 2008 of the acknowledgment issue, revoked her signature and objected to any attempt by plaintiff to remedy the invalid execution of the Agreement.
First, at the time of defendant's revocation, plaintiff's signature had not been properly acknowledged and, thus, there was no effective Agreement. There is a bright line rule of law that an agreement lacking the proper acknowledgment is unenforceable, supra, (Matisoff v. Dobi at 135,36). It follows that a revocation received prior to a proper acknowledgment shall be given effect as there can be no valid acceptance without meeting the statutory requirements for execution.
Second, in the case at bar, it is clear that plaintiff made certain changes and notations to the parties' Agreement subsequent to defendant's signature and acknowledgment on September 12, 2007 and prior to the acknowledgment of his own signature on September 18, 2008. Specifically, there is a two page insert between pages 15 and 16 of the Agreement wherein plaintiff writes that certain terms are unacceptable with a date of 10-12-07, one month after defendant signed the Agreement. These, in addition to changes or notations made by plaintiff on pages 1, 3, 4, 5, 6 and 13, are not initialed by defendant which initials would serve to indicate that she reviewed and accepted same. Plaintiff altered the terms of the Agreement by making the above noted changes, terms that were not presented to defendant until she received a copy of the "amended" Agreement approximately one year later. As such, defendant's written revocation to plaintiff dated September 15, 2008 was effective upon receipt by the defendant, which he admits, for two reasons: one, the Agreement was not properly executed when the revocation was received; and, two, defendant had never accepted the new terms of the "amended" Agreement. Plaintiff's efforts to acknowledge his signature three days after revocation do not make the Agreement enforceable as no agreement had been reached between the parties. Thus, there can be no substantial compliance as required by statute.
For reasons cited herein, the Court finds the plaintiff's arguments with regard to ratification and/or estoppel to be without merit.
Further, this Court rejects plaintiff's challenges to defendant's statement of net worth in that same are based on an appraisal of defendant's business by an appraiser retained by plaintiff using incomplete discovery.
The remainder of plaintiff's arguments with regard to any benefits defendant received will be considered in the context of this matrimonial litigation.
Accordingly, it is
ORDERED, that plaintiff's application is DENIED in its entirety; and it is
ORDERED, that defendant's application to grant her summary judgment with regard to plaintiff's first, fifth and sixth causes of action in the Second Amended Verified Complaint and dismissing same is GRANTED in that all are based on the parties' Separation Agreement being deemed valid. This Court has declared said Agreement to be invalid thereby making these causes of action without merit; and it is
ORDERED, that counsel and the parties shall appear for a conference in this matter on May 17, 2010.
The foregoing constitutes the order of this Court. ¦
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.
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| April 30, 2010 |
| Discovery Denied |
| Posted By |
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In the case below from the New York Court of Appeals, the court finds no "egregious fault" in a case where a woman gave birth to a child of her paramour and lied to her husband about it for three years. By not finding an "egregious fault" the court precluded the possibility of obtaining discovery on the issue. In dissent Judge Piggot points out that the Court of Appeals is putting the cart before the horse, deciding whether there has been "egregious fault" before there was discovery that could substantiate or disprove that claim. The courts ruling will effectively deny discovery on all but the most extreme claim's of "egregious fault."
Howard S. v. Lillian S.
04-30-2010
Opinion by Chief Judge Lippman. Judges Ciparick, Graffeo, Read, Smith and Jones concur. Judge Pigott dissents in an opinion.
Decided: April 29; 71
LIPPMAN, Ch.J.-The dispute in this matrimonial action centers on the extent of discovery that should be permitted into issues of marital fault. As set forth in the complaint, plaintiff husband and defendant wife were married in May 1997. Defendant had one child from a previous relationship, who was later adopted by plaintiff. Three other children were born during the course of the marriage. The youngest child, born in 2004, was the product of an extramarital affair between defendant and an unidentified man. Plaintiff, unaware of his wife's infidelity until the child was over three years old, has raised that child as his own. Plaintiff alleges that, although defendant knew or should have known that the child was not plaintiff's, she withheld that information from him.
In 2007, defendant allegedly commenced another extramarital affair with an individual who was initially named as a co-respondent in this action. Plaintiff confronted defendant with his suspicions of her infidelity, but she denied that she was unfaithful. Defendant maintained that there were no grounds for divorce and the parties entered into the collaborative law process at her suggestion. Several months later, plaintiff obtained the results of a DNA marker test revealing that he was not the biological father of the youngest child.
Soon thereafter, plaintiff commenced this action asserting two causes of action for divorce-based on grounds of cruel and inhuman treatment and adultery-and a cause of action for fraud, seeking compensatory and punitive damages. The fraud allegations stated that defendant represented that she had been faithful to plaintiff and that he continued to participate in the marriage in reliance upon those representations to his financial detriment. He sought to recover damages under the fraud claim based upon costs he incurred due to defendant's failure to disclose her adultery-specifically, the amounts he expended in support of the youngest child, profits from marital investments that he would have deferred and fees for the collaborative law process. Among other things, plaintiff sought equitable distribution of the marital property, alleging that the bulk of the property should be awarded to him due to defendant's egregious fault. Defendant answered and asserted a counterclaim for divorce on the ground of abandonment.
Defendant moved to dismiss or sever the fraud cause of action and plaintiff cross-moved for liberal discovery relating to his fraud claim and to the issue of defendant's egregious fault for purposes of equitable distribution.1 Supreme Court denied defendant's motion to dismiss and found that the complaint stated a cause of action for fraud, but limited plaintiff's available damages to his pecuniary loss in the form of collaborative law process fees. The court also denied plaintiff's cross motion for liberal discovery, finding that defendant's actions did not rise to the level of egregious fault.
A majority of the Appellate Division affirmed, agreeing that defendant's behavior did not constitute egregious fault such that it could be considered for purposes of equitable distribution (62 AD3d 187 [1st Dept 2009]). The Court further found that plaintiff could only pursue his claims of actual pecuniary loss under the fraud cause of action and rejected the claims for lost profits, child support and punitive damages. One Justice dissented and would have allowed plaintiff to obtain liberal discovery on the issue of egregious conduct. The Appellate Division granted plaintiff leave to appeal, and we now affirm.
Domestic Relations Law §236 (B) (5) (d) sets forth the factors a court must consider when making an equitable distribution award. The statute does not specifically provide for consideration of marital fault, but does contain a catch-all provision that allows a court to consider "any other factor which the court shall expressly find to be just and proper" (Domestic Relations Law §236 [B][5][d][14]). We have, however, rejected the notion that marital fault is a "just and proper" factor for consideration, "[e]xcept in egregious cases which shock the conscience of the court" (O'Brien v. O'Brien, 66 NY2d 576, 589-590 [1985]). This rule is based, in part, upon the recognition that marriage is, among other things, an economic partnership and that the marital estate should be divided accordingly. We also observed that "fault will usually be difficult to assign and [that] introduction of the issue may involve the courts in time-consuming procedural maneuvers relating to collateral issues" (O'Brien, 66 NY2d at 590).
Although we have not had occasion to further define egregious conduct, courts have agreed that adultery, on its own, does not ordinarily suffice (see e.g. Newton v. Newton, 246 AD2d 765, 766 [3d Dept 1998]; Lestrange v. Lestrange, 148 AD2d 587, 588 [2d Dept 1989]). This makes sense because adultery is a ground for divorce-a basis for ending the marital relationship, not for altering the nature of the economic partnership. At a minimum, in order to have any significance at all, egregious conduct must consist of behavior that falls well outside the bounds of the basis for an ordinary divorce action. This is not to say that there can never be a situation where grounds for divorce and egregious conduct will overlap. However, it should be only a truly exceptional situation, due to outrageous or conscience-shocking conduct on the part of one spouse, that will require the court to consider whether to adjust the equitable distribution of the assets (see e.g. Levi v. Levi, 46 AD3d 520 [2d Dept 2007] [attempted bribery of trial judge]; Havell v. Islam, 301 AD2d 339 [1st Dept 2002] [vicious assault of spouse in presence of children]).2 Absent these types of extreme circumstances, courts are not in the business of regulating how spouses treat one another.
The complaint alleges that defendant committed adultery and that, as a consequence of that conduct, she conceived a child that she knew or should have known was fathered by another man and that she kept that information from plaintiff. Even taking these allegations as true, plaintiff has essentially stated a cause of action for adultery. While adultery, and many of its unintended consequences, will undoubtedly cause a great deal of anguish and distress for the other spouse, it does not fit within the legal concept of egregious conduct. Moreover, plaintiff's cause of action for fraud,3 is based entirely upon defendant's alleged adultery and on plaintiff's reliance upon the denial of that behavior. Plaintiff cannot obtain discovery for what is essentially an allegation of marital fault.4
Although CPLR 3101 provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action," Domestic Relations Law §236 (B)(5)(d) is the specific statutory provision that governs equitable distribution in marital actions. Despite the general policy in favor of liberal discovery, this Court has interpreted the more specific section of the Domestic Relations Law to allow for consideration of marital fault in only a limited set of circumstances involving egregious conduct. In the absence of those circumstances, liberal discovery on issues of marital fault-at variance with O'Brien-should not ordinarily be permitted, though there may be exceptions in rare circumstances (see e.g. Anonymous v. Anonymous, 71 AD2d 209, 214 [1st Dept 1979]). Despite the availability of protective orders if courts were to consider these matters on a case by case basis, there remains significant potential for abuse and harassment as a result of such discovery, as well as the possibility that parties will be induced to enter into disadvantageous settlements rather than litigate these types of intensely personal issues.
Plaintiff's contentions pertaining to permissible damages with respect to his fraud cause of action are without merit.
1. The parties indicate that they have stipulated to a divorce on the ground of constructive abandonment. A copy of that stipulation was not included in the record on appeal.
2. Although the Appellate Division opinion below generally stated the correct standard, to the extent that it can be read to limit egregious conduct to behavior involving extreme violence, the definition should not be so restrictive.
3. We note that since defendant did not cross appeal the denial of the motion to dismiss the fraud cause of action to the Appellate Division, the issue of whether or not plaintiff stated a cause of action for fraud was not presented to that Court and is not before us.
4. This holding, of course, has no impact on a party's ability to seek discovery for the dissipation of marital assets (see Domestic Relations Law §236 [B][5][d][12]).
Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
PIGOTT, J. (dissenting)-I respectfully dissent because, in my view, it is premature to rule that wife's behavior does not, as a matter of law, constitute egregious misconduct for purpose of equitable distribution under the Domestic Relations Law. Therefore, husband is entitled to discovery on his claim.
It is well-settled that parties are entitled to "full disclosure of all evidence material and necessary in the prosecution and defense of an action" (CPLR 3101 [a] [1]). This provision makes no exception for matrimonial actions. Further, as the majority recognizes, this Court has held that marital fault may be considered under factor 13 of Domestic Relations Law §236 [B] [5] [d] [13], which provides that a court may consider "any other factor which the court shall expressly find to be just and proper" (maj. opn. at 4 citing O'Brien v. O'Brien, 66 NY2d 576 [1985]). We limited such consideration of fault to "egregious cases which shock the conscience of the court" (id. at 589-590). It is within the court's discretion to determine whether a spouse's misconduct is so egregious to justify consideration for purposes of equitable distribution. In my view, the court should make this determination with full disclosure of the misconduct.
The majority finds that discovery on the issue of fault is precluded in this case. Although neither party affirmatively moved for a ruling on the egregious misconduct claim, the majority reasons that the conduct alleged by husband is not so egregious as a matter of law to be considered for purposes of equitable distribution. In my view, this is putting the cart before the horse. Indeed, the majority has implicitly accepted the view of the First and Second Departments that a party is required to make a motion for discovery on the issue of fault (see Ginsberg v. Ginsberg, 104 AD2d 482 [2d Dept 1984]; McMahan v. McMahan, 100 AD2d 826 [1st Dept 1984] [two Justices dissenting]). I disagree with this approach, and rather, take the view of the Third and Fourth Departments that have no general prohibition of pretrial discovery on fault, relying on our liberal discovery rule (see Nigro v. Nigro, 121 AD2d 833 [3d Dept 1986]; Lemke v. Lemke, 100 AD2d 735 [4th Dept 1984]). Under that rule, husband is entitled to discovery on the issue of fault, albeit with the court overseeing and preventing abuses by asserting its protective power (see CPLR 3101 [authorizing the court to issue a protective order "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts"]). By first permitting discovery on the issue, the court may adequately consider whether the misconduct alleged does indeed "shock the conscience of the court" so as to warrant consideration for purposes of equitable distribution.
Further, I cannot agree with the majority's reasoning for imposing a rule that would require a party to first seek permission from the court to obtain discovery on egregious fault. The majority reasons that, despite the court's protective power, "there remains significant potential for abuse and harassment as a result of such discovery" (maj. opn. at 7). However, considerations of abuse and harassment may be found in any contentious litigation. Further, fault is almost always an issue in a matrimonial case as a finding of fault or the living apart of the spouses are the only grounds for divorce in New York. Matrimonial cases often involve issues of a sensitive nature, and courts are well equipped to deal with the potential problems associated with them. Thus, disclosure should be permitted with restrictions imposed on a case-by-case basis, when problems peculiar to the particular case arise (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, C3101:15 [noting that CPLR 3101 [a] permits courts to restrict disclosure in specific cases where problems exist]).
Further, the majority believes there is a "possibility that parties will be induced to enter into disadvantageous settlements rather than litigate these types of intensely personal issues." At least one matrimonial scholar disagrees: "Often, the pretrial examination can motivate settlement and avoid the far more bitter confrontation of the parties at trial, thereby paving the way for more harmonious post-divorce relationships. In any event, there would appear to be no valid reason to force matrimonial litigants to trial with less opportunity for disclosure and preparation than in any other civil action" (2 New York Matrimonial Law and Practice §16:29).
Assuming wife moved for a protective order limiting husband's discovery on the issue of fault, I think the issue would be close. While adultery has generally been held not to be an act so egregious as to become a factor to be considered when distributing marital property, it may be a factor if it amounts to "egregious" misconduct. Here, wife not only committed adultery on more than one occasion, she also had a child out of wedlock and deceived both husband and child as to that child's birth parent. In my view, it is premature without additional discovery to conclude at this junction that wife's misconduct is not so egregious to warrant consideration for purposes of the Domestic Relations Law.
♦Order affirmed, with costs, and certified question answered in the affirmative. Opinion by Chief Judge Lippman. Judges Ciparick, Graffeo, Read, Smith and Jones concur. Judge Pigott dissents in an opinion.
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| April 29, 2010 |
| Sandra Bullock and Jesse James’ Divorce Begets the Issue of Child Custody |
| Posted By Brian D. Perskin |
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Sandra Bullock has filed for divorce from her husband Jesse James, which raises an important question: What about the children?
The divorce is complicated because of the issue of child custody and visitation regarding the three children James and Bullock have from James' first marriage. Bullock has a major caretaking role with them. Bullock also has a three-and-a-half month old adopted son, Louis. Joanna Grossman of Findlaw delves into the case of Sunny, the youngest, with whom Bullock has formed a maternal relationship since her birth in 2004:
Another issue is the custody of Louis, the 4-month-old son Bullock has just adopted. Joanna Molloy of USA Today writes:
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| February 05, 2010 |
| Have a Divorce Pending? Hire a Private Investigator Says the Court!!! |
| Posted By Brian D. Perskin |
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In the decision below the court found that a husband hiring a private investigator to follow the wife and document her proclivities did not constitute harassment. The husband had a legitimate right to prepare his defense and his counterclaim. This was despite a restraining order that the wife had against the husband. This decision effectively sanctions hiring personal investigators to follow spouses in marital disputes.
Anonymous v. Anonymous, xxxxx
Supreme Court, Orange County
Justice Debra J. Kiedaisch
Decided: Jan. 27, 2010
The respondent husband has brought a motion for summary
judgment1 dismissing the wife’s petition which alleged the
husband violated an order of protection entered on February
26, 2009 pursuant to a settlement stipulation in Family Court.
The order of protection, entered without any finding of fault
against the husband, directs him to refrain from committing a
family offense or criminal offense against the wife and to stay at
least 1000 feet away from the residence and place of employment
of the wife except for court-ordered child visitation or to
attend church services on Sundays. The wife’s violation petition,
supplemented by her affidavits filed on this motion, allege
the husband retained a private investigator who recorded
on DVD the wife entering a motel and having an affair with
one Father L., a priest assigned to the Church, where the wife
was employed. The wife alleges the husband furnished the
DVD to her superiors at the Church resulting in the wife being
forced to resign. The wife contends, in effect, there was no
legitimate purpose in the husband having her followed by a
private detective and delivering the DVD to Church officials
and that doing so was intended by the husband to cause her to
lose her employment and cause her personal humiliation and
suffering. The wife claims such conduct constitutes a violation
of the February 26, 2009 order of protection2. On November 10,
2008 the wife had filed a divorce action against the husband
which has also been assigned to the undersigned in the IDV
Part, Supreme Court. On or about January 15, 2009, the husband
filed an answer and counterclaims for divorce against the wife
alleging the wife was having sexual relations with a certain
individual. Subsequently, on or about November 5, 2009, the
husband filed a motion in the matrimonial action to amend
his answer and counterclaims alleging the wife was committing
adultery with Father L.3 In opposition to the husband’s
motion to dismiss the petition the wife’s attorney alleges the
husband hired the private detective after he filed his answer
and counterclaims in the divorce action. The wife’s attorney
contends the husband was not legally bound to turn over
the DVD to Church officials. The wife’s attorney contends the
husband violated the order of protection by acting through
an agent, the private detective he hired, to follow and record
the wife’s activities, and then turning over the DVD to the
church causing the wife to lose her employment.
On this summary judgment motion, it is not disputed the
wife was having an affair with Father L. The investigator avers
he gave his report, photos, and DVD proving such affair only
to the husband in August, 2009. The husband averred Father
L. routinely administered Sunday mass to the husband, the
wife, and their child while they attended church, together,
and continued to do so on two occasions in September, 2009
after the husband learned of their relationship. The husband
avers he was so upset that it was Father L. who was administering
mass to him and his family that he returned the host
to another priest, Father A., explaining why he could not
accept communion from Father L. The husband states that
in his anguish he told Father A. of the photos. The husband
states he pleaded with Father A. not to tell Father B., who is
Father’s A.’s superior, as the husband did not want a scandal
and did not want to embarrass his child. The husband states
he reluctantly agreed at the insistence of Father A. to discuss
the matter with Father B. upon Father A. explaining it was
Father B.’s duty to investigate the matter and take appropriate
action. The husband states Father B. came to the husband’s
house on or about September 2, 2009 to discuss the matter
and at the request of Father B. the husband gave him a copy
of the DVD obtained from the investigator.
If the proponent of a summary judgment motion to dismiss
the petition establishes a prima facie entitlement to judgment
as a matter of law, the petition must be dismissed upon
the failure of petitioner to raise a triable issue of fact which
would preclude such judgment (Alvarez v. Prospect Hosp., 68
NY2d 320; Jackson v. New York University Downtown Hosp,
__ N.Y.S.2d__, 2010 WL 190294, N.Y.A.D. 2 Dept., 2010.) Generally,
a party bound to obey an order enjoining the party from
committing certain acts or conduct may be guilty of contempt
of such order by abetting others to violate the order without
the party personally violating the order directly (Mayor of City
of New York v. New York & S.I. Ferry Co., 64 N.Y. 622). A person
bound by the injunction may not hire others to do what he
or she may not do and evade the injunction by connivance
(Neale v. Osborne, 15 How.Pr. 81). In Leggio v. Leggio, 190
Misc 2d 571, the respondent was ordered to stay away from
the petitioner’s residence. The respondent enlisted persons
to enter the residence and remove petitioner’s property. The
court held that respondent violated the order of protection
by enlisting other persons to act on his behalf to commit acts
he was proscribed from committing. The court in Leggio, in
effect, found that enlisting others to enter the petitioner’s
residence and remove her property constituted an unlawful
intrusion upon the rights secured to petitioner by the order of
protection for which the respondent could be held in contempt
(Samuksnis v. Priest, 21 AD3d 3814).
It was not improper, per se, for the husband to retain the
services of a private investigator. The hiring of a professional
licensed private investigator in a matrimonial action to gather
evidence is for a proper and legitimate purpose. No case is
brought to the attention of the court in which the hiring of a
private investigator for such purpose has been held, per se,
to be a criminal act including harassment or stalking in violation
of the Penal Law (Penal Law 240.26; Penal Law 120.45).
The husband had the right to gather evidence up to the date
of trial in defense of the matrimonial action and in support
of his own counterclaims. The husband was not required to
accept that the wife had necessarily ceased her extramarital
affair merely upon her assurance to him that she had. In
fact, such representation proved to be false as the wife does
not controvert that the private investigator disclosed as the
result of his investigation that she was continuing to have an
affair with Father L. Under the circumstances, the hiring of
the private investigator, in and of itself, was not an unlawful
intrusion upon the rights of the wife secured by the order or
protection (Samuksnis v. Priest, 21 AD3d 381).
The next inquiry is whether delivering the DVD to the Church
officials, which was not necessary for the husband to defend or
prosecute the divorce action, raises a triable issue of fact that
the husband in having the wife followed and recorded by a
private investigator intended to inflict emotional and financial
harm upon the wife which might constitute a violation of the
order of protection. Although harassment in the second degree
often involves conduct which places a person in fear of their
physical safety, the language of the statute does not limit itself
to only physical threats (Penal Law 240.26). If the husband had
the wife followed and recorded by a private investigator for
the purpose of gathering embarrassing material to deliver
to her employer with the intention to cause her to lose her
employment such might qualify as conduct which alarms or
seriously annoys another person, and serves no legitimate
purpose, constituting harassment in the second degree (Penal
Law 240.26[3]). In Eck v. Eck, 44 AD3d 1168, the conduct complained
of as constituting harassment in the second degree
consisted of respondent making disparaging remarks and
accusations concerning petitioner to petitioner’s employer.
The appellate court in affirming the dismissal of the petition
stated it did so in deference to the Family Court’s credibility
determinations that the proven conduct did not support a finding
of harassment in the second degree. The appellate court did
not expressly rule that communications to the other person’s
employer calculated to cause that person to be terminated from
employment could not as a matter of law constitute harassment,
if sufficiently proved. However, it is uncontroverted in
this case that Father L. continued to administer communion
to the husband, the wife, and the parties’ child on Sundays,
after the affair became known to the husband. Under such
circumstances, the husband has prima facie demonstrated
a legitimate and justifiable purpose in communicating with
Church officials about the relationship between his wife and
Father L. The husband avers he resisted turning over the DVD
to Church officials fearing it would embarrass the parties’ child,
but that Father A. and his superior, Father B., prevailed upon the
husband to do so. Such averment that Church officials pressed
to receive the DVD appears credible as it would be expected
that Church officials would seek to obtain definitive proof, if
it existed, concerning allegations that one of their priests was
committing adultery with a Church employee, who was also
the wife of a parishioner. Such conduct, if true, would be of
moral and ethical concern to the Church officials as well as
engendering a risk of exposing the Church to potential litigation
and liability. The averments by the husband concerning how
the turnover of the DVD occurred are not based on evidence
exclusively within the husband’s knowledge. There are other
witnesses to such conversations concerning how the DVD
came to be given to Father B., namely, Father A. and Father
B. The wife makes no request for discovery or depositions of
such witnesses prior to determination of this summary judgment
motion or articulates any basis for concluding that such
discovery would yield different evidence (Pistolese v. William
Floyd Union Free Dist., __ N.Y.S. 2d__, 2010 WL 187702, N.Y.A.D.
2 Dept., 2010; Stagg v. City of New York, 39 AD3d 533).
The husband in his motion papers has prima facie demonstrated
his entitlement to summary judgment dismissing the
petition by evidence showing he did not retain the private
investigator for an improper or illegitimate purpose such as
harassment or stalking under the Penal Law or intend to make
improper use of the private investigator’s work product DVD.
Upon the failure of the wife to demonstrate the existence of
a triable issue of fact that the husband committed a crime or
family offense against her or otherwise violated the order of
protection, summary judgment dismissing the petition should
be granted.
Accordingly, it is hereby
ORDERED that the petition and above captioned proceeding
are dismissed on the merits.
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| February 01, 2010 |
| Fair Warning for those who Contribute Little to a Marriage |
| Posted By Brian D. Perskin |
|
In the below decision from Suffolk County Supreme Court Justice Gargiulo denies equal distribution in a case where the wife contributed nothing to the economic partnership, neither through her work or her by contributing her own money. In this case the Judge found that the wife had been siphoning off company funds throughout the marriage. The Judge also denied counsel fees on the theory that it was plainly obvious that the wife was not entitled to the requested relief and as such the Judge would not grant counsel fees merely to allow the wife to play with "house money" in trying to receive a larger degree of equitable distribution. This warning is fair warning to those who put nothing into an economic partnership, but intend to take half of everything with them when they leave.
S v. S, 29475-2007
Decided: January 26, 2010
Justice Garguilo
This is an action for Absolute Divorce commenced by the plaintiff, A.S., against the defendant, E.S. The Court took testimony as to grounds and makes its findings hereinafter allowing divorce on the basis of constructive abandonment (DRL §170(2)). Thereafter, the trial was held before this Court ending on November 6, 2009.
The court has had a full opportunity to consider the evidence presented with respect to the issues in this proceeding including all the testimony offered and all exhibits received. Furthermore, the Court observed the demeanor of the witnesses and has made determinations concerning the credibility of these witnesses. The Court makes the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT:
A. GROUNDS:
1. The parties were married on August 7, 1999 within the State of New York.
2. The Action for Divorce was commenced on or about October 10, 2007.
3. The plaintiff-wife, at the time of trial, was 47 years old. The defendant-husband, at the time of trial, was 57 years old. The health of the parties is not in issue.
4. There are no children of the marriage. Both were previously divorced and do have children of their prior marriages. In 2002, the plaintiff had commenced an action for divorce which was discontinued.
5. At the time of the commencement of this action, both plaintiff and defendant were residents of the State of New York and both had prior thereto continuously resided in the State of New York for a period in excess of two years. Neither the plaintiff nor the defendant are in the military service of the United States, and there is no judgment or decree of divorce, separation or annulment granted with respect to this marriage by this Court or any other court of competent jurisdiction and no other actions are pending at the present time.
6. Both parties agree to take, prior to the entry of a filed Judgment, all steps solely within their power to remove any barrier to the other's remarriage following divorce. The Court finds it has jurisdiction of the parties and the subject matter.
7. The Court finds that the defendant knowingly, intelligently and voluntarily constructively abandoned the plaintiff with respect to the grounds alleged by the plaintiff in her Verified Complaint. The Court finds credible the testimony of the plaintiff that since on or about March, 2006, and continuing, the defendant, without just cause or provocation, willfully refused to co-habit with the plaintiff as man and wife and to have normal sexual relations with the plaintiff, despite plaintiff's repeated requests of the defendant to resume normal sexual relations. Both plaintiff and defendant are physically capable of engaging in same and neither party suffers from any physical or mental disability which would preclude marital relations. The Court finds that said refusal has been continuous, unjustified and unprovoked. Consequently, the plaintiff proved, and the Court finds as fact, those allegations as set forth in paragraphs Eighth, Ninth and Tenth of her Verified Complaint dated April 20, 2009. Oral applications to conform the pleadings to the proofs were granted. The defendant has neither admitted and/or denied the allegations.
B. DISPOSITION OF PROPERTY:
8. Marital property is defined in Domestic Relations Law §236B(1)(c) as "All property acquired by either or both spouses during the marriage." The issues both prosecuted and defended by the parties, in large measure, concern the identity of the property (marital vs. separate) and the relative share of each party.
The following are the properties at issue:
a) 3 Frances Lane, Port Jefferson, New York (the marital residence).
b) Home Companion Services of New York, Inc.
1
c) Home Companion Services of Florida, Inc.
d) Access Home Care, Inc.
e) Arcadia Management, Inc.
f) Green Fields East Holding, LLC.
g) Janney Montgomery Scott accounts:
i. XXXX-0213
ii. XXXX-0116 (529 Plan)
iii. XXXX-0170 (Roth IRA)
iv. XXXX-0045
v. XXXX-2840 (profit sharing)
vi. Arcadia Management (401K)
h) HSBC Accounts:
923XXXXXX
923XXXXXX
253XXXXXX
I) ING Account:
73322014
j) Time Shares:
I. Manhattan Club
ii. Bahamas
k) Vehicles:
I. 2003 Nissan
ii. 2009 Nissan X-terra
iii. Mercedes-Benz (leased)
DISCUSSION
The plaintiff seeks a 50 percent share of the marital portion of all the business interests in accordance with the stipulated values determined by the neutral appraiser. As to the marital residence, the plaintiff seeks a 50 percent share of its value in accordance with the stipulated value determined by the neutral appraiser and exclusive occupancy of said residence until such time as the home is sold. Additionally, plaintiff seeks a 50 percent share of all retirement accounts and all the other enumerated funds. Green Fields East Holding, LLC controls defendant's share of realty located in Aquebogue, New York. The plaintiff is seeking a 50 percent share "of the equity in the property located in Aquebogue, in accordance with the stipulated value determined by the neutral appraiser." The plaintiff seeks title to the Bahamas time share as well as a distributive award and/or credit in the sum of $11,500 representing the balance of her claimed 50 percent share in the two marital time share units. Lastly, the plaintiff seeks exclusive title and possession of the 2003 Nissan vehicle.
The defendant does not suggest any percentage as concerns the distributive award aspects of the case. However, the defendant, in his post-trial memorandum, suggests "plaintiff herein was clearly not a contributing member of an economic partnership with defendant." In stark contrast, the plaintiff, in her post-trial memorandum, characterizes her contributions in phrases such as "the expansive nature of her ongoing contributions is clear;" "her direct and daily involvement in the business...vast indirect contributions;" "Allison's (plaintiff) significant direct and indirect contributions to the success and viability of the businesses;" and, "significant and unquestioned contributions to her husband and the businesses."
The Domestic Relations Law contemplates an equitable division of assets based upon the parties' respective contributions to the marriage (see, Domestic Relations Law §236(B)(5)(d)(6)). The distribution of the assets depends not only on the financial contributions of the parties, "but also on a wide range of non-remunerated services to the joint enterprise, such as homemaking, raising children and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home," (Price v. Price, 69 NY2d 8, 14 [1986]).
The Court has considered the marital history and will enumerate the factors considered in arriving at an equitable distribution of marital property (DRL §236(B)(5)(d)). At the time of the marriage, the defendant was (and currently remains) the driving, tireless source of the success of the business interests. He came to the marriage as a responsible entrepreneur earning a handsome living. The plaintiff came into the marriage with poor credit. This is borne out as the trial testimony indicated that the marital home, purchased days before the wedding, was purchased solely with defendant's money. The plaintiff could not participate in the purchase as she had bad credit. The record is quite clear that the plaintiff offered virtually nothing to enhance the growth of the business interests and/or the accumulation of additional assets.
The marriage, as noted earlier, was the second marriage of both parties. This marriage is of relatively short duration as the wedding occurred on August 7, 1999 and the action commenced in October of 2007.
There being no children of the marriage, the issue of a "custodial parents [need] to occupy or own the marital residence and to use or own its household effects," is not a consideration.
Neither party offered evidence reflecting DRL §236(B) (5) (d)(4), (7), (9), (10) or (12). Nonetheless, the Court does note that liquidity issues (DRL §236(B)(5)(d)(7) pose no compelling considerations.
Pursuant to DRL §236(B)(5)(d)(13), the Court may consider "any other factor which the court shall expressly find to be just and proper." Given the credible testimony of the non-party witnesses, it is an affront to the sensibilities of the finder of fact to suggest the plaintiff to be or have been anything but a consumer, user and abuser of her status as the boss's wife. To claim the plaintiff to be an element in any way responsible for the defendant's success in business and/or investments is equally an affront. The plaintiff has not demonstrated to any degree the contribution of non-remunerated services to the joint enterprises.
During the course of this short, rocky relationship, nothing tied the plaintiff to the marital home. There is no rearing of children, maintaining the marital abode and/or active participation in fostering the growth of defendant's enterprises. At the time the plaintiff took employment with her husband's companies, she abused her stature as the boss's wife. She came and went as she pleased and neglected accounts, costing the business dearly. She engaged in self-dealing by secretly siphoning money.
On the home front, she allowed her sons from a prior marriage to run amok, damage, soil and show no respect for the defendant's proprietary rights. In short, to suggest any kind of symbiosis between the plaintiff and defendant is sheer fiction. The plaintiff's presence, as suggested by the record, was parasitic.
It is elementary that equitable distribution does not necessarily mean equal distribution, Rizutto v. Rizutto, 250 AD2d 892 (1998). Equitable distribution presents issues of fact which the Court must resolve,Teabout v. Teabout, 269 AD2d 719 (2000). In partitioning property, the Court should consider the separate contributions of each party to the acquisition and improvement of the property, Quattrone v. Quattrone, 210 AD2d 306 (1996). The Court must also consider the parties' respective contributions to the family economic enterprise, Johnson v. Johnson, 49 AD2d 348 (2008).
THE MARITAL RESIDENCE
The marital residence at 3 Frances Lane, Port Jefferson, New York was purchased by the defendant prior to the marriage (August 5, 1999). The purchase price was $425,000. The sum of $145,000 came directly from proceeds of a sale of defendant's condominium. The home, upon closing, was encumbered with a $280,000 mortgage solely in defendant's name. The plaintiff did not contribute money to the acquisition of the home.
During March of 2005, the defendant conveyed his interest in the marital home to himself and the plaintiff as tenants by the entirety. There was no consideration for the transfer.
The neutral appraiser, Given Associates, valued the residence at the time of the transfer at $900,000. Shortly before commencement of this trial, the neutral appraiser determined the value of the premises to be $765,000. The marital residence declined in value by $135,000 from conveyance to trial. The sum of $40,000 paid for improvements is reflective of improvements made wholly with funds supplied by the defendant. Those funds came from his income earned post marriage. The record is further clear that all funds to carry the home were derived from defendant's self employment.
The plaintiff seeks 50 percent distribution of the net value after crediting defendant with the sum he actually spent to take possession of the house ($145,000) citing Coffey v. Coffey, 119AD2d 620 (2nd Dept.1986). The Court deciding Coffey in remanding the matter to determine the increase in value from the date the transferring spouse acquired the separate property to the date of transfer to his spouse clearly found the pre-transfer appreciation to be relevant. Why so? The Court noted:
At the outset, it is important to note that there is no requirement that distribution of each item of marital property be on an equal basis (see, Arvantides v. Arvantides, 64 NY2d 1033, 1034; Parsons v. Parsons, supra.; Ackley v. Ackley, supra.; Rodgers v. Rodgers, 98 AD2d 386, 390-391, appeal dismissed 62 NY2d 646). Rather, property acquired during the marriage should be distributed "in a manner which reflects the individual needs and circumstances of the parties" (mem of Governor Carey, 1980 McKinney's Session Laws of NY, at 1863). To this end, courts possess the flexibility required to mold a decree appropriate to a given situation, with fairness being the ultimate goal (see, Rodgers v. Rodgers, supra., at p 391).
The court went on to further comment:
In accordance with these principles, in the case at bar, the husband should receive a credit for the contribution of his separate property toward the creation of the marital assets (see, Parsons v. Parsons, 101 AD2d 1017; Duffy v. Duffy, 94 AD2d 711; Domestic Relations Law §236(B)(5)(d)(10)).
The Coffey court noted that the record was "devoid of evidence of the value of the marital residence at the time of the 1973 conveyance." The 1973 conveyance was the one that created marital property as the husband deeded the property to himself and his wife as tenants by the entirety.
The matter before this Court suffers no lack of evidence similar to Coffey. As noted earlier, the property was acquired, pre-marriage, separately. It was valued at $425,000. At the time of the conveyance to plaintiff, it was valued at $900,000. At or near the time of trial, it was valued at $765,000. As a finding, the Court concludes that the value of the marital residence declined $135,000 during its tenure as marital property. Worthy of note is the fact that the defendant-husband paid virtually all carrying charges on the home from his earned income.
The logic of the Coffey court in holding that the grantor spouse should "receive a credit for the contribution of his separate property toward the creation of the marital assets" and thereafter remanding the matter to take "evidence of the value of the marital residence at the time of the conveyance" compels this Court to find the defendant-husband's contribution of his separate property is $900,000. As the asset depreciated, the plaintiff is ORDERED to execute a quit claim deed (without any payment from the defendant) transferring her interest in the marital premises to the defendant-husband, fee simple absolute.
In deciding this case, the Court referenced Granade-Bastuck v. Bastuck, 249 AD2d 444, 671 NYS2d 512(App. Div. 2d Dept., 1998). A prime consideration of that court in sustaining a 50 percent award of the husband's non-business properties was that the wife made non-economic contributions to the marriage which allowed the couple to "amass a substantial marital estate." No such contributions were made by the plaintiff herein.
The marital home herein was improved by construction projects. Those improvements are incorporated into the appraisal of the home and the funds were derived wholly from defendant-husband's post-marriage income. The defendant-husband is directed to pay to plaintiff the sum of $10,000 representing a distributive award concerning the improvements. Both the quit claim deed and payment of funds shall occur within thirty (30) days of service of a copy of the decision and order with notice of entry. The plaintiff is ORDERED to vacate the premises no later than thirty (30) days after service of a copy of the decision and order with notice of entry.
BUSINESS INTERESTS
The plaintiff seeks a 50 percent share (distributive award) of the marital value of her husband's business interests. Plaintiff claims such an award:
"[i]s appropriate, given the magnitude of her contributions, and the manner in which her labor, services and indirect contributions helped grow the business into the successful enterprise it is today."
The record supports an extremely different scenario. Testimony of Susan Farrar (an employee of the defendant) was credible. She has been an employee of the defendant for approximately twenty (20) years. The witness testified that the labor, marketing and networking skills of the defendant transformed his chiropractic practice into a thriving home companion business. The plaintiff, herself, acknowledged Home Companion Services of New York was conceived through defendant's insight. Testimony of S F and D K, another employee, demonstrated that the plaintiff engaged in affirmative bad acts in drawing checks payable to cash and deleting same from the operating account register to avoid detection. Plaintiff's assertion that same was done with the consent of the defendant is patently incredulous. Why would the defendant, the boss, encourage his wife to write checks to cash and delete same from the register? Perhaps to give his auditors something else to do?
Financial Appraisal Services, Ltd., the neutral, court-ordered forensic accountant, found an appreciation of $1,146,000.00 of Home Companion Services of New York during the marriage. The company was founded three (3) years before the marriage. The plaintiff's contributions to the growth of that entity is undetectable. It is the decision of the Court that plaintiff's distributive award of the business entities is zero dollars. As noted earlier, the plaintiff's cavalier approach to work attendance, misfeasance, malfeasance and disruptive nature substantiate the finding herein consistent with Granade-Bastuck v. Bastuck (249 AD2d 444) in correlating a distributive award to the party's non-economic contributions to the marriage which allowed the couple to "amass a substantial marital estate."
The Court's determination concerning business interests applies to those entities noted herein at B, (b), (c), (d), (e) and (f).
INVESTMENT PORTFOLIOS
Several investment portfolios and bank accounts were the subject of the distribution claims. The testimony remains uncontroverted that all monies represented by the accounts came from income generated by the husband. However, a good deal of said income was earned during the marriage. That income used to fund the investment vehicles is marital property.
The plaintiff seeks a 50 percent distributive award of all the funds. The defendant concedes a distribution "consistent with the respective financial contributions of the parties."
Clearly the plaintiff made no financial contributions to these accounts. However, it is clear that monies represented in the accounts are a marital asset as that term is defined. The Court awards the plaintiff as follows:
J M S accounts:
1. XXXX-0213-10 percent of the value at the date of commencement of this action.
2. XXXX-0116 (529 Plan)-0 percent
3. XXXX-0170 (Roth IRA)-10 percent of the value at the date of the commencement of this action.
4. XXXX-0045-10 percent of the value at the date of commencement of this action.
5. XXXX-2840 (profit sharing)-10 percent of the value at the date of commencement of this action after crediting the defendant $32,719.59. The Court has carved out that sum as the defendant's separate property, the sum of $32,719.59 being defendant's monies in the Janney accounts pre-marriage and therefore separate property.
6. Arcadia Management (401K)-10 percent of the value at date of commencement of this action.
The accounts with HSBC and ING are marital property. The plaintiff shall receive as her distributive award 10 percent of the value of each account at the date of commencement.
In awarding the plaintiff a portion of the accounts, the court has given weight to her testimony concerning some domestic responsibilities assumed during the marriage. The plaintiff testified working with decorators involving drapery, the living room, painting, carpeting and bedding (pillows). Additionally, the plaintiff offered testimony concerning her work in cleaning the home as well as serving breakfast and dinners. The Court, in seeking equity, despite all else, chose to credit plaintiff for her services.
The two time shares will be sold. The proceeds shall be divided 10 percent to the plaintiff, 90 percent to the defendant. In lieu of sale, either party may buy the other's interest at a gross valuation of $30,000 (Manhattan Club) and $7,000 (Bahamas). More particularly, the defendant may buy out the plaintiff by tendering 10 percent of the gross values as set forth hereinabove.
The plaintiff is awarded the 2003 Nissan motor vehicle. All other vehicles are awarded to the defendant.
425 OLD TOWN ROAD PROPERTY
The real estate and building housing the defendant's business (425 Old Town Road, Port Jefferson Station, New York) was acquired by the defendant some ten (10) years before the marriage. It is separate property. The plaintiff offered no testimony concerning value, appreciation or the like. The property shall remain the defendant's separate property.
MAINTENANCE
The plaintiff is seeking an award of maintenance in the sum of $3,000 per week for a period of five (5) years. The defendant has been paying the plaintiff $500 per week in pendente lite spousal support, retroactive to October 16, 2007. The duration of this marriage is approximately eight (8) years.
Plaintiff cites Fuchs v. Fuchs, 276 AD2d 868, 714 NYS2d 381 in support of her claim. The marriage of Mr. and Mrs. Fuchs endured for thirty (30) years. They reared four (4) children. That court restated the accepted proposition that:
It is well settled that determination of whether one of the parties in a matrimonial action is entitled to maintenance and, if so, the amount to be awarded falls within the broad discretionary powers of Supreme Court (see, Domestic Relations Law §236[B][6][a]; Cohen v. Cohen, 154 AD2d 808, 809; Donnelly v. Donnelly, 144 AD2d 797, 798, appeal dismissed 73 NY2d 992).
The marriage before this Court is of a short duration. The plaintiff's contributions were at best de-minimus. Her acts of misfeasance and malfeasance have been addressed. She came into the marriage with "bad credit" and no testimony reflects any separate property except perhaps a child support entitlement from a prior marriage. She is currently under-employed and as noted hereinabove has received pendent lite spousal support for almost three (3) years. During that three (3) year period, the record is clear that the plaintiff has taken few steps to attain some form of self-sufficiency.
In lieu of any future maintenance, the defendant is directed to pay 50 percent of plaintiff's credit obligations, not to exceed $27,950. Said sum representing 50 percent of plaintiff's credit obligations on the date of commencement. In consideration of said payment, the defendant shall be discharged from any alleged arrears for unpaid medical bills limited to $1,000.
COUNSEL FEES
The plaintiff seeks a separate counsel fee award of $47,467.02. To date, defendant has paid $16,000 toward plaintiff's counsel fees.
In support of her application for counsel fees, plaintiff correctly points out:
Domestic Relations Law Section 237 expressly authorizes the award of legal fees. To discourage the use of litigation as a form of economic harassment, courts must grant reasonable and substantive awards of counsel fees that will reflect the current value of legal services, and the nature of the services that must be rendered.
The matter at bar presents itself as one where the plaintiff's demands for an equal distribution of all marital properties is preposterous. It is preposterous given the facts which were known to the parties going into trial. The defendant is successful. His properties are very valuable. Is the award of counsel fees in the best interest of all when it becomes apparent that a party's mind set is to proceed to trial and play with the "house's money"? In this case, the "house's money" is embodied in the prospect that win, lose or draw, we can count on Mr. S to pay his wife's cover charge.
The Court denies the plaintiff's fee application
It is, therefore, the ORDER of this Court that within thirty (30) days after service of a copy of this Order with Notice of Entry that:
1. The plaintiff will deliver a quit claim deed to the marital premises to the defendant and vacate the premises.
2. That the defendant will pay the plaintiff the sum of $10,000 representing marital property (money) paid for improvements of the marital home.
3. That all the business interests shall become the separate property of the defendant.
4. That the defendant shall tender the appropriate sums of money from the various retirement investment and bank accounts consistent with this decision.
5. That the defendant shall tender all documents necessary to transfer the 2003 Nissan vehicle to the plaintiff.
6. That the defendant shall tender the sums of money to the plaintiff to resolve the credit card obligations consistent with this decision.
Furthermore, the parties are directed to submit, on notice, proposed Judgments consistent with the Court's determination on or before MARCH 5, 2010.
The foregoing constitutes the ORDER of this Court.
1. Items (b) through (e) are collectively referred to as the "Business Interests."
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| August 18, 2007 |
| A Dozen Things to Consider Before You File |
| Posted By Brian D. Perskin |
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A Dozen Things To Consider Before Filing For Divorce
posted: 6:42 pm on Sunday, May 6th, 2007
filed in:
Property
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suggests a "Dozen Things to Consider Before Filing for Divorce".
You know the numbers. It's projected right now that about half of all new marriages end up in divorce. It's a horrible statistic that doesn't begin to suggest the emotional and financial strain that it puts on families. Other than the death of your spouse, divorce is probably the most stressful event you'll ever face. I've had women discussing their divorce in my office become violently ill. I've seen hardened fishermen cry in open court during their divorce hearing. Make no mistake - divorce is hell.
So what have I learned after being a lawyer for nearly 30 years and helping many folks go through this difficult process? If you believe that a divorce is in your future, here are 12 things think about:
1.
Don't do it. If you feel there is any chance that you can save your marriage, try it. See a marriage counselor, talk to a therapist, seek spiritual help, eat some humble pie - whatever, but don't take the step of filing for a divorce lightly. In all my years as a lawyer, I've never seen a divorce that wasn't emotionally grueling on the parties and their children. If there is any chance at all of saving your marriage, give it a shot - even if it doesn't work, you'll feel better later on knowing that you tried everything possible.
2.
Get a lawyer. In most states, divorces involve lots of paperwork and a dizzying array of legal decisions. You need to know your legal rights and responsibilities and should talk to an attorney BEFORE you are ready to begin proceedings. Be wary of books giving you legal advice. Divorce laws vary greatly in the United States and you need to speak with a lawyer familiar with the laws in the state where you live.
3.
Kids First. If you have children, it's never too early in the divorce proceeding to consider their needs. How and when are you going to tell them about your decision to file for divorce? Will you tell them yourself, or with your spouse? It's important to make sure that they are told in such a way that it is clear to them that they are not the cause of the divorce, that they are still loved by both of you and that they'll still be taken care of. Children suffer the most during a divorce so it's important that their routines be changed as little as possible. Get or keep involved in their everyday activities. Don't say anything negative about your spouse in front of them. Don't take out the anger and frustration you may feel toward your spouse out on your children. Make them your top priority. Give your children all the love, attention, emotional and financial support you can during this stressful time.
4.
Copy Important Financial Documents. Anything that has to do with your finances should be copied:
* Federal and state tax returns;
* Recent Pay Stubs;
* Bank and credit card statements;
* Deeds and real estate appraisals;
* Mortgage documents and statements;
* Investment and retirement statements;
* Wills and life insurance policies; and
* Automobile titles.
Don't forget to check your home computer for some of this information. If you use financial software like Quicken or some other program, back up a copy of your entire on-line file and save it to a CD. Note that this is only a partial list of documents - your lawyer may want even more information. Again, this should be done BEFORE you file for a divorce. It's amazing how these documents seem to "disappear" once you file for your divorce.
5.
Find out what you own. Take stock of your possessions. Get out a pencil and paper and write down everything that you own - you may not want to count every spice in the cupboard, but write down major items like automobiles, appliances, jewelry, furniture, antiques or anything else that is valuable. You may want to omit all items under, say, $100 and list the remaining items. You might also consider taking a video of the interior of the house and noting some of the more expensive possessions. Pictures - say with a camera phone - also work well.
6.
Find out what you owe. The importance of getting a clear picture about your income and expenses can't be emphasized enough. To a large extent, divorces are about money. You say all you care about are the children? Well, you need money to support them. You want to stay in the marital home? Do you have the ability to pay the mortgage? Many times only one spouse is directly involved in the day-to-day payment of expenses. If you're that spouse, you probably have a good handle on the debts and expenses of your family. If you're not that spouse, you need to get up to speed in a hurry. Either way, it's time for you to develop a household budget and know exactly where all the money is going. If possible, take a look at your Quicken report or your bank statements or checking account register and determine where you're spending your money and what your debts are at this time. Keep in mind that many people spend quite a bit of cash each week - so you need to factor that into your budget. Knowing your budget and expenses is extremely important in the beginning of the case when spousal support, child support or both might be an issue. It's also crucial later on when you're discussing settlement or going to trial. Once you're living on your own again, you need to know this information to intelligently assess your needs.
7.
Determine your spouse's income. My experience is that many husbands and wives don't really know what their spouses make for money. If your spouse has a regular salary, get copies of his or her W2's and pay stubs. In addition to their regular income, do they receive bonuses, tips or other fringe benefits - like reimbursements for car or housing expenses, employer paid insurance benefits or free meals? Who pays for health insurance and are there any employer contributions? Take into account employment sponsored retirement accounts, IRAs, 401(k)s or annuities. If your spouse is self-employed, owns a business or ever gets paid in cash, it's often difficult to accurately determine income. Get as much information as possible and present it to your lawyer for review. You may need the help of an accountant or other expert to help in this area.
8.
Figure out what happens when you move out. Someone generally leaves the marital home to find another place to live. Once again, BEFORE you decide whether or not to leave, talk to a lawyer. It can have adverse consequences to be the one to leave the marital home and some lawyers routinely advise clients to stay in the marital residence if at all possible (absent abuse). Depending on your state laws, being the one to move out could weaken your position later as it relates to child custody or your ability to ever return to your home. Once someone does leave, you need to figure out how to pay the family debt. You and your spouse are going to have to allocate your debts - if you can't agree on how, the court will do it for you. If you're still paying on debt that you brought into the marriage, this may be considered "non-marital debt" and be your responsibility in addition to the other debt.
9.
Divide up bank accounts. It's best if you do this with your spouse or at least after notifying your spouse. But if you fear that your spouse is going to immediately empty out all your joint bank accounts upon being told about the divorce, consider withdrawing half - but not all - of the money you have in your savings accounts. If you can withdraw half of the money from the checking account without causing a financial mess, you may want to do that too. Put the funds in a separate account in a different bank and don't spend them if at all possible! You'll undoubtedly have to divulge what you did with the money so keep track of it. As usual, check with your lawyer before taking this step.
10.
Know what you can earn. Living in two households is always more expensive than living in one. Whatever you make, it won't seem to be enough. If you earn a regular salary, is there a way for you to work overtime to supplement your income? Do you have any other way to legitimately earn more? If you've been out of the workforce for a while, what type of income can you realistically expect when returning? Do you need extensive training or more education before you return to work? Is your earning limited because you have small children and can only work part time? If you work full time, will that significantly increase your child care expenses? If your job requires extensive travel, will you continue to be able to do it and still see the children on a regular basis?
11.
Take a look at your credit history. Do you and your spouse have credit cards in your own individual names? If not, you may want to apply for them now to establish your own credit history. If your credit is poor, take steps now to improve it. Unfortunately, my experience is that money in a divorce often becomes so tight that bills get overlooked or not paid on time and the credit rating of both spouses suffers. If at all possible, try to not let this happen. You also need to consider canceling credit cards if one spouse routinely runs up huge credit card bills. Another alternative is to reduce the spending limit. Be sure to talk to your lawyer about this as well as your spouse.
12.
Save, save, save. This is advice that you should do long before you even consider getting a divorce. Save as much money as you can in your own name so that you have easy access to cash in the event you need it. If your spouse is the primary breadwinner and moves out and refuses to pay the bills, you need to pay them until a court issues a temporary order indicating who is responsible for payment. Many times, even when filing an expedited request for a hearing, it takes weeks or even months to get into court on a temporary support request. If you're the person moving out, you'll need money for a security deposit on an apartment or to buy appliances and other household items. Start saving now to ease the financial burden that nearly all couples go through when obtaining a divorce. Finally, don't forget the major expense that you and your spouse will both have when getting a divorce: legal retainers.
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A Dozen Things To Consider Before Filing For Divorce
posted: 6:42 pm on Sunday, May 6th, 2007
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The
Maine Divorce Law Blog
suggests a "Dozen Things to Consider Before Filing for Divorce".
You know the numbers. It's projected right now that about half of all new marriages end up in divorce. It's a horrible statistic that doesn't begin to suggest the emotional and financial strain that it puts on families. Other than the death of your spouse, divorce is probably the most stressful event you'll ever face. I've had women discussing their divorce in my office become violently ill. I've seen hardened fishermen cry in open court during their divorce hearing. Make no mistake - divorce is hell.
So what have I learned after being a lawyer for nearly 30 years and helping many folks go through this difficult process? If you believe that a divorce is in your future, here are 12 things think about:
1.
Don't do it. If you feel there is any chance that you can save your marriage, try it. See a marriage counselor, talk to a therapist, seek spiritual help, eat some humble pie - whatever, but don't take the step of filing for a divorce lightly. In all my years as a lawyer, I've never seen a divorce that wasn't emotionally grueling on the parties and their children. If there is any chance at all of saving your marriage, give it a shot - even if it doesn't work, you'll feel better later on knowing that you tried everything possible.
2.
Get a lawyer. In most states, divorces involve lots of paperwork and a dizzying array of legal decisions. You need to know your legal rights and responsibilities and should talk to an attorney BEFORE you are ready to begin proceedings. Be wary of books giving you legal advice. Divorce laws vary greatly in the United States and you need to speak with a lawyer familiar with the laws in the state where you live.
3.
Kids First. If you have children, it's never too early in the divorce proceeding to consider their needs. How and when are you going to tell them about your decision to file for divorce? Will you tell them yourself, or with your spouse? It's important to make sure that they are told in such a way that it is clear to them that they are not the cause of the divorce, that they are still loved by both of you and that they'll still be taken care of. Children suffer the most during a divorce so it's important that their routines be changed as little as possible. Get or keep involved in their everyday activities. Don't say anything negative about your spouse in front of them. Don't take out the anger and frustration you may feel toward your spouse out on your children. Make them your top priority. Give your children all the love, attention, emotional and financial support you can during this stressful time.
4.
Copy Important Financial Documents. Anything that has to do with your finances should be copied:
* Federal and state tax returns;
* Recent Pay Stubs;
* Bank and credit card statements;
* Deeds and real estate appraisals;
* Mortgage documents and statements;
* Investment and retirement statements;
* Wills and life insurance policies; and
* Automobile titles.
Don't forget to check your home computer for some of this information. If you use financial software like Quicken or some other program, back up a copy of your entire on-line file and save it to a CD. Note that this is only a partial list of documents - your lawyer may want even more information. Again, this should be done BEFORE you file for a divorce. It's amazing how these documents seem to "disappear" once you file for your divorce.
5.
Find out what you own. Take stock of your possessions. Get out a pencil and paper and write down everything that you own - you may not want to count every spice in the cupboard, but write down major items like automobiles, appliances, jewelry, furniture, antiques or anything else that is valuable. You may want to omit all items under, say, $100 and list the remaining items. You might also consider taking a video of the interior of the house and noting some of the more expensive possessions. Pictures - say with a camera phone - also work well.
6.
Find out what you owe. The importance of getting a clear picture about your income and expenses can't be emphasized enough. To a large extent, divorces are about money. You say all you care about are the children? Well, you need money to support them. You want to stay in the marital home? Do you have the ability to pay the mortgage? Many times only one spouse is directly involved in the day-to-day payment of expenses. If you're that spouse, you probably have a good handle on the debts and expenses of your family. If you're not that spouse, you need to get up to speed in a hurry. Either way, it's time for you to develop a household budget and know exactly where all the money is going. If possible, take a look at your Quicken report or your bank statements or checking account register and determine where you're spending your money and what your debts are at this time. Keep in mind that many people spend quite a bit of cash each week - so you need to factor that into your budget. Knowing your budget and expenses is extremely important in the beginning of the case when spousal support, child support or both might be an issue. It's also crucial later on when you're discussing settlement or going to trial. Once you're living on your own again, you need to know this information to intelligently assess your needs.
7.
Determine your spouse's income. My experience is that many husbands and wives don't really know what their spouses make for money. If your spouse has a regular salary, get copies of his or her W2's and pay stubs. In addition to their regular income, do they receive bonuses, tips or other fringe benefits - like reimbursements for car or housing expenses, employer paid insurance benefits or free meals? Who pays for health insurance and are there any employer contributions? Take into account employment sponsored retirement accounts, IRAs, 401(k)s or annuities. If your spouse is self-employed, owns a business or ever gets paid in cash, it's often difficult to accurately determine income. Get as much information as possible and present it to your lawyer for review. You may need the help of an accountant or other expert to help in this area.
8.
Figure out what happens when you move out. Someone generally leaves the marital home to find another place to live. Once again, BEFORE you decide whether or not to leave, talk to a lawyer. It can have adverse consequences to be the one to leave the marital home and some lawyers routinely advise clients to stay in the marital residence if at all possible (absent abuse). Depending on your state laws, being the one to move out could weaken your position later as it relates to child custody or your ability to ever return to your home. Once someone does leave, you need to figure out how to pay the family debt. You and your spouse are going to have to allocate your debts - if you can't agree on how, the court will do it for you. If you're still paying on debt that you brought into the marriage, this may be considered "non-marital debt" and be your responsibility in addition to the other debt.
9.
Divide up bank accounts. It's best if you do this with your spouse or at least after notifying your spouse. But if you fear that your spouse is going to immediately empty out all your joint bank accounts upon being told about the divorce, consider withdrawing half - but not all - of the money you have in your savings accounts. If you can withdraw half of the money from the checking account without causing a financial mess, you may want to do that too. Put the funds in a separate account in a different bank and don't spend them if at all possible! You'll undoubtedly have to divulge what you did with the money so keep track of it. As usual, check with your lawyer before taking this step.
10.
Know what you can earn. Living in two households is always more expensive than living in one. Whatever you make, it won't seem to be enough. If you earn a regular salary, is there a way for you to work overtime to supplement your income? Do you have any other way to legitimately earn more? If you've been out of the workforce for a while, what type of income can you realistically expect when returning? Do you need extensive training or more education before you return to work? Is your earning limited because you have small children and can only work part time? If you work full time, will that significantly increase your child care expenses? If your job requires extensive travel, will you continue to be able to do it and still see the children on a regular basis?
11.
Take a look at your credit history. Do you and your spouse have credit cards in your own individual names? If not, you may want to apply for them now to establish your own credit history. If your credit is poor, take steps now to improve it. Unfortunately, my experience is that money in a divorce often becomes so tight that bills get overlooked or not paid on time and the credit rating of both spouses suffers. If at all possible, try to not let this happen. You also need to consider canceling credit cards if one spouse routinely runs up huge credit card bills. Another alternative is to reduce the spending limit. Be sure to talk to your lawyer about this as well as your spouse.
12.
Save, save, save. This is advice that you should do long before you even consider getting a divorce. Save as much money as you can in your own name so that you have easy access to cash in the event you need it. If your spouse is the primary breadwinner and moves out and refuses to pay the bills, you need to pay them until a court issues a temporary order indicating who is responsible for payment. Many times, even when filing an expedited request for a hearing, it takes weeks or even months to get into court on a temporary support request. If you're the person moving out, you'll need money for a security deposit on an apartment or to buy appliances and other household items. Start saving now to ease the financial burden that nearly all couples go through when obtaining a divorce. Finally, don't forget the major expense that you and your spouse will both have when getting a divorce: legal retainers.
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| August 18, 2007 |
| Duress is Difficult to Prove |
| Posted By Brian D. Perskin |
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Prenuptial agreements are becoming increasingly common in New York. I have been preparing more and more as time goes on. Many people always ask me, will it hold up in Court? As long as the agreement complies with the laws of execution in New York, more and more litigants are finding that it is difficult to set aside agreements under New York State Divorce laws.
In the following case, a Judge in Nassau county set aside a prenuptial agreement, however, the appellate division overturned the judge's ruling and held the agreement was valid.
66.8.4 - - - Weinstein
Weinstein v. Weinstein, 36 A.D.3d 797, 830 N.Y.S.2d 179 (Second Dept. 2007)(2007 WL 178279)(Jan. 23, 2007):
Supreme Court, Appellate Division, Second Department, New York.
Neil WEINSTEIN, appellant,
v.
Tina WEINSTEIN, respondent.
Jan. 23, 2007
REINALDO E. RIVERA, J.P., ROBERT A. SPOLZINO, DAVID S. RITTER, and DANIEL D. ANGIOLILLO, JJ.
In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Diamond, J.), entered September 16, 2005, as, after a hearing, denied that branch of his motion which was to dismiss the defendant wife's third affirmative defense alleging that the parties' prenuptial agreement was invalid.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the husband's motion which was to dismiss the wife's third affirmative defense is granted.
The husband moved to dismiss the wife's third affirmative defense, in which the wife asserted that the prenuptial agreement was unenforceable because the form of the acknowledgment attached to the agreement did not satisfy the statutory requirements, the agreement was not duly acknowledged, and she executed the agreement under duress. After a hearing, the Supreme Court found the parties' prenuptial agreement to be invalid and unenforceable because the certificate of acknowledgment did not contain the precise language prescribed in Real Property Law ? 309-a. Crediting the wife's testimony, the Supreme Court further concluded that the agreement was unenforceable due to "possible fraud and duress" in its execution. We reverse.
A prenuptial agreement is valid only if it is "in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded" (Domestic Relations Law ? 236[B][3]; see Matisoff v. Dobi, 90 N.Y.2d 127, 132). Here, the agreement was in writing and was subscribed by both parties, but the certificate of acknowledgment attached to the agreement was not in the form currently specified by Real Property Law ? 309-a. Rather, the certificate of acknowledgment was in the form prescribed by the statute prior to its amendment in 1997 (see L 1997, ch 179).
Contrary to the wife's argument, there is no requirement that a certificate of acknowledgment contain the precise language set forth in the Real Property Law. Rather, an acknowledgment is sufficient if it is in substantial compliance with the statute (see Real Property Law ? 309-a[1]; Smith v. Boyd, 101 N.Y. 472; Schum v. Burchard, 211 App.Div. 126, affd 240 N.Y. 577). "There are two aspects to an acknowledgment: the oral declaration of the signer of the document and the written certificate, prepared by one of a number of public officials, generally a notary public" (Garguilio v. Garguilio, 122 A.D.2d 105, 106; see Rogers v. Pell, 154 N.Y. 518, 528-529; Detmer v. Detmer, 248 A.D.2d 582). Since both aspects were satisfied here, the acknowledgment substantially complied with the requirements of the Real Property Law. The minor discrepancy in the date on which the document was executed was not, in itself, a basis to set aside the agreement.
Further, although the Supreme Court found the testimony of the wife with respect to the issue of fraud to be credible, her testimony did not establish a basis upon which the agreement may be set aside. The burden of proof is on the party seeking to invalidate the agreement (see Lombardi v. Lombardi, 235 A.D.2d 400; Forsberg v. Forsberg, 219 A.D.2d 615). In the absence of evidence that the husband wilfully concealed assets, his offer to provide financial disclosure upon the wife's assent to the agreement did not constitute fraud (see Matter of Davis, 20 N.Y.2d 70, 74; Panossian v. Panossian, 172 A.D.2d 811, 813; Eckstein v. Eckstein, 129 A.D.2d 552, 553; Hoffman v. Hoffman, 100 A.D.2d 704, 705). Moreover, the agreement expressly disclaimed any reliance on representations other than those set forth in the agreement. The husband's threat to cancel the wedding if the agreement was not signed did not establish duress (see Colello v. Colello, 9 AD3d 855, 858).
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.
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