Important New Decisions - April 18, 2011

Party Must Prevail on All Issues to Be Awarded Counsel Fee Pursuant to Agreement Provision

In Matter of Bederman v Bederman, --- N.Y.S.2d ----, 2011 WL 749719 (N.Y.A.D. 2 Dept.) the parties' stipulation of settlement which was incorporated but not merged into their judgment of divorce entered September 24, 2004, provided that in the event the parties agreed, or a court determined, that the parties' child should attend private preschool, elementary, or secondary school, the parties would proportionately share any educational expenses. The mother commenced a proceeding seeking reimbursement from the father for private school tuition and to direct the father to pay his proportionate share of religious education expenses. The Appellate Division fount that the record supported the Support Magistrate's findings that the father was not required to pay certain private school tuition payments for previous years which were gifts from the maternal grandmother, and that the father was not required to pay for religious education expenses under the terms of the parties' stipulation of settlement. The Support Magistrate also properly denied the mother's request to direct the father to pay his monthly child support through the Nassau County Support Collection Unit pursuant to Family Court Act 440(2). The stipulation of settlement provided for an alternate arrangement for the payment of child support in the form of direct payment to the mother unless the father defaulted in his child support payments and the record established that the father was not in arrears on his child support obligations. It also held that the mother was not entitled to an award of an attorney's fee, as she did not prevail on all issues (citing D'Amico v. D'Amico, 251 A.D.2d 616).

Court Cannot Issue a QDRO More Expansive or Encompassing Rights Not Provided in Underlying Stipulation

In Coulon v Coulon, --- N.Y.S.2d ----, 2011 WL 924351 (N.Y.A.D. 2 Dept.) the defendant appealed from so much of a Qualified Domestic Relations Order of the Supreme Court as designated the plaintiff as a surviving spouse under the pre-retirement and post-retirement survivor annuity provisions of his pension plan, and directed that she receive a share of such benefits in the event of his death. On the Court's own motion, the appellant's notice of appeal was treated as an application for leave to appeal, and leave to appeal was granted (see CPLR 5701[c] ). The Qualified Domestic Relations Order was reversed on the law and the matter was remitted to the Supreme Court for the entry of an amended Qualified Domestic Relations Order in accordance. The Appellate Division observed that a Qualified Domestic Relations Order entered pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment. Thus, a court cannot issue a QDRO more expansive or encompassing rights not provided in the underlying stipulation. Here, the parties' 1992 stipulation of settlement, which was incorporated but not merged in their judgment of divorce, provided for the plaintiff to receive a share of the defendant's pension in accordance with Majauskas v. Majauskas (61 N.Y.2d 481). However, "pension benefits and death benefits are two distinct matters" ( Kazel v. Kazel, 3 NY3d 331, 334), and a stipulation which is silent as to death benefits cannot be read to include an intent to include such benefits (McCoy v. Feinman, 99 N.Y.2d at 303). Since the parties' stipulation contained no provision entitling the plaintiff to be designated as a surviving spouse under the pre-retirement and post-retirement survivor annuity provisions of the defendant's pension plan and to receive a share of such benefits in the event of his death, it was error for the Supreme Court to include such a provision in the QDRO.

Decision Denying Mothers Request to Relocate with Children Reversed Where Family Court Did Not Give Appropriate Weight to Domestic Violence.

In Matter of Clarke v Boertlein, --- N.Y.S.2d ----, 2011 WL 924280 (N.Y.A.D. 2 Dept.), Family Court awarded the mother custody of the parties' three children, but denied her motion for permission to relocate with the parties' three children to Pennsylvania. The Appellate Divison reversed the order and granted her permission to relocate. The parties were the parents of three children, ages 10, 6, and 4. In August 2008 the mother removed the children from their home in Yaphank, New York, and moved to Bellefonte, Pennsylvania, where one of her sisters resided, allegedly to escape the father's domestic violence. The mother obtained an order of protection and temporary custody from a court in Pennsylvania. In November 2008 the mother reconciled with the father and returned with the children to New York, only to leave with the children again to Pennsylvania in April 2009. The father then commenced this proceeding in the Supreme Court (IDV Part), seeking custody of the children. The mother moved for an award of custody and permission to relocate with the children to Pennsylvania. After a hearing, the Supreme Court awarded the mother custody, but denied her request for permission to relocate with the children to Pennsylvania. The Appellate Divison pointed out that the disposition of a petition for permission to relocate with minor children rests upon a determination of the best interests of the children. Moreover, "[d]espite the multitude of factors that may properly be considered in the context of a relocation petition, the impact of the move on the relationship between the child[ren] and the noncustodial parent will remain a central concern" (Matter of Tropea v. Tropea, 87 N.Y.2d at 739). Upon its review of the record, it found that Supreme Court's determination to deny the mother permission to relocate with the children to Pennsylvania lacked a sound and substantial basis in the record. The record demonstrated that the mother had at all times served as the primary caregiver to the children and had displayed a continued commitment to their needs, whereas the father showed little involvement with the children when the parties lived together. The Supreme Court failed to give enough weight to the mother's allegations of domestic violence, often in the presence of the children, which permeated the parties' relationship and caused the mother to remove herself and the children from the parties' home. While the father denied that there was any domestic violence in the home, the Supreme Court noted that the father exhibited his temper during the course of the hearing when he left the witness stand while yelling at the mother's attorney. The father also admitted that he engaged in harassing and intimidating behavior after the mother left, such as calling the mother's cell phone numerous times each day, questioning the oldest child as to the mother's whereabouts, and placing a tracking device on the mother's car. Contrary to the Supreme Court's finding, the mother's move to Pennsylvania did not appear to have been motivated by bad faith but, rather, was an opportunity to escape domestic violence in the home, to reside in close proximity to supportive family members, and to secure affordable housing. The mother testified as to her unsuccessful attempts to obtain affordable housing on Long Island, and compared those attempts to her ability to secure a suitable rental home in Pennsylvania near where her sister resides with her family and the maternal grandmother. Testimony also revealed that the children were adapting well to their new surroundings, and were living with their half-brother in close proximity to their aunt and maternal grandmother, and that the two oldest children were attending school and receiving educational services. In contrast, the record suggested that the father opposed the relocation in order to harass the mother and in order to keep the mother in close proximity to facilitate his efforts to reconcile with her.

Divorce Based upon Cruelty Affirmed Where Husband Threatened to Kill Wife

In Siu Nam Wong Pun v Che Kwok Pun, --- N.Y.S.2d ----, 2011 WL 1046040 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order which granted plaintiff a divorce on the grounds of cruelty. Plaintiff testified that during the marriage, defendant regularly lost his temper and yelled at her, verbally abused and demeaned her, and made disparaging remarks in response to her cancer diagnosis. She further testified that several years before she commenced this action, defendant choked her. In addition, she testified that he frequently yelled at her insisting that the family had to listen to him because he was the master of the household. Plaintiff recounted defendant's threat to kill her if she sought a divorce, and explained that she ultimately moved out because she feared defendant and was concerned for her safety. This testimony, portions of which were corroborated by the testimony of the parties' adult son, was sufficient to support the finding of cruel and inhuman treatment. Although plaintiff periodically returned to the marital residence after she moved out, she credibly explained that she did so to cook and clean the residence for her sons, who resided there. The lower court was not persuaded by defendant's claim that this behavior undermined plaintiff's contention that it was unsafe and improper for her to cohabit with defendant, and the Appellate Division agreed with that determination. Moreover, plaintiff testified that when she did return on occasion, defendant scolded and berated her.

Appellate Division Affirms Order Denying Counsel Fee to Attorney Who Agreed to Accept Litigation Assignment with No Guarantee of Compensation

In Moccia v Moccia, --- N.Y.S.2d ----, 2011 WL 1088033 (N.Y.A.D. 2 Dept.) the defendant wife in this divorce action was unable to afford counsel. The Supreme Court assigned the nonparty-appellant, Eric Ole Thorson (appellant), to represent the wife without compensation from her, "without prejudice to [a] motion by counsel for compensation pursuant to CPLR 1102(d), DRL Section 237, Judiciary Law Section 35 or as otherwise provided by law." The parties engaged in discovery, prepared for trial, and successfully negotiated a settlement agreement. The Supreme Court denied the appellant's motion for an award of an attorney's fee to be paid by the plaintiff husband. The Appellate Division affirmed. It pointed out that a court may award an attorney's fee in a divorce action to a spouse to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties (Domestic Relations Law s 237[a]). While the husband's income from the Yonkers Parking Authority was greater than the wife's income, his earnings were nevertheless modest and they were expended, in large part, on the wife and their children, as he paid, among other things, the mortgage and home equity loan, plus utilities on the marital home. In this regard, the Supreme Court properly considered the terms of the parties' settlement agreement and statements of net worth, which reflected the husband's income and expenses, limited assets, outstanding mortgage, the absence of savings, and debt to his own counsel, in determining that the parties' financial circumstances were "not that disparate so as to warrant an award of counsel fees." The Appellate Division commended any attorney who, as here, agrees to accept a litigation assignment with no guarantee of compensation, but held that the denial of an award of an attorney's fee in this case was not an improvident exercise of the Supreme Court's discretion. Judges Austin and Belen dissented.

Supreme Court Lacked Jurisdiction to Impose Obligations in the Amended Judgment upon the Nonparty-appellant Insurance Company

In Flangos v Flangos, --- N.Y.S.2d ----, 2011 WL 1088123 (N.Y.A.D. 2 Dept.) the Appellate Division held that Supreme Court lacked jurisdiction to impose obligations in the amended judgment upon the nonparty-appellant insurance company. A court has no power to grant relief against an entity not named as a party and not properly summoned before the court (Riverside Capital Advisors, Inc. v. First Secured Capital Corp., 28 AD3d 457, 460). Accordingly, the Supreme Court should have granted that branch of the nonparty-appellant's motion which was to vacate so much of the amended judgment as directed it to make certain payments. Similarly, the Supreme Court erred to the extent that it, sua sponte, in effect, amended a provision in the amended judgment directing the nonparty-appellant to give notice of stated proposed changes in the payments. Contrary to the plaintiff's contention, the amended judgment itself was not a proper income execution order under CPLR 5241, nor is it a proper income deduction order under CPLR 5242.

Supreme Court Erred in Directing Husband to Transfer to Wife Title to Property Owned by a Corporation over Which the Supreme Court Lacked Jurisdiction.

In Manning v Manning, --- N.Y.S.2d ----, 2011 WL 1088041 (N.Y.A.D. 2 Dept.) the Appellate Divison observed that in order to sustain a finding of civil contempt under Judiciary Law 753 based on a violation of a court order, it is necessary to establish by clear and convincing evidence that a lawful court order clearly expressing an unequivocal mandate was in effect, that the person alleged to have violated the order had actual knowledge of its terms, and that the violation has defeated, impaired, impeded, or prejudiced the rights of a party . Here, the evidence was sufficient to establish that the defendant knowingly disobeyed the Supreme Court's order directing him to pay an expert to ascertain the value of his business and also failed to comply with the pendente lite support order. Consequently, the Supreme Court properly adjudicated the defendant in contempt of court. It noted that a court is not required to rely upon a party's account of his or her finances in determining that party's income. It agreed with the defendant that the Supreme Court erred in directing him to transfer title to certain commercial real property to the plaintiff. The commercial property at issue was owned by a corporation over which the Supreme Court lacked jurisdiction.