Important New Decisions - June 1, 2011

Family Court's Determination That the Subject Child Was Emancipated Pursuant to the Terms of the Parties' Stipulation Did Not Preclude the Subject Child from Filing His Own Support Petition

In Wakefield v Wakefield, --- N.Y.S.2d ----, 2011 WL 2089752 (N.Y.A.D. 2 Dept.) the parties October 2006 stipulation of settlement, which was incorporated but not merged into their judgment of divorce provided for joint legal custody of their two children. It further provided that the mother would have physical custody of the children and that both parents would provide child support until the happening of an emancipating event, which included either of the children's "permanent residence away from the residence of the wife." The parties were divorced on January 29, 2007, and, in October 2008, the subject child moved from his mother's home to the father's home. In March 2009 the father filed a petition seeking to modify the support provisions of the stipulation of settlement so as to receive child support from the mother, upon the ground that the subject child was living with him. After a hearing, the Support Magistrate granted the petition, finding that the subject child's residence with the father constituted a change in circumstances warranting an award of child support to the father. Family Court granted the mother's objections to the extent of "deeming" the subject child to be emancipated pursuant to the parties' stipulation, and dismissed the father's petition. On September 24, 2009, the subject child filed his own petition seeking support from his mother. At a hearing on the petition, both the subject child and the father testified that the subject child was 18 years old, that he lived with the father, and that he attended Suffolk Community College full time. In an order dated February 8, 2010, the Support Magistrate granted the subject child's support petition. Family Court denied the mother's objection to the order dated February 8, 2010, rejecting her contention that the subject child was emancipated and, not entitled to child support. It also rejected the mother's contentions that the award was not based upon adequate evidence, and that a child who commences a support proceeding on his or her own behalf may not be awarded an attorney's fee. The Appellate Division held that the Family Court's determination that the subject child was emancipated pursuant to the terms of the parties' stipulation did not preclude the subject child from filing his own support petition. "A husband and wife, in entering into a separation agreement, may include in that agreement provisions pertaining to the support of the children of their marriage. The terms, like any other contract clauses, are binding on the parties to the agreement. The child, on the other hand, is not bound by the terms of the agreement ... and an action may be commenced against [a parent] for child support despite the existence of the agreement" (citing Matter of Boden v. Boden, 42 N.Y.2d 210, 212). Since the subject child moved from his mother's residence to the father's residence with his parents' consent, the subject child was entitled to adequate support from his mother. It also held that the Family Court properly rejected the mother's contention that the child was not entitled to an award of an attorney's fee (citing Family Ct Act 422 [a], 438[a] ).

Motions to Enforce the Terms of a Stipulation of Settlement Are Not Subject to Statutes of Limitation. An Application or Motion for the Issuance of a QDRO Is Not Barred by the Statute of Limitations

In Denaro v Denaro, --- N.Y.S.2d ----, 2011 WL 2090821 (N.Y.A.D. 2 Dept.) the plaintiff former wife and the defendant former husband, who was a police officer employed by the New York City Police Department, were married in 1981. By a judgment entered July 2, 1997, they were granted an uncontested divorce. In a Stipulation and Agreement of Settlement, which was incorporated but not merged into the judgment of divorce, the parties agreed that the plaintiff would be entitled to a certain percentage of the marital portion of the defendant's police retirement benefits. The parties acknowledged in the stipulation that a valuation of those benefits had been performed, and they agreed that that valuation would "be utilized to prepare a Qualified Domestic Relations Order to be submitted to the Court as soon as practicable after the Judgment of Divorce is signed." No Qualified Domestic Relations Order was submitted at that time. The defendant retired from the NYPD in 2003, after 20 years of service, and he began collecting his pension. In January 2010 the plaintiff submitted a proposed QDRO to the Supreme Court, requesting the Supreme Court to enforce the stipulation to the extent of issuing an appropriate QDRO. The defendant moved to vacate the retirement provision of the stipulation. Supreme Court granted the plaintiff's application and denied the defendant's motion. The Appellate Division held that contrary to the defendant's contention, the statute of limitations does not bar issuance of the QDRO. It held that motions to enforce the terms of a stipulation of settlement are not subject to statutes of limitation.. Because a QDRO is derived from the bargain struck by the parties at the time of the judgment of divorce, there is no need to commence a separate 'action' in order for the court to formalize the agreement between the parties in the form of a QDRO. It pointed out that the Court had expressly held that an application or motion for the issuance of a QDRO is not barred by the statute of limitations (citing Bayen v. Bayen, 81 AD3d at 866-867). The defendant also contended that the plaintiff's failure to submit the QDRO to the Court within 60 days of entry of the divorce judgment (see 22 NYCRR 202.48) barred its issuance thereafter. The Appellate Division found defendant's contention to be without merit because that court rule does not apply to a QDRO, which is merely a mechanism to effectuate payment of a party's share in a retirement plan. The plaintiff's right to her share of the defendant's pension was created by the stipulation and the judgment of divorce, and it was not abandoned when the QDRO was not filed within 60 days. It also rejected the defendant's claim that the doctrine of laches barred the plaintiff's entitlement to the QDRO. Invocation of laches requires a showing of both delay and prejudice. The delay in submitting a QDRO for execution was lengthy, but the defendant had not shown any prejudice to himself resulting from the plaintiff's delay. The Court also rejected defendant's claim that the plaintiff waived her right to her share of the defendant's retirement benefits. The plaintiff's delay in submitting the QDRO to the Supreme Court did not evince an intent to waive her rights. Waiver does not result from negligence, oversight, or inattention, and it may not be inferred merely from silence.

An Interim Restraint on the Disposition or Encumbrance of Property Should Not Be Imposed Absent a Demonstration That the Party to Be Restrained Has Done, or Is Threatening to Do, an Act Which Would Prejudice the Movant's Equitable Distribution Claim.

In Many V Many, --- N.y.s.2d ----, 2011 Wl 1902259 (N.y.a.d. 2 Dept. The Wife Appealed from an Order Denying Her Motion to Restrain the Defendant Husband from Encumbering the Marital Residence, and in Effect, Authorized the Defendant to Refinance the Equity in the Marital Residence and to Use Any Funds Obtained Therefrom for the Sole Purpose of Paying His Pendente Lite Maintenance Obligation. The Order Also Directed the Defendant to Pay Arrears for His Pendente Lite Maintenance Obligation Retroactive to Only February 1, 2010, and Awarded Her an Attorney's Fee of $15,000. The Appellate Division Held That Supreme Court Did Not Improvidently Exercise its Discretion in Failing to Restrain the Defendant Husband from Encumbering the Marital Residence. It Pointed out That an Interim Restraint on the Disposition or Encumbrance of Property Should Not Be Imposed Absent a Demonstration That the Party to Be Restrained Has Done, or Is Threatening to Do, an Act Which Would Prejudice the Movant's Equitable Distribution Claim. Here, No Evidence Indicated That the Defendant Had Done, or Was Threatening to Do, an Act That Would Threaten the Plaintiff's Equitable Distribution Claim. The Court Noted That While the Plaintiff May Be Entitled to an Equitable Share of the Value of the Marital Residence, That Issue Had Yet to Be Adjudicated. At a Later Date, the Supreme Court Would Be Able to Ensure That the Plaintiff Was Reimbursed for Her Equitable Share of Any Funds Used by the Defendant as a Result of the Sale or Refinancing of the Marital Residence to Meet His Pendente Lite Maintenance Obligation.

Family Court Act Provides for the Award of an Attorney's Fee Only to a Prevailing Party in a Violation Proceeding

In Matter of Shvetsova v Paderno, --- N.Y.S.2d ----, 2011 WL 1902198 (N.Y.A.D. 2 Dept.) the father appealed from an order of the Family Court which denied his objection to an order of the Court which granted the mother's motion for an award of an attorney's fee and awarded her $11,500. The Appellate Division observed that the attorney's fee at issue was awarded to the mother for legal fees she incurred in defending against the father's petition for a downward modification of his child support obligation, and in prosecuting her petition to hold the father in civil contempt for his alleged violation of a prior support order. In a related appeal, it reversed the Family Court's denial of the father's petition for downward modification of his child support obligation and remitted the matter to the Family Court for a new determination of the father's child support obligation and arrears. In light of the decision and order in the related appeal, it reversed the award of an attorney's fee to the mother insofar as it was in connection with her defense against the father's petition. In addition, in the same related appeal, it reversed the Family Court's finding that the father willfully violated the prior support order. Therefore, although the Family Court Act provides for the award of an attorney's fee to a prevailing party in connection with a violation proceeding (see Family Ct Act 438 [b] ), here, the mother was not entitled to such an award. Accordingly, it directed that after the Support Magistrate makes a new determination of the father's petition for a downward modification of his child support obligation, in accordance with its decision and order in the related appeal, the Support Magistrate shall make a new determination on the mother's motion for an award of an attorney's fee. Any award of an attorney's fee, if warranted, shall be limited to fees incurred in connection with the mother's defense against the father's petition.

Family Court Act 1028 Hearing Is Triggered by the Removal of a Child from the Home

In Matter of Lucinda R, --- N.Y.S.2d ----, 2011 WL 1902203 (N.Y.A.D. 2 Dept.) the question presented on this appeal was whether a Family Court Act 1028 hearing is triggered by the removal of a child from the home of one parent and temporary placement into the custody of another parent or relative, or whether such hearing is triggered only where a child is placed into government-administered foster care. The Appellate Division concluded that the Family Court erred in denying the mother's application for a hearing under Family Court Act 1028. In relevant part, that section provides: "(a) Upon the application of the parent or other person legally responsible for the care of a child temporarily removed under this part or upon the application of the [attorney for the child] for an order returning the child, the court shall hold a hearing to determine whether the child should be returned (i) unless there has been a hearing pursuant to [Family Court Act 1027] on the removal of the child at which the parent or other person legally responsible for the child's care was present and had the opportunity to be represented by counsel, or (ii) upon good cause shown. Except for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned." The disposition of the mother's application here turned on the meaning of the word "removal," as used in the statute. The Family Court found that there was no removal within the meaning of Family Court Act 1028 because "when a child is moved from the [petitioner's] home to the non respondent father's home [,] that ... is not a removal and it does not generate a basis for a 1028 hearing." The Family Court reasoned that "1028 hearings protect the primacy of parental right[s] as against the state, not as against the parent vs. parent."
Justice Belen wrote that the Appellate Division disagreed. In assessing the Family Court's interpretation of the statute, it begins with the language of the statute itself, "as the statutory text is the clearest indicator of legislative intent. If the terms of the statute are clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used. On its face, Family Court Act 1028 does not limit a hearing only to parents whose children have been placed in the custody of a governmental agency. There is no qualification to its application whatsoever. It plainly and simply states that, upon the application of a parent of a child who has been temporarily removed, the court shall hold a hearing to determine whether the child should be returned, and this must be done within three court days without adjournment. The Court pointed that that these rules of strict construction, however, cannot be applied without regard to the statute as a whole, as its various sections must be considered together and with reference to each other. The purpose of article 10 of the Family Court Act is to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that the child's needs are properly met. (Family Ct Act 1011). The Appellate Division held that the Family Court's finding of a legal distinction between a child's removal from the home and placement in the custody of another parent, on one hand, and placement in the custody of a governmental agency, on the other hand, was illusory. In either case, it is the State acting within its parens patriae power effectuating that transfer and removal. Accordingly, the Court found that that the applicability of a Family Court Act 1028 hearing is not dependent on whether the child removed is placed with another parent or whether the child is placed in foster care. In sum, the trigger is that the State has acted to effectuate the removal of the child from the home and placed him or her in the custody of another.

Allegations of a Family Offense Are Not Subject to the Defense of Laches or Statute of Limitations. The Issue in Family Offense Matters Is Not the Age of the Threat but the Imminence of the Danger.

In Matter of Opray v Fitzharris, --- N.Y.S.2d ----, 2011 WL 1902204 (N.Y.A.D. 2 Dept.), the wife initiated a family offense proceeding on or about April 7, 2010, alleging that the husband committed the family offenses of assault and aggravated harassment during various incidents occurring in April 2001 and December 2006, as well as on January 6, 2010, April 3, 2010, and April 6, 2010. The Appellate Division held that the Family Court properly dismissed allegations in the petition regarding incidents alleged to have occurred in April 2001 and December 2006. It pointed out that allegations of a family offense are not subject to the defense of laches or statute of limitations (citing Matter of Ashley P., 31 AD3d 767, 769; Matter of Nina K. v. Victor K., 195 Misc.2d 726, 727). The issue in family offense matters is not the age of the threat but the imminence of the danger. (Matter of Nina K. v. Victor K., 195 Misc.2d at 727). Here, in addition to the remoteness of the allegations, the Family Court properly determined that they did not bear upon the existence of an "immediate and ongoing danger" to the wife or children (see Family Ct Act 827). However, it found that the Family Court erred in determining that the wife failed to establish a prima facie case of aggravated harassment with respect to the incident alleged to have occurred on April 6, 2010. In determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom. The question of credibility is irrelevant, and should not be considered. Here, viewing the wife's testimony in the light most favorable to her, and accepting her testimony as true, the wife failed to establish a prima facie case of assault in the third degree or aggravated harassment in the second degree with respect to the incident alleged to have occurred January 6, 2010. The wife did, however, establish a prima facie case of aggravated harassment in the second degree based on her testimony that during a telephone conversation on April 6, 2010, the husband threatened, among other things, to find her and kidnap the children (see Penal Law 240.30[1][a] ). The petition was reinstated and the matter remitted to the Family Court, for a new fact-finding hearing and for a new determination of the petition with respect to the allegations regarding the events of April 6, 2010.

Defense of Action for Fraudulent Misrepresentation Is Not an Enforcement of Rights Within Meaning of Counsel Fee Provision of Agreement

In Etzion v Etzion, --- N.Y.S.2d ----, 2011 WL 1902589 (N.Y.A.D. 2 Dept.), an action, inter alia, to recover damages for fraudulent misrepresentation in connection with negotiations relating to a stipulation of settlement dated June 8, 2005, which was incorporated, but not merged, into the parties August 16, 2005 judgment of divorce, the facts of the action were set forth in the decision and order on a prior appeal (see Etzion v. Etzion, 62 AD3d 646). On this appeal, the plaintiff contended that the Supreme Court erred in denying her motion pursuant to CPLR 3211(a)(1) and (7) to dismiss a counterclaim asserted by the defendant former husband, Rafael Etzion (defendant), for an award of an attorney's fee pursuant to the terms of a stipulation of settlement entered into by the defendant and the plaintiff on June 8, 2005, or, in the alternative, for summary judgment dismissing the counterclaim. The Appellate Divison observed that the fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent. Where the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence. Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. Courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing. Thus, a court will not imply a term where the circumstances surrounding the formation of the contract indicate that the parties, when the contract was made, must have foreseen the contingency at issue and the agreement can be enforced according to its terms. The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court. It found that the defendant's counterclaim for an award of an attorney's fee was based on an overbroad reading of an attorney's fee provision in the parties' stipulation of settlement executed on June 8, 2005 which was subsequently incorporated, but not merged, into their judgment of divorce. The parties' separation agreement, at Article XXV, paragraph 3, stated, in relevant part: "In the event either party is forced to seek aid of counsel in enforcing any rights pursuant to this Stipulation, and in the event that party is successful in enforcing such right(s), the other shall reimburse him or her for any reasonable attorneys' fees necessarily incurred in enforcing such rights. The provisions of this paragraph shall be in addition, and without prejudice or limitation, to any other rights or remedies to which the aggrieved party may be entitled. The parties agree that the purpose of this paragraph is to prevent unnecessary litigation between them and to encourage each to fulfill his or her responsibilities under the terms of this Stipulation as fully as possible" The defendant, in his counterclaim, asserted that he was entitled to an award of an attorney's fee pursuant to the fees provision because he had been forced, in effect, to defend his rights under the separation agreement. However, the agreement clearly and unambiguously provided that only the party seeking to enforce any rights under the agreement shall be entitled to an attorney's fee, if successful. The defendant was not enforcing any rights under the agreement by simply defending against the plaintiff's motion. Had the parties intended the fees provision to be construed as the defendant contended, they were free to expressly so provide. The Court pointed out that where documentary evidence utterly refutes the proponent's factual allegations, conclusively establishing a defense as a matter of law, a motion to dismiss may be properly granted. Based upon the documentary evidence, consisting of the agreement, the plaintiff conclusively established, as a matter of law, that the defendant was not entitled to an award of an attorney's fee, regardless of the outcome of the current dispute. Accordingly, the Supreme Court erred in denying the plaintiff's motion to dismiss the defendant's counterclaim pursuant to CPLR 3211 (a)(1).

Stipulation Void as Against Public Policy, since it Expressly Required the Former Wife to Seek Dissolution of the Marriage and "Provided for the Procurement of Grounds of Divorce

In Charap v Willett, --- N.Y.S.2d ----, 2011 WL 1902605 (N.Y.A.D. 2 Dept.), the parties were divorced by judgment dated March 30, 2009. In a related appeal the Appellate Diviison affirmed the judgment of divorce insofar as appealed from. The former wife initially contested the divorce action commenced in 2003. After a nonjury trial, the Supreme Court determined that the former husband failed to prove his alleged grounds for divorce. The parties then entered into a custody agreement and the former wife filed an amended answer dated May 7, 2007, containing a counterclaim for a divorce on the ground of cruel and inhuman treatment. The former husband waived his reply and, while neither admitting nor denying the allegations, consented to the former wife obtaining a divorce on that ground. A nonjury trial was held on the financial issues, and a judgment of divorce was issued on March 30, 2009. By order to show cause dated July 29, 2009, the former wife moved, inter alia, to direct the former husband to comply with a theretofore confidential stipulation between the parties dated May 7, 2007, and to pay back maintenance and child support in the sum of $13,587.61, plus interest. The stipulation was subscribed by the parties and notarized, but, in accordance with its provisions, was kept confidential from the court during the trial on financial issues. In the stipulation, the former husband agreed, inter alia, to pay the former wife $65,000 over and above a future equitable distribution award, and to pay her counsel $10,000. In exchange, the former wife agreed to promptly prepare an amended answer and counterclaim for a divorce alleging cruel and inhuman treatment. As soon as the court placed the matter on its calendar, the parties would proceed to inquest whereby the grounds for a divorce would be finally and irrevocably determined. The Supreme Court denied the former wife's motion, finding the stipulation unenforceable and her claim of entitlement to back maintenance and child support without merit. The Appellate Divison affirmed. It held that the May 7, 2007, stipulation was void as against public policy, since it expressly required the former wife to seek dissolution of the marriage and "provides for the procurement of grounds of divorce" (General Obligations Law 5-311). As the offending provision represented the only consideration provided by the former wife for the agreement, which did not contain a severability provision, the stipulation was void in its entirety (cf. Taft v. Taft, 156 A.D.2d 444).

Supreme Court providently imputed $200,000 per year in income to the former wife, an attorney, for child support purposes.

In Charap v Willett, --- N.Y.S.2d ----, 2011 WL 1902606 (N.Y.A.D. 2 Dept.) the parties were married in 1982. There were two children of the marriage, born in 1990 and 1995, respectively. The former husband left the marital residence in December 2002 and commenced this action for a divorce on March 17, 2003. After a nonjury trial on grounds for divorce, the Supreme Court determined that the former husband failed to prove his alleged grounds for divorce. On May 7, 2007, the parties entered into a "Stipulation as to Custody, Decision-Making and Parental Access," and the former wife filed an amended answer containing a counterclaim for divorce on the ground of cruel and inhuman treatment. The former husband waived his reply and, while neither admitting or denying the allegations, consented to the former wife obtaining a divorce on that ground. After an inquest, the divorce was granted, but entry of the divorce judgment was held in abeyance pending the resolution of ancillary issues. The matter was transferred for trial on the remaining financial issues. After a nonjury trial, the Supreme Court, inter alia, distributed the marital estate and directed the former husband to pay the former wife durational maintenance in the sum of $5,000 per month for two years. The court also imputed income to the former wife for child support purposes, pro-rated the parties' obligations, and directed the former husband to pay the former wife $3,859.34 per month in child support, plus direct payments of the children's college expenses and other add-ons. The Appellate Divison affirmed. It held that Supreme Court properly rejected the former wife's request for lifetime maintenance. First, a purported agreement dated March 19, 2001, which provided, inter alia, that the former wife would not be required to work outside the family home during a divorce, was ambiguous as to duration and, in any event, was not enforceable (see Domestic Relations Law 236[B][3] ). Moreover, the former wife was an attorney who practiced law for almost 20 years and was capable of earning a significant salary. Given her skills, experience, and the children's mature ages, the Supreme Court appropriately limited maintenance to $5,000 per month for a period of two years. It also held that Supreme Court providently imputed $200,000 per year in income to the former wife for child support purposes. Child support is determined by the parents' ability to provide for their child rather than their current economic situation. In determining a party's child support obligation, the court 'need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential. Courts are afforded considerable discretion in determining whether to impute income to a parent. Here, given the former wife's education, experience, and salary history, the imputed sum was supported by the record. Further, the court properly considered the statutory factors in capping the combined parental income at $300,000 for child support purposes, and there was no basis in this record for disturbing its determination. It held that Supreme Court providently awarded the former wife only 10% of the value of the former husband's law practice. The former wife made only indirect contributions to the former husband's career and was herself employed as an attorney for most of the marriage. The Supreme Court providently exercised its discretion in denying the former wife's application for counsel fees, as she received a large distributive award and had a substantial earning capacity.