Important New Decisions - April 27, 2012

Decision to  Impose a Suny Cap on Cost of Child’s College Education must Be Determined on a Case-by-case Basis, Considering Parties' Means and Child's Educational Needs.


In Tishman v Bogatin,--- N.Y.S.2d ----, 2012 WL 1392995 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order which directed defendant to pay 40% of the cost of the parties' older child's college education. It held that the motion court properly rejected defendant's contention that a so-called SUNY cap should be imposed on his obligation to contribute to the costs of the child's college education-that is, that his contribution should be based on the cost of an education at a college in the State University of New York system, because plaintiff failed to show that the child's needs cannot be met adequately at a SUNY college. Whether to impose a SUNY cap is determined on a case-by-case basis, considering the parties' means and the child's educational needs. A rule that, absent unusual circumstances, a parent's obligation is limited to the maximum SUNY tuition would be inconsistent with Domestic  Relations Law  240(1-b)(c)(7), which provides that a court may award educational expenses where it determines, "having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires," that the education sought to be paid for is appropriate.   The record supported the court's direction that defendant pay 40% of the costs of the parties' older child's education at a private college. The child attended an elite public high school, his reasons for preferring the private college over SUNY schools were sound, both parties attended private college and private law school, and both parties had the resources to pay the tuition at the private college where the child was enrolled




Where Judgment Does Not Accurately Incorporate the Provisions of a Stipulation of Settlement the Stipulation Prevails
                                                      
In  Ayrovainen v Ayrovainen, --- N.Y.S.2d ----, 2012 WL 1322433 (N.Y.A.D. 2 Dept.) the  Appellate Division observed that when a party alleges that a judgment does not accurately incorporate the provisions of a stipulation of settlement, the preferred remedy is to move in the trial court to resettle or vacate the judgment, rather than to appeal. Nevertheless, this Court may address the issue and, upon examining the stipulation and the judgment appealed from in this matter, it found that the latter did not conform to the former in several key respects including: the percentage of the college expenses of the parties' children for which the defendant was responsible, the date upon which the defendant's obligation to maintain the former marital residence would cease, under what conditions the defendant's maintenance obligation would terminate, and the manner in which the parties would claim their youngest child as a tax exemption. In addition, the judgment conflicted with the stipulation with respect to the defendant's responsibility to maintain a life insurance policy with the plaintiff as a beneficiary, whether the parties agreed that there would be a cost of living increase for the defendant's child support obligation, and whether the defendant was to assist the plaintiff with a potential sale of certain real property located in Livingston Manor. It remitted the matter to the Supreme Court to issue a corrected judgment which accurately reflects the terms of the parties' stipulation entered on the record in open court. .


Supreme Court Permits Amendment of Complaint to Add Irretrievable Breakdown Ground under  DRL § 170 (7) Rejecting Strack and Schiffer Decisions                                                     


In Palermo v Palermo, 2011 WL 7711557 (N.Y.Sup.), 2011 N.Y. Slip Op. 52506(U), the couple were married in 1977. In September 2000, the wife moved out of the marital residence. In 2001, the wife commenced a divorce action against the husband on grounds of cruel and inhuman treatment and a jury returned a verdict of no cause for action. In February 2011, the wife again filed a verified complaint, this time on the grounds that the marital relationship had broken down for a period in excess of six months. The husband answered, denying the allegations, and asserting an affirmative defense that the couple had lived separate and apart for a period of at least 10 years. The husband moved to dismiss the wife's complaint, arguing that the statute of limitations had expired on her claims, that they were barred by res judicata, and that the complaint failed to state a cause of action. The wife cross-moved to replead the claim under DRL §  170(7) to include the specific allegation that the marriage was irretrievably broken for a period of greater than six months. Because amendments to pleadings at the early stages of litigation are widely favored, the motion to amend and serve the complaint was granted. CPLR  3025(b).  The Court held that the verified statement of "irretrievable breakdown" of a marriage, in itself, without a trial, provided the necessary predicate to granting a divorce under the Domestic Relations Law. It examined the history of New York’s no fault divorce law. It observed that in Gleason v. Gleason, 26 N.Y.2d 28 (1970) the Court of Appeals pointed out that the legislature recognized "that it is socially and morally undesirable to compel a couple whose marriage is dead to remain subject to its bond."  The Gleason decision is important to the current question because it recognizes that the state legislature could fashion divorce remedies based on both parties consent to end their marriage without further testimony or evidence as to their private intentions. In this case, the question was whether the state legislature provided the same relief-divorce-based on the intentions of just one of the two partners to the marriage, without any inquiry into their intent or conduct by enacting DRL 170(7). It pointed out that under this statute the legislature no longer requires evidence of the "mutual contemporaneous intention" as required by the two previous no-fault grounds. Under DRL  170(7), one partner alone can declare the marriage is "dead" if sworn to under oath, in accordance with the statutory language. While a strict reading of the statute suggests that the declaration alone provides the basis for a divorce, the husband contended that he was entitled to a trial on this provision relying on  Strack v. Strack, 31 Misc.2d 258 (Sup.Ct. Essex Cty.2011), where, citing the Domestic Relations Law provision for a right to trial by jury, the court concluded that te legislature failed to include anything in the Domestic Relations Law   170(7) to suggest that the grounds contained therein are exempt from this right  to trial. Had it intended to abolish the right to a trial for the grounds  contained in the Domestic Relations Law, it would explicitly have done so. The court concluded that the question of whether a breakdown is irretrievable is a question of fact to be determined at trial.  In view of the Strack decision, there was an apparent collision of the no-fault entitlement under DRL 170(7), and the trial right under DRL 173. The court  resolved the statutory contradiction in light of the history and object of the enactment, in light of the facts which were found by the legislature to prompt its enactment. Malkin v. Wilkins, 22 A.D.2d 497 (4th Dep't 1965).   The legislative history of New York's newest no-fault statute demonstrates the legislature's recognition of this "evil" and the proposed "remedy." It is apparent that the legislature intended to provide estranged couples a simple and incontestable basis for ending their marriage, and avoid the squabbling over issues that flow from the other objective grounds in DRL 170.   In view of this intent, the court declined to follow the logic or holding of Strack. The court concurred with  A.C. v. D.R., 32 Misc.3d 293 (Sup. Cty. Nassau Cty.2011) that there is "no defense to the no-fault grounds."    This court also considered the opinion in  Schiffer v. Schiffer, 33 Misc.3d 795 (Sup.Ct. Duchess Cty.2011), which followed the logic of Strack, holding that the no-fault assertion under DRL § 170(7) was subject to the trial requirement. This court finds little in Schiffer that differed from the analysis in Strack and declines to follow it. The Schiffer court suggested that what is required, as a matter of fact finding under DRL  170(7), is that the relationship be irretrievably broken and a statement under oath by the party seeking the divorce. However, there is no "and" connecting the sworn statement provision and the " "irretrievable breakdown for six months" assertion. The legislature used another connector: "provided." The use of this word-" "provided"-rather than "and" means that the "irretrievable breakdown for six months" must be accepted as true "provided" one party swears that it is true. The court in Schiffer also raised a "due process" argument, claiming that the courts should not deprive a spouse of the right to trial on irretrievable breakdown and that to hold otherwise reduces the court to a "rubber stamp" when presented with a claim under DRL  170(7). This suggestion ignores the Court of Appeals directive in Gleason:  [R]ights growing out of the [marriage] relationship may be modified or abolished  by the Legislature without violating the provisions of the Federal or State  Constitution which forbid the taking of life, liberty or property without due  process of law.    Gleason v. Gleason, 26 N.Y.2d 28 (1970); see also  A.C. v. D.R., 32 Misc.3d 293, 306 (Sup. Cty. Nassau Cty.2011) (reasserting compelling conclusion of Gleason that there is no due process right to any defense in matters involving the dissolution of marriages).For these reasons, this court declined to follow Schiffer. 
   For these reasons, the defendant's motion to dismiss the complaint, because it
failed to state a cause of action, was denied. The court also denied the motion to dismiss for violation of the statute of limitations. There is no statute of limitations under DRL s 170(7) because the cause of action only arises at the time the party swears that the marriage has been irretrievably broken for a period in excess of six months. A cause does not accrue until there is "a legal right" to be enforced.  Hahn Automotive v. Amer. Zurish Ins. Co., 81 AD3d 1331 (4th Dep't 2011). The cause of action for divorce on the basis of irretrievable breakdown accrues at the time of the attestation by one partner and not sooner. The statute of limitations has no pertinence to a cause of action that arises at the time of the filing of the complaint. Finally, the court denied the defendant's motion to dismiss based on res judicata. Res judicata does not preclude the claim under DRL 170(7) because it is based on a different theory and cause of action. The jury finding that no cause of action for cruel and inhuman treatment existed a decade ago only applies to the facts before the jury at that time. It does not preclude this claim for a divorce on the grounds that one party has sworn that the marriage has been irretrievably broken for a period of excess six months.






Supreme Court Permits Amendment of Complaint to Add Irretrievable Breakdown Ground under  DRL § 170(7) Even Though Amendment States That the Act  
Shall Apply to Matrimonial Actions Commenced after the Effective Date




In G.C v G.C.,  2012 WL 1292729 (N.Y.Sup.), 2012 N.Y. Slip Op. 50653(U) Supreme Court permitted an amendment to a divorce complaint to add new causes of action under the Domestic Relations Law which arose after the filing of the complaint. The plaintiff brought a divorce action prior to October 10, 2010. He alleged that his wife had engaged in cruel and inhuman treatment toward him. The wife answered the complaint, denying the specific allegations. After the commencement, the parties lived apart. The wife moved to Ohio. During discussions over the status of the case, the wife made it clear that she would contest the grounds for the divorce. The husband moved to amend the complaint to assert two new grounds: a ground under Domestic Relations Law § 170(2) for abandonment and a claim under Domestic Relations Law § 170(7) for an "irretrievably broken" marriage. The wife opposed the abandonment amendment, arguing that the husband can not allege abandonment when it occurred during a year after the filing of complaint and that its assertion, now, after the action has been pending for more than two years, is untimely and prejudicial. She opposed he amendment on the grounds of under Domestic Relations Law § 170(7) because the complaint was filed prior to the effective date of the change.
Supreme Court observed that amendments were both made pursuant to CPLR 3025(b), which provides that amendments should be freely given or a complaint may be supplemented "by setting forth additional or subsequent transactions or occurrences, at any time by leave of court."CPLR 3025(b). An avalanche of authority directs that the leave to amend a complaint should be "freely granted" unless the proposed amendment is clearly and patently insufficient on its face.  Williams v. Ludlow's Sand & Gravel Co., 122 A.D.2d 612 (4th Dep't 1986).  A cause of action under Domestic Relations Law s 170(2) requires  allegations that a spouse's actual physical departure from the marital residence for one year is unjustified, voluntary, without consent of the plaintiff spouse, and with the intention of the departing spouse not to return. The amended complaint, on its face, met this minimal pleading requirement: it alleged that the wife left the marital residence in 2009, has not returned and her leaving was
without justification. The pleading stated the cause of action.  Under the weight of cases favoring "freely granting" amendments to complaint, the cause of action for abandonment, although it accrued while this action had been pending, was properly pleaded and did not lack merit.
 The Court pointed out that in October, 2010, the Legislature added a statutory
change to the Domestic Relations Law which created "no-fault divorce" and permitted one party to be granted the divorce upon a sworn declaration that the marriage was "irretrievably broken for a period in excess of six months" and the parties had agreed on all the issues related to support and equitable distribution The wife correctly noted that the statutory amendment states that the "act ... shall apply to matrimonial actions commenced after the effective date."It was  undisputed that the effective date was October 12, 2010. The clear intention of the Legislature, based on this language, was to not allow litigants to simply
amend their complaints, after the amendment took effect, and allow those claims to proceed to adjudication on the basis of the new "no-fault" allegations by claiming that the six months of "irretrievable breakdown" included time before the effective date of the amendment.  Nevertheless, the court granted his motion noting that the husband was not seeking any relief other than that sought in the original complaint: a divorce and accompanying property distribution. By virtue of the statutory change, the husband, having waited six months after its effective date, could now meet the time requirement of six months because all of the time accrued after the amendment took effect. The court reasoned that the husbands motion did not violate the language of the statute or the intention of the Legislature. Instead, he sought to invoke what the Legislature extended to him: a cause of action that has ripened because more than six months have passed since the date of the amendment and during that time, the husband swears that his marriage has been irretrievably broken. It pointed out that in  Gleason v. Gleason, 26 N.Y.2d 28 (1970), the Court held that a statutory amendment, which added subdivision (4) to Section 170 of the Domestic  Relations Law, could be used to permit an uncontested divorce to incorporate a separation agreement signed before the effective date of the statutory change. The Court of Appeals, in resolving the issue of the application of a new ground for divorce to an agreement, signed before the effective date of new statute, could not ignore the beneficial aspect of the statute and its goal of reducing tensions in obtaining final judgments in matrimonial cases. In this case, the change created by the addition of Section 170(7) paralleled the statutory change in Gleason v. Gleason: it simply provides another ground for a divorce. The new statute does not create greater rights for a spouse in a divorce. The no-fault change provides a speedy method for establishing the grounds and does not obviate the wife's right to insist on a trial regarding any and all financial issues related to the couple. The new change gives neither party any greater property rights. For these reasons, the language of CPLR 3025(b), the lack of any prejudice to the wife's property rights and the judicial command to "freely grant" such applications weigh heavily in favor of granting this motion.  The motion to amend to add claims under Section 170(4) and 170(7) was granted.