New York City

Published on: September 2, 2013

Father Incarcerated for Failure to Pay Child Support

by Stephen Bilkis

In a support proceeding pursuant to Family Court Act article 4, the appeal is from an order of the Family Court, Suffolk County, which directed that the appellant be imprisoned for 48 days. By decision and order, the court dismissed the appeal as academic.

A New York Family Lawyer said that pursuant to the 1985 judgment entered in the parties’ divorce action, the father was obligated to pay $250 a week in child support for their four children, or $62.50 a week per child. In 1989, the father petitioned for a downward modification based on their oldest daughter’s emancipation and because the father then had custody of the parties’ oldest son. The mother petitioned for an increase in support. Following a hearing which was held over a period of almost one year, the Hearing Examiner issued an order, which obligated the father to pay child support of $400 a week for the two children, who remained in the mother’s custody, retroactive to July 1989. Beginning in January1991, daughter’s 21st birthday, the father was required to pay child support of $300 a week for the son. The Hearing Examiner concluded that the testimony of the father, a self-employed certified public accountant, regarding his finances was not credible and imputed income to him of $150,000 a year. A New York Custody Lawyer said that since the order was made retroactive to the date the petition was filed, substantial arrears had accumulated. In an order, the Family Court, Suffolk County denied the father’s objections to the Hearing Examiner’s order.

The father appealed from the order and that appeal was transferred to the Appellate Division, Fourth Department. Later, while the appeal was pending, the mother moved for an order to hold the father in contempt for his failure to pay support pursuant to the order. A Queens Family Lawyer said the father, by cross petition, sought a downward modification of support. The matter was heard by a different Hearing Examiner than the one who issued the order, who concluded that the father failed to comply with the support order, that his noncompliance was willful, and that his testimony as to his finances was incredible. At that point, the arrears totalled over $46,000. In May 1993, the Family Court confirmed the Hearing Examiner’s finding that the father’s failure to comply with the prior order was willful, found him in contempt, and sentenced him to 48 days in jail unless he purged his contempt by paying $24,000 towards the arrears. The father served the period of incarceration and was released in July 1993.

Published on: September 1, 2013

Court Appoints Legal Guardian for Institutionalized Child

by Stephen Bilkis

The issue presented is whether the trial court properly relieved the complainant’s natural guardian and replaced her with an attorney.

A New York Family Lawyer said a two weeks-years-old infant was diagnosed with infantile impetigo. His pediatrician prescribed an antibacterial skin cleanser, to be rubbed into the blisters on the skin with each diaper change and then rinsed off. The infant’s mother claims that within 48 hours after she started applying the antibacterial skin cleanser, the baby became very irritable, with greenish stools and flaking skin. The mother used the entire 16-ounce bottle within nine days and thereafter renewed her prescription.

Subsequently, the infant’s pediatrician diagnosed the infant’s condition with diaper rash, but the mother claims that the pediatrician urged her to continue the use of the antibacterial skin cleanser. The infant allegedly continued to be irritable and have loose, foul-smelling, green-colored stool. Further, unusual body movements, such as twitching, stiffening, and staring were observed, and the baby was diagnosed with seizures.

Published on: August 31, 2013

Father Seeks to Obtain Child Support

by Stephen Bilkis

In a child support proceeding, the father appeals from an order of the Family Court which denied his objections to two orders of the same court which awarded the petitioner with child support based on a determination of his gross income and counsel fee.

A New York Family Lawyer said the order is modified on the law and as a matter of discretion, by deleting the provision thereof denying the appellant’s objection to the order directing him to pay a counsel fee in the sum of $20,000, and substituting a provision sustaining the objection to the extent of directing him to pay a counsel fee and deleting the provision thereof denying his objection to the order awarding the mother child support and substituting a provision sustaining the objection to the extent of granting his application for a mortgage payment credit against his investment income on his investment property; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court for further proceedings consistent herewith, including a new determination of child support.

Although the matter of counsel fees is entrusted to the sound discretion of the trial court, it is nonetheless to be controlled by the equities of the case and the financial circumstances of the parties. Given the financial circumstances of the parties, as well as all the other circumstances of this case, the Family Court improvidently exercised its discretion in awarding the mother the sum of $20,000 in counsel fees.

Published on: August 30, 2013

Court Discussed the Need for Injured Father to Have a Legal Guardian

by Stephen Bilkis

A New York Family Lawyer said a couple obtained a divorced pursuant to a decision of the court. In addition, the condition also ordered that the father was obligated to keep and maintain hospital and medical insurance coverage, or better coverage, for the benefit of the children, as long as he is obligated to make child support payments. The decision further provided that the father shall claim his youngest child as an exemption on his personal income tax returns for income tax purposes as long as he complies with the terms of the condition.

Subsequently, a New York Child Custody Lawyer said a woman was appointed as the guardian of the father. Sources revealed that the need for a guardian was stemmed from injuries sustained by the father subsequent to the divorce action. The aforementioned order and decision authorized the establishment of a supplemental needs trust for the benefit of the father out of which certain expenses could be paid including child support, premiums for health insurance for the man’s children, life insurance premiums, medical expenses for the children and 1 1/2 of the annual college education costs at any state university.

The duties and obligations of the father owing to his former wife and his children, and his rights arising out of the divorce action, are defined by the condition of settlement. A Queens Family Lawyer in the mother’s application to modify those duties, obligations and rights by an expansion of the guardian’s powers, it is in effect seeking to have the court in the guardianship proceeding to modify the decision in the divorce action.

Published on: August 24, 2013

Ex-Wife Seeks to Increase Child Support

by Stephen Bilkis

In a matrimonial action in which the parties were divorced by a judgment, the defendant former husband appeals (1) as limited by his brief, from so much of an order of the Supreme Court, Suffolk County, as, after a hearing, and upon a prior order of the same court, entered, which interpreted a child support escalation provision in a stipulation of settlement incorporated but not merged in the judgment of divorce, awarded the plaintiff a money judgment in the amount of $24,512, representing arrears in child support due and owing the plaintiff for the years 1984 through 1989, (2) from an order of the same court, which granted the plaintiff former wife’s motion for counsel fees in the amount of $9,450, and (3) purportedly from so much of the order of the same court, as denied his motion for counsel fees.

A Queens Family Lawyer said that the order of the Supreme Court, Suffolk County, denied the defendant’s motion for counsel fees. Since the defendant withdrew his notice of appeal from that order, his purported appeal from so much of that order as denied his motion for counsel fees must be dismissed.

In that very same order, the Supreme Court, in delineating the issues to be determined at a hearing to be held on the defendant’s motions, interpreted the child support escalation provision in a stipulation of settlement which was incorporated but not merged in the judgment of divorce in a manner adverse to that advanced by the defendant. However, that provision of the order, was not appealable as of right, since the hearing had not been held. Child support arrears allegedly due to the plaintiff based on the child support escalation provision were not determined until an order was entered, after a hearing, granting the plaintiff a money judgment for them. Since the defendant timely appealed from the order, his argument on appeal, to wit, that the Supreme Court erroneously interpreted the child support escalation provision, is properly before this court.

Published on: August 21, 2013

Petitioner Seeks Enforcement of Child Support Order

by Stephen Bilkis

In a proceeding pursuant to Family Court Act § 467(b), for enforcement of the alimony and child support provisions of a judgment of divorce of the Supreme Court, the ex-husband appeals from an order of the Family Court, Suffolk County, which rejected his objections to a Hearing Examiner’s order, which, inter alia, increased the amount of alimony and child support awarded in the judgment to the total amount of $250 per week.

A New York Family Lawyer said that the parties were married in November 1964. During the course of the marriage they had three children. The parties were divorced in 1979 pursuant to a judgment which incorporated but did not merge the terms of their stipulation of settlement.

The schedule indicates that it was the intention of the parties that the amount of money payable by the appellant ex-husband both for alimony and for child support was to decrease over time. A New York Custody Lawyer said the appellant, however, fell into arrears and in 1980 the respondent ex-wife obtained an enforcement order, and in 1981, a payroll deduction order, each in the total amount of $250 per week. The $25 reduction which was to occur in 1981 was never realized by the appellant as he took no action to challenge the 1980 enforcement order or the 1981 payroll deduction order.

Published on: August 20, 2013

Court Decides if Temporary Order for Protection in Merited

by Stephen Bilkis

Defendant and complainant are husband and wife. Immediately prior to his arrest, defendant and his wife were staying in separate cooperative apartments, each jointly owned by them, in the same apartment building in Manhattan. The larger of the two apartments was the couple’s marital home, while the smaller served as the wife’s office. As a consequence of severe marital conflict between them, the wife was temporarily sleeping in her office, but had access to the larger apartment during the day. The defendant husband continued to occupy and sleep in the larger apartment.

A New York Family Lawyer said that defendant was arrested and charged with Assault in the Third Degree, and with Harrasment, on the complaint of his wife. According to the complaint of Police Officer Graves, corroborated by the wife on the same day, defendant, with intent to cause physical injury and to harass and annoy his wife, had punched her in the face and knocked out one of her teeth. The alleged assault and harassment occurred after the wife had returned to sleep in the larger apartment and refused to let the husband in.

A New York Custody Lawyer said that at his arraignment, defendant was represented by counsel, and with the consent of the People was released on his own recognizance. At the arraignment, the People requested, and the court issued, a Temporary Order of protection, effective unless further extended by the court. No argument was heard, or testimony presented, either in support of or in opposition to the issuance of the TOP. The effect of this Temporary Order of protection was to exclude the defendant from both of the couple’s apartments, since one was arguably the complainant’s home and the other her office.

Published on: August 19, 2013

Court Discusses a Conversion Divorce Proceeding

by Stephen Bilkis

In a divorce action, the plaintiff wife appeals from a judgment of the Supreme Court, Suffolk County, which granted the defendant husband’s counterclaim for a conversion divorce and awarded custody of the parties’ infant children, visitation, child support and occupancy of the marital residence pursuant to the terms of a separation agreement.

Judgment reversed, on the law and as a matter of discretion, without costs or disbursements, and matter remitted to the Supreme Court, Suffolk County, for determination of plaintiff wife’s causes of action for divorce and ancillary issues, and entry of judgment in favor of defendant on his counterclaim for a conversion divorce is stayed pending that determination.

A New York Family Lawyer said that the parties were married in 1969 in Kansas, and thereafter moved to Suffolk County, New York. They have three sons, born in 1969, 1971, and 1975, respectively. In 1982, the parties executed and filed a written separation agreement. The agreement was drawn by use of a “do it yourself” kit, and neither party was represented by counsel. The agreement provided, inter alia, for custody, child support, visitation, a mutual waiver of support, maintenance and alimony, ownership and possession of the marital residence, distribution of personal property, and a mutual waiver of inheritance rights. The agreement further provided that it would be incorporated by reference in any subsequent divorce decree and would survive, not merge in, any such decree.

Published on: August 18, 2013

Court Decides Modification of Child Support Issue

by Stephen Bilkis

In a child support modification proceedings under the Family Court Act, a wife seeks an order of the Court modifying upwards the child support provisions of a December 1973 divorce decree entered between the parties, which provisions were adopted and made part of an enforcement order entered in Court on October 18, 1976.

A New York Family Lawyer said the parties were married in New York in 1958, with eight children being born of the union. By divorce decree, the husband was directed to pay $20.00 per week for each of the eight children, for a total of $160.00 per week. The wife now seeks an increase of the $20.00 per child, per week figure, alleging the increased needs of the children, and the husband’s improved ability to pay.

A New York Custody Lawyer said the t issue is the time from which the required change in circumstances is to be measured. The Court record of the prior proceedings between the parties indicates that orders were made relative to the husband’s support obligation on March 13, 1984, November 16, 1983, May 3, 1982, April 17, 1981, February 4, 1980, November 21, 1978, and October 18, 1976 (the original enforcement order).

Published on: August 17, 2013

Petitioner Accused of Misrepresenting Income

by Stephen Bilkis

A proceeding was commenced pursuant to Criminal Procedure Laws and Rule (CPLR) to review a determination of the respondent Government Agency dated May 15, 1978 and made after a statutory fair hearing, which affirmed a determination of the local agency that the petitioner mother had willfully withheld information as to a change in income. A New York Family Lawyer said the determination is annulled, on the law, and the petition granted, without costs or disbursements.

The sole evidence in the record of willful withholding of information is the fact that the petitioner mother received a child support check and failed to report it to the respondent Government Agency. She had made no effort to conceal her child support rights. She executed an assignment of these rights to the Agency and appeared in court to press these rights prior to receipt of the check. Her un-contradicted testimony at the fair hearing was that she thought the check she received was the money remaining after the respondent Agency had taken what it was owed. This does not rise to the level of substantial evidence that she had willfully withheld information as to a change of income.

Moreover, a New York Custody Lawyer said the respondent Government Agency failed to notify the mother adequately of her duty to report changes in income. There was only a general certification signed by the mother at the time of her application for assistance. It did not contain any examples of what constituted changes in income nor is there any evidence that the mother was given verbal examples. Since she had not hidden her eligibility for child support and received the support check subsequent to her assignment of support rights, she had no reason to consider this a change in income.