New York City

Published on: June 3, 2014

Plaintiff Seeks to Recover Damages for Breach of Separation Agreement

by Stephen Bilkis

A New York Family Lawyer said that, in an action, inter alia, to recover damages for breach of a separation agreement, the plaintiff wife appeals from stated portions of an order of the Supreme Court, Nassau County, dated January 23, 1989, which denied her motion for summary judgment, inter alia, dismissing the defendant husband’s counterclaims and affirmative defenses and for summary judgment in the plaintiff’s favor for arrears of maintenance and child support and for counsel fees, and the defendant cross-appeals from stated portions of the same order which, inter alia, denied his cross motion for summary judgment.

The plaintiff and the defendant in this action were divorced in 1975 pursuant to a Dominican Republic divorce judgment. A separation agreement survived and was not merged in that judgment. A Nassau Divorce Lawyer said that, the agreement provided for joint custody of the parties’ three daughters, all of whom were to reside with the plaintiff. Later, one of the children moved to live with defendant. Pursuant to the agreement, the defendant was obligated to provide support and maintenance to the plaintiff for her life, to be reduced in 1991 after all the children reached their majority, with a further reduction but not elimination in the event she remarried. The defendant was not obligated to make separate periodic child support payments but was required to pay for varied expenses incurred on behalf of the children, including expenses for summer camp, medical treatment, college education and transportation. The agreement placed no restriction on the plaintiff’s place of residence or change of residence, nor did it condition maintenance for the plaintiff or support for the children on the plaintiff’s residence. It provided no specific schedule for the time the children would spend with their father. Arrangements consented to by both parents provided time for the children with the defendant on certain week nights and weekends.

A New York Child Custody Lawyer said that, in the summer of 1981, prior to her remarriage to the additional defendant on the counterclaims, the plaintiff informed the defendant that she would be moving with the children who were still living with her, in Westchester County to Muttontown in Nassau County in order to be close to her future husband’s established medical practice. After she and the children moved, the defendant stopped payment of his support and maintenance obligations. In September 1981 the plaintiff and her husband got married.

Published on: June 1, 2014

Plaintiff Appeals Denial of Application for Public Assistance

by Stephen Bilkis

A New York Family Lawyer said that, in a proceeding pursuant to CPLR article 78 inter alia to review a determination of the appellant State Commissioner, dated March 14, 1975 and made after a fair hearing, which affirmed an order of the local agency denying petitioner’s application for public assistance on behalf of herself and her then unborn child, the appeal, as limited by appellant’s brief, is from so much of a judgment of the Supreme Court, Nassau County, entered April 30, 1976, as (1) annulled that portion of the determination which denied petitioner’s application for public assistance on her own behalf and (2) ordered the County Commissioner to conduct further investigation to determine, on the basis of her income and financial resources, petitioner’s eligibility for assistance on her own behalf.

A New York Custody Lawyer said that, petitioner was a married pregnant woman separated from her husband and living with her parents. On January 14, 1975 she applied to the Nassau County Department of Social Services for public assistance in the categories of aid to families with dependent children and medicaid, on behalf of herself and her then unborn child. Since petitioner’s application revealed that she was a minor living with her parents, the agency had her father fill out a medical assistance questionnaire. His answers revealed that his net income exceeded the amount set as the maximum qualifying level for a family of three persons.

A Nassau Child Support Lawyer said that, in the determination under review appellant affirmed the local agency’s denial of public assistance to petitioner. Special Term ruled in petitioner’s favor and found that since petitioner was emancipated, there was no requirement for her parents to support her or her unborn child.

Published on: May 30, 2014

Court Rules to Discontinue Petitioner’s Grant of State Aid

by Stephen Bilkis

A New York Family Lawyer said this is a proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Social Services, dated March 19, 1982 and made after a statutory fair hearing, which affirmed a determination of the local agency to discontinue petitioner’s grant of Aid to Families with Dependent Children. A Nassau Child Support Lawyer said that, the petition was granted to the extent that the determination is annulled, on the law, without costs or disbursements, petitioner’s grant is reinstated and she is awarded all public assistance withheld from her pursuant to the determination dated March 19, 1982, and the matter is remitted to the Commissioner of the Nassau County Department of Social Services to commence a child support proceeding, in the Family Court, Nassau County, against petitioner pursuant to subdivision 1 of section 102 of the Social Services Law.

A Nassau Family Lawyer said that, by order of the Family Court, Nassau County, entered August 22, 1980, custody of the subject child was awarded to petitioner, her maternal grandmother. In late 1981, the subject child’s mother, moved back into the household. Although the mother was employed and earning approximately $100 per week, she refused to in any way support her daughter.

A New York Custody Lawyer said that, on December 4, 1981, the local agency notified petitioner that it intended to discontinue the AFDC benefits on behalf of the subject child effective December 14, 1981, on the ground that the income of a legally responsible relative, who was residing in the same household as the recipient, was available for her child support. Petitioner requested and was granted an administrative hearing to challenge the agency’s determination. In her decision after fair hearing, the State commissioner confirmed the agency’s determination, finding that “the record and credible evidence establish that the subject child’s mother is legally responsible for the support of her daughter, the subject child herein”. The commissioner further noted that the subject child’s mother could re-apply for public assistance on behalf of herself and her daughter in the event that her income was insufficient. Petitioner thereupon commenced the instant proceeding pursuant to CPLR article 78 on behalf of the subject child seeking review of the aforesaid decision.

Published on: May 29, 2014

The Issue in this Case is Whether Defendant is Entitled to Give Child Support.

by Stephen Bilkis

A New York Family Lawyer said that, this is a proceeding pursuant to CPLR article 78, Inter alia, to review a determination of the respondent State Commissioner dated May 15, 1978 and made after a statutory fair hearing, which affirmed a determination of the local agency that petitioner had willfully withheld information as to a change in income.

A Nassau Divorce Lawyer said that, in another action for a divorce and ancillary relief, the plaintiff appeals from a judgment of the Supreme Court, Westchester County, entered December 9, 2008, which, after a nonjury trial, inter alia, failed to direct the defendant to pay child support arrears, failed to award her maintenance, and failed to equitably distribute the value of the defendant’s medical license.

The issue in this case is whether defendant is entitled to give child support.

Published on: May 28, 2014

Father Moves for Termination of Prior Orders

by Stephen Bilkis

A New York Family Lawyer said that in an action for a divorce and ancillary relief, the husband appeals from three orders of the Nassau County Supreme Court which granted the wife’s motion pursuant to Domestic Relations Law for leave to enter a judgment against him in the amount of $39,760 for child support and maintenance arrears after a hearing, denied his motion for termination, cancellation, or modification of prior orders and a judgment of the court directing the payment of child support and maintenance, and adjudged him to be in contempt of court for his willful, wrongful, and conscientious refusal to comply with the aforesaid orders and judgments, and committed him to the Common Jail of the County of Nassau until he has paid the sum of $98,000, representing arrears in maintenance and child support.

It is ordered that on the court’s own motion, the appellant’s notice of appeal from the order which committed him to the Common Jail of the County of Nassau is treated as an application for leave to appeal, and leave to appeal is granted; and it is further ordered that the orders are affirmed, without costs or disbursements.

A New York Custody Lawyer said that the husband’s motion for termination, cancellation, or modification of prior orders and a judgment of the Nassau County Supreme Court directing the payment of child support and maintenance was properly denied. The husband’s claim that he was impoverished and unable to find work for the five-year period relevant to his motion presented a credibility issue, the resolution of which by the trier of fact is accorded great deference. The court’s determination that the husband’s unemployment was self-imposed in order to avoid his child support and maintenance obligations is supported by the record. Although the husband claimed that he had unsuccessfully sought employment, his claim is not supported by the record. Moreover, he admitted that he could and would be employed but for his being embroiled in all legal harangues.

Published on: May 26, 2014

Court Decides Jurisdiction Issue in Neglect Case

by Stephen Bilkis

A New York Family Lawyer said that, this is an appeal from an order of the Children’s Court Nassau County, dated December 8, 1955, directing appellant to support the two children of the parties, aged eight and ten years respectively, now living with respondent, formerly the wife of appellant. On May 4, 1955, the parties, then husband and wife, living apart, entered into a separation agreement. One of the provisions thereof required that the father pay $150 monthly for the support of the two children, nothing for the support of the wife. Thereafter, and on May 9, 1955, a judgment of absolute divorce was entered in the Circuit Court, Tenth Judicial District, State of Alabama, wherein the wife in this proceeding was the complainant, the husband the respondent. A Nassau Divorce Lawyer said, the separation agreement dated May 4, 1955, was made a part of the Alabama judgment. Petitioner, thereafter, returned to Nassau County, New York, where she again took up residence with the two children and on November 11, 1955 brought on this proceeding by information.

A New York Family Lawyer said that, after a trial of the issues by the Children’s Court judge, an order was entered in the Children’s Court requiring the appellant to pay $300 per month for the support of the two children. Appellant bases his appeal on two points. First, that the Children’s Court lacked jurisdiction to make the order appealed from in the absence of a showing that the children were delinquent, neglected or likely to become a public charge. Such has not been shown in this case. Second, that $3,600 per year out of an annual income of $9,000 gross per year (appellant’s income) is excessive and unreasonable.

The issue in this case is whether the Children’s Court lacked jurisdiction to make the order appealed from in the absence of a showing that the children were delinquent, neglected or likely to become a public charge.

Published on: May 25, 2014

Petitioner Requests a Downward Adjustment of Child Support

by Stephen Bilkis

A New York Family Lawyer said this is a matrimonial action wherein the parties were divorced by judgment entered 24 October 2008. The defendant appeals, as limited by his brief, from an order of the Supreme Court, Nassau County dated 30 July 2009, as denied, without a hearing, those branches of his motion which were for a downward modification of his child support and maintenance obligations and, in effect, denied that branch of his motion which was to confer continuing jurisdiction over this action upon the Family Court concurrent with that of the Supreme Court.

A New York Child Custody Lawyer said the court orders to modify, on the law, by deleting the provision denying, without a hearing, those branches of the defendant’s motion which were for a downward modification of his child support and maintenance obligations. As so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing on those branches of the defendant’s motion which were for a downward modification of his child support and maintenance obligations and a new determination thereafter on those branches of the motion.

Based on Matter of Gravlin v Ruppert, Merl v Merl and Nelson v Nelson, the terms of a stipulation of settlement that is incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties. As was held in Merl v Merl, Matter of Boden v Boden and Nelson v Nelson, generally, child support provisions deriving from such an agreement may be modified upon a showing that the agreement was not fair and equitable when entered into, or upon a showing of an unanticipated and unreasonable change in circumstances. Modification of maintenance obligations deriving from such an agreement generally requires a showing of extreme hardship based on Domestic Relations Law § 263[B][9][b] and as held in a similar case of Rockwell v Rockwell.

Published on: May 24, 2014

Petitioner Seeks to Evict Former Girlfriend from Residence

by Stephen Bilkis

A New York Family Lawyer said that in this summary licensee holdover proceeding brought under RPAPL 713 (7), petitioner seeks to evict respondents, his former girlfriend, their three-year-old son; and petitioner’s daughter from a different relationship.

A Nassau County child support attorney said that petitioner and Respondent’s relationship has turned sour. Pending in Criminal Court, New York County, is a prosecution against Petitioner for the class “A” misdemeanor of Aggravated Harassment allegedly committed against Respondent. Criminal Court in that action has issued a temporary order of protection against Petitioner in Respondent and the son’s favor. Also pending are custody, visitation, and support proceedings in Family Court, New York County. Family Court has awarded temporary custody of the son to Respondent.

A New York Child Custody Lawyer said the respondents now move to dismiss the petition or, in the alternative, to stay this proceeding pending Family Court’s final determinations. She argues that Petitioner may not bring a licensee proceeding against Respondent. According to Respondent, she is not a licensee whose license Petitioner may revoke.

Published on: May 23, 2014

Plaintiff Appeals Divorce Judgement Regarding Her Share of Business

by Stephen Bilkis

A New York Family Lawyer said this is an action for divorce and ancillary relief wherein the plaintiff appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County entered on 19 August 2008. After a nonjury trial, plaintiff was directed to pay a monthly child support in the amount of $4,833.33, awarded him only one half of the defendant’s one-half-interest in the marital residence which she jointly owned with her mother, and only one half of the sum of $440,000, which the defendant transferred to the custodial accounts of the parties’ children without his permission, awarded the defendant 25% of the appreciated value of his two businesses, declined to award him a percentage of the defendant’s increased earnings, and declined to award him a 50% credit for unaccounted-for funds in the accounts held by the defendant jointly with her mother at Chase Bank, deposited from 14 October 1997, to 12 October 2001.

The court orders that the judgment is modified, on the law, on the facts, and in the exercise of discretion, by deleting the fifth decretal paragraph thereof and by adding to the fifteenth decretal paragraph thereof, after the words “Memorandum Decision After Trial,” the phrase, “except that (i) the net value of the marital home which is available for equitable distribution is $549,876, and the husband is credited with the sum of $274,938, and (ii) the net value available for equitable distribution with respect to the children’s custodial accounts is $605,848, and the husband is credited with the sum of $302,924.

A New York Custody Lawyer said as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings.

Published on: May 22, 2014

Court Charges Husband with Retroactive Child Support

by Stephen Bilkis

A New York Family Lawyer said in an action for a divorce and ancillary relief, the defendant former husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, which, after a nonjury trial, and upon a finding that the plaintiff former wife was entitled to 50% of the value attributable to the marital portion of his law license, inter alia, directed him to pay a distributive award in the amount of $690,953.50, maintenance in the amount of $42,000 per year for a period of 15 years and $24,000 per year thereafter until the death of either party, and child support in the amount of $31,972 per year, and the plaintiff former wife cross-appeals from so much of the same judgment as, upon a finding that she was entitled to only a 40% share of the defendant former husband’s interest in his law firm, awarded her as part of the distributive award a sum of money equivalent thereto, failed to award her retroactive child support and maintenance, and directed the defendant former husband to pay child support in the amount of only $31,972 per year.

The court held that “Once a court converts a specific stream of income into an asset, that income may no longer be calculated into the maintenance formula and payout”. It is impossible to determine from the record before us whether the Supreme Court impermissibly engaged in the “double counting” of income when valuing the defendant former husband’s enhanced earning capacity, together with his interest in his law firm, and which values were then used in equitably distributing the marital property, and in determining the award of maintenance to the plaintiff former wife. Here, in valuing and distributing the marital portion of the defendant’s law license, the Supreme Court converted a certain amount of his projected future income stream into an asset.

However, a New York Child Custody Lawyer said since the Supreme Court used one method in determining the defendant’s enhanced earnings and a separate, possibly overlapping, method in valuing his interest in his law firm and failed to explain how it amalgamated the two methods and kept them from overlapping, it is impossible to tell whether or not the Supreme Court erred in its determinations as to maintenance, child support, and equitable distribution. Thus we remit the matter to the Supreme Court, Nassau County, to address this issue, and, if necessary, to recalculate those awards. Since we are remitting this matter for further proceedings, including, inter alia, the possible recalculation of the awards for child support and maintenance, we note that in its recent decision in a case, the Court of Appeals addressed the issue of child support, and further note our admonitions regarding the interplay of, inter alia, maintenance and child support.