Queens

Published on: July 15, 2024

Appellate Division ordered a custody modification hearing due to alleged changes in circumstances and caregiving. O’Mahoney v. O’Mahoney, 206 A.D.3d 819(N.Y. App. Div. 2022)

by Stephen Bilkis

In a matrimonial case involving child custody and economic provisions, the Supreme Court of Queens County addressed the defendant’s request to modify the custody arrangement and to vacate the economic provisions of the divorce judgment. This case underscores how courts evaluate requests for custody modification and challenges to economic terms based on alleged changes in circumstances and claims of fraud.

Background Facts

The parties married in 2004 and divorced by judgment dated May 4, 2016. They were awarded joint legal custody of their two children, born in 2011, with residential custody granted to the plaintiff and parental access to the defendant. The judgment also required the defendant to pay $25 per month in child support. Neither party sought maintenance during the divorce proceedings.

Published on: January 7, 2016

Plaintiff Moves for Motion to Dismiss for Failure to File Timely Complaint

by Stephen Bilkis

The defendant moves by order to show cause for the following relief: for an order pursuant to CPLR §§ 327 and 3012(b) as follows: a) granting defendant dismissal of this action by virtue of the plaintiff’s failure to timely serve a complaint; b) granting defendant a dismissal of this action on the ground that this court does not have jurisdiction over his person which has not resided in New York since 1999; c) granting defendant a dismissal of this action on the ground of forum non conveniens in light of the Brazilian action pending since 2002; d) in the alternative, granting defendant a stay of these proceedings pending completion of the 2002 Brazilian action.

In this matrimonial action, the defendant is a Brazilian citizen while plaintiff enjoys dual citizenship with the United States and Brazil. The parties met in 1988 when plaintiff was visiting a friend in Brazil. Thereafter, defendant decided to move to New York to be with plaintiff and the parties were married in a civil ceremony in the state of New York on February 27, 1989.

Published on: July 21, 2014

Court Decides if Wife is Entitled to Rental Income

by Stephen Bilkis

A New York Family Lawyer said the couple purchased their marital residence in 1999 and thereafter rented portions of the home to residential tenants while occupying its main floor. In February 2002 the wife commenced an action for a divorce and ancillary relief. In a pendente lite (pending in court) order, the Supreme Court awarded the defendant husband interim custody of their children and exclusive occupancy of the home, and directed him to pay the wife maintenance in the amount of $125 per week. Additionally, pursuant to that order, the husband was responsible for all the carrying charges on the home in light of his exclusive occupancy and his receipt of rental income from the home. As subsequently amended, the pendente lite order directed the wife to pay the husband $75 per week in child support but allowed her to credit her child support obligation against any unpaid maintenance. No child support or maintenance payments were made pursuant to the pendente lite order.

A New York Custody Lawyer said after a nonjury trial, the Supreme Court awarded physical custody of the children to the wife, directed the husband to pay the wife child support in the amount of $1,112 per month after imputing annual income to him in the amount of $50,000, denied the wife’s application for equitable distribution of fire insurance proceeds received for damages to the home and of rental income from the home generated during a 40-month period of time during which the husband had exclusive possession, and distributed the Haitian real property owned by the parties in kind.

However, a Queens Family Lawyer said the Supreme Court erred in calculating the husband’s child support obligation based on an imputed annual income of $50,000 per year. That imputation was based upon findings that the husband’s average annual reported income over the years 2000-2003 was $37,264 and that, in addition, he received $2,000 per month in rental income. Those findings alone demonstrate that the husband’s actual income exceeds $60,000 per year. Moreover, at one point during the trial, the husband testified that he actually received rental income in the amount of $2,200 per month and, in addition, earned a couple thousand dollars per year in unreported income from secondary employment.

Published on: July 10, 2014

Wife Claims She is Entitled to Rental Income

by Stephen Bilkis

A New York Family Lawyer said that, in an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Nassau County, dated April 7, 2008, which, upon a decision of the same court dated March 29, 2005, made after a nonjury trial, inter alia, imputed an annual income to the defendant in the sum of $50,000 for the purpose of his child support obligation and, on that basis, directed the defendant to pay her child support in the sum of $1,112 per month, and, in effect, failed to award her equitable distribution of certain rental income.

A New York Custody Lawyer said that, the parties purchased the marital residence in 1999 and thereafter rented portions of the home to residential tenants while occupying its main floor. In February 2002 the plaintiff (hereinafter the wife) commenced an action for a divorce and ancillary relief. A Nassau Family Lawyer said that, in a pendente lite order dated July 8, 2002, the Supreme Court, among other things, awarded the defendant (hereinafter the husband) interim custody of the parties’ children and exclusive occupancy of the home, and directed him to pay the wife maintenance in the amount of $125 per week. Additionally, pursuant to that order, the husband was responsible for all the carrying charges on the home in light of his exclusive occupancy and his receipt of rental income from the home. As subsequently amended, the July 2002 pendente lite order directed the wife to pay the husband $75 per week in child support but allowed her to credit her child support obligation against any unpaid maintenance. No child support or maintenance payments were made pursuant to the pendente lite order.

A Staten Island Family Lawyer said that, after a nonjury trial, in a decision dated March 29, 2005, the Supreme Court, among other things, awarded physical custody of the parties’ children to the wife, directed the husband to pay the wife child support in the amount of $1,112 per month after imputing annual income to him in the amount of $50,000, denied the wife’s application for equitable distribution of fire insurance proceeds received for damages to the home and of rental income from the home generated during a 40-month period of time during which the husband had exclusive possession, and distributed the Haitian real property owned by the parties in kind.

Published on: June 20, 2014

Court Decides if Wife’s Child Support Custody Should be Reduced

by Stephen Bilkis

A New York Family Lawyer said that, in three related proceedings, inter alia, for modification of child support and maintenance obligations, the petitioner husband appeals (1) from an order of the Family Court, Nassau County, entered December 20, 1988, which denied his objections to so much of an order of the same court, dated September 19, 1988, as dismissed his application to increase the wife’s child support obligation, (2) from an order of the Family Court, Nassau County, entered May 18, 1989, which denied his objections to an order of the same court, dated March 16, 1989, dismissing his application to reduce his maintenance obligation, and (3) as limited by his brief, from so much of an order of the Family Court, Nassau County, entered June 8, 1989, as denied his application to (a) vacate an income execution served on his employer, (b) adjudge the wife’s employer to be in contempt, and (c) vacate the order entered December 20, 1988.

A New York Child Custody Lawyer said that, the parties settled their divorce action on July 22, 1983, by entering into a stipulation which was incorporated in but did not merge with their judgment of. The stipulation provided for the wife, at that time a full-time homemaker, to be the custodial parent of the parties’ two children. The parties further agreed that their assets, including the marital residence, would be essentially split evenly, and that the husband would pay child support as well as $100 per week maintenance.

A Bronx Family Lawyer said that, the custody of both children was subsequently transferred to the father, and the wife obtained employment outside the home. Following the change in custody, in March 1987 the Supreme Court directed the wife to pay child support in the sum of $10 per week per child. Fifteen months later, the husband commenced a Family Court proceeding seeking upward modification of the wife’s support obligation. He then commenced a second proceeding seeking elimination of the maintenance obligation imposed by the stipulation of settlement, and a third proceeding, inter alia, to renew his application for increased child support. The Family Court denied him the relief sought, and these appeals ensued.

Published on: June 19, 2014

Petitioner Files Action to Adopt Son

by Stephen Bilkis

A New York Family Lawyer said a couple entered into a written separation agreement and was divorced by the decision of the Supreme Court. Subsequently, the woman married another man and moved into the man’s residence. The woman and her new husband filed a petition for the adoption of the woman’s son. It was alleged in the petition that the consent of the child’s father, the woman’s former husband, was not necessary because he abandoned the child.

A New York Child Custody Lawyer said the child’s father then moved for an order enforcing the visitation provisions of the separation agreement. The father’s order to show cause contained a term barring the woman from prohibiting visitation during the pendency of the case. The woman however moved for restriction and suspension of any visitation pending a determination of the adoption proceeding, seeking to hold the child’s father in contempt of court for failing to pay child support, seeking to consolidate the motion in Supreme Court with the adoption proceeding pending in Surrogate’s Court, and seeking an award of counsel fees.

A Brooklyn Family Lawyer said by order, the justice directed that the adoption proceeding in the Surrogate’s Court be consolidated with the proceedings in the Supreme Court. The matter was set for a trial as the submitted papers were complete with factual issues.

Published on: June 18, 2014

Complainant Files Action to Direct Sale of Real Property

by Stephen Bilkis

A New York Family Lawyer said complainant seeks a decision compelling and directing the sale of a real property owned by a couple. The complainant states that they brought an action against the couple to recover $24,371.56. The attorney further states that a decision was duly entered in the action in favor of them for $24,371.56. The attorney also asserts that the decision was duly filed and docketed in the office of the clerk and a balance of $31,793.88, to wit the original judgment plus interest remains unpaid.

The attorney stated all of the complainant’s attempts to collect the amount due. The attorney also asserted that the couple is the current owner of the real property, exceeding $50,000.00 in value with an assessed value of approximately $350,000.00 based upon information and belief.

The woman states, in an opposing affirmation, that she is the current owner of the subject property. The affidavit of the woman makes clear that no real marriage exists. The woman’s attorney stated that the man abandoned the woman and their child. The man left the marital residence and never returned without leaving a forwarding address. The woman’s attorney points out that the family doesn’t know where the man resides and don’t even received any support from the man. Further, the man currently owes the woman over $17,000.00 in child support arrears. The woman’s attorney also points out that the woman has child support problems with another relationship, and additional details about the man’s posture as a judgment debtor.

Published on: June 16, 2014

Wife Petitions for Share of Marital Residence

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the parties were divorced by judgment entered August 5, 1981, the plaintiff wife appeals from so much of an order of the Supreme Court, Nassau County, entered June 29, 1987, as denied that branch of her cross motion which was for the appointment of a receiver pursuant to Domestic Relations Law § 243, and the sequestration of the defendant husband’s equitable share of the net proceeds from the sale of the parties’ former marital residence, and the defendant cross-appeals from so much of the same order as granted the plaintiff counsel fees in the sum of $1,500.

A New York Custody Lawyer said the parties were married on August 24, 1968. There is one child of their marriage, born on May 17, 1977. On August 5, 1981, a Nassau Divorce Lawyer said that the plaintiff was granted a judgment of divorce. The judgment provided, inter alia, that the plaintiff would receive custody of the parties’ minor child and exclusive possession of the former marital residence. Furthermore, the judgment directed the defendant to pay to the plaintiff $75 per week child support. As a result of several proceedings in the Family Court in which the defendant sought a downward modification of the divorce judgment’s support provision and the plaintiff moved for an order enforcing the defendant’s support obligations, the support provision was reduced to $100 biweekly, payable through the Nassau County Department of Social Services Support Obligations Unit.

A Staten Island Family Lawyer said that, the Supreme Court, Nassau County, in an order dated February 18, 1986, directed that the former marital residence be sold and increased the defendant’s biweekly support payment to $160. In April 1986 the plaintiff moved for leave to enter judgment for support arrears and an order appointing her receiver and sequestrator of the defendant’s equitable interest in the former marital residence pursuant to Domestic Relations Law § 243. The Supreme Court, Nassau County, by order dated May 7, 1986, awarded the plaintiff arrears but denied that branch of her motion which was for sequestration and the appointment of a receiver.

Published on: June 14, 2014

Petitioner Files Paternity Petition

by Stephen Bilkis

A New York Family Lawyer said a man filed a paternity petition requesting that an order be made declaring him to be the father of a child.

The man and the mother were present at the trial and the documents reflect that the court already noted the paternity of the child. An acknowledgment was then produced which declared that another man was the father of the child. The court then appointed a law guardian to represent the child.

A New York Custody Lawyer said the other man stated that he raised the child for six years and the child calls him papa. The mother also told the child that he was his father.

Published on: June 13, 2014

Court Orders Respondent to Submit DNA for Paternity Testing

by Stephen Bilkis

A New York Family Lawyer said the matter before the Court is a motion brought by the Deputy Court Attorney’s Office, on behalf of the Nassau County Department of Social Services (DSS), seeking to have the Court direct the respondent to submit to DNA testing for the purpose of establishing paternity of the child. Both the respondent and law guardian submitted opposition papers invoking the doctrine of equitable estoppel, arguing that the child has an intact father-child relationship with another individual. The Deputy County Attorney then submitted reply papers, arguing neither the law guardian nor respondent have established that the child would be irreparably harmed if DNA testing was ordered.

A Nassau County Child support Attorney said that this matter was initiated when DSS filed a petition for paternity and support against respondent. The Presiding Magistrate referred the matter to the Court once the issue of equitable estoppel was raised.

A New York Child Custody Lawyer said the doctrine of equitable estoppel may be used in a variety of family law matters including custody, visitation, support and, as here, paternity. Regardless of whether it is being used in an offensive posture to enforce rights or a defensive posture to prevent rights from being enforced, it is only to be used to protect the best interests of the child or children involved. Herein, the respondent and law guardian seek to invoke the doctrine in an defensive posture, seeking to prevent respondent from having to take a DNA test.