New York City

Published on: October 2, 2013

Court Dismisses Appeal for Further Review of Division of Marital Property

by Stephen Bilkis

In an action for a divorce and ancillary relief, the defendant man appeals from a decision of the Suffolk County Supreme Court made after a nonjury trial, and as limited by his brief, from stated portions of a judgment of the same court which, upon the decision has awarded the complainant woman a 50% share in the appreciation of the marital residence, directed the parties to sell the marital residence at the conclusion of the complainant woman’s period of exclusive occupancy, directed the defendant man to pay the sum of $352.27 per week in child support, and fixed the commencement date of the action as the valuation date for equitable distribution of the married parties’ assets.

A New York Family Lawyer said it is ordered that the appeal from the decision is dismissed, as no appeal lies from a decision; and it is further ordered that the judgment is modified, on the law, by deleting the provision thereof awarding the complainant woman a 50% share in the appreciation of the marital residence, by deleting the provision thereof directing the parties to sell the marital residence at the conclusion of the complainant woman’s period of exclusive occupancy, and by deleting the provision thereof directing the defendant man to pay the sum of $352.27 per week in child support; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Suffolk County Supreme Court for further proceedings consistent herewith, and for entry of an amended judgment thereafter; and it is further ordered that pending a recalculation of the defendant man’s child support obligation, he shall continue to pay the sum of $352.27 per week for the support of the subject child.

The defendant man acquired the marital residence prior to the parties’ marriage, using the proceeds of a settlement from a personal injury action. A New York Custody Lawyer said the the deed and mortgage were placed and kept solely in his name. Consequently, the marital residence is separate property. The appreciation of, or increase in the value of, separate property is considered separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse. A Manhattan Family Lawyer said the complainant failed to carry her burden establishing that the marital residence appreciated in value during the parties’ marriage and, if so, that such appreciation was due in part to her efforts. Thus, it was error for the Supreme Court to award the complainant woman a 50% share in the appreciation of the marital residence. Moreover, it was error for the Supreme Court to direct that this separate property be sold. However, the complainant woman is entitled to a credit for her equitable share of the marital funds that were used to pay off the mortgage, which was the defendant man’s separate debt. Accordingly, the matter is remitted to the Suffolk County Supreme Court for the calculation of that credit.

Published on: October 1, 2013

Petitioner Sues Respondent for Child Support

by Stephen Bilkis

In 1962, the accused left his wife and four minor children in California. His wife then entered into ‘a common law situation’ with a partner and adopted the name of her partner. A New York Family Lawyer said that thereafter, she applied in California for public assistance for the children claiming that she did not receive any support from the accused. In 1971 she signed a misdemeanor complaint charging him with nonsupport. It was later determined that appellant was residing in New York and later, a reciprocal support petition was forwarded to the Family Court in New York. Thereafter, the court ordered that appellant to pay $16 a week for child support.

A New York Child Custody Lawyer said that the mother signed a felony complaint in California charging that appellant did ‘willfully, unlawfully and feloniously and without lawful excuse, omit to furnish’ support for his min children in violation of section 270 of the Penal Code of California. The complaint was sworn to before a Judge of the Municipal Court who then issued a warrant for appellant’s arrest. He was arrested at his home in New York and held pending extradition proceedings.

Thereafter, an investigator from the District Attorney’s office in Orange County, California, sent an application for requisition to the Governor of California. The application states that appellant is properly charged, in due form, in accordance with the laws of this State with the crime of violation of section 270 of the California Penal Code, a felony, committed in the county of Orange’ and ‘That said fugitive from while out of the State of California, committed acts intentionally resulting in said crime in said county. In an affidavit attached to the application, the mother recited the history of the case as indicated above and also stated that she had not received any support from the accused since the entry of the New York Family Court order. In another affidavit to the same effect Woodington noted that ‘this office has received no funds from the defendant’. Both of these affidavits were sworn to before a Judge of the Municipal Court of Orange County.

Published on: September 30, 2013

Court Discusses Eviction of Family Member

by Stephen Bilkis

In this Special Proceedings case, petitioners are the owners of the Subject Property. Respondent moved into the Subject Property with her paramour after learning she was pregnant with the subject child. Petitioner’s husband is the biological father. The parties acknowledged that there are no custody or child support matters pending.

A New York Family Lawyer said that for almost 7 months, Respondent and the paramour resided together at the Subject Property. Petitioner, who resides in the property adjoining the Subject Property, was aware that respondent had moved into the property with her son. Thereafter, while the paramour was incarcerated, respondent continued to reside in the Subject Property without the co-petitioner. The child was born in February 2008 and has lived in the Subject Property with respondent since birth. Apparently, the paramour and respondent at some point had become engaged, but never married, and according to respondent, the engagement ended in April 2009. Co-petitioner, paramour has since returned to prison and, according to petitioner, it is anticipated that her son will be released in or about January 2010.

It is undisputed that respondent has continued to reside in the Subject Property uninterrupted for a period of more than two (2) years. A New York Custody Lawyer said there was no testimony that petitioner ever resided in the Subject Property. Co-petitioner is listed as the sole borrower on the mortgage for the Subject Property, and according to the credible documentary evidence, the Subject Property is the subject of a foreclosure proceeding pending in Suffolk County Supreme Court. Thereafter, Co-petitioner deeded one-half interest in the Subject Property to petitioner to assist with the mortgage arrears.

Published on: September 28, 2013

Court Relieves Law Guardian from their Duties

by Stephen Bilkis

In this Order of protection case, the Law Guardian was relieved and new counsel assigned to represent the child’s interests. Respondent mother’s counsel asserts that during the fact-finding hearing, while the caseworker for the Administration for Children’s Services was testifying, the Law Guardian read a People/Us magazine under her desk and text messages on her cell phone. A New York Family Lawyer said that in addition, counsel for respondent mother notes that the Law Guardian asked the caseworker no questions during cross-examination. According to counsel for respondent mother, “the last straw” was during an off-the-record bench conference, when the Law Guardian stated her support for the agency’s position. At that point, counsel contends that he became very upset, because the Law Guardian appeared to fail to pay attention to the testimony during the trial, yet took a position against his client.

A New York Child Custody Lawyer said that the motion is opposed by the Law Guardian. She emphatically denies that she was reading a magazine, although she admits that there was one on her desk. She also denies that she was reading text messages asserting, “there is no cell phone service in the court.” The Law Guardian asserts that she has diligently represented her now five-year-old client’s interests. Specifically, she asserts that she met with her client twice, conducted an extensive and thorough investigation and made a determination to advocate for a resolution that she believed to be in the child’s best interests. She asserts that although she did not wish to cross-examine the caseworker, she was paying very close attention and is knowledgeable about all of the facts and circumstances at issue in this case.

Counsel for respondent maternal great-grandmother has submitted an affirmation which essentially supports the observations of respondent mother’s counsel about the Law Guardian’s actions, although he takes no position in support of, or opposition to, the motion. A Nassau County Family Lawyer said after having carefully considered the papers submitted, the Court finds the affirmation submitted by respondent mother’s counsel devoid of viable evidence indicating any bias on the part of the Law Guardian, ineffective assistance of counsel, failure to diligently represent the child’s interests or other recognized grounds for disqualification. The motion is denied.

Published on: September 27, 2013

Court Hears Child Support and Custody Case

by Stephen Bilkis

The instant case arises from an award of child support entered after an inquest, upon the appellant’s default in appearing at the hearing. A New York Family Lawyer said the appellant alleges he became sick immediately prior to the commencement of a support hearing in February 1990 and asked his wife’s attorney to inform the court that he went home ill. Instead, his wife’s attorney only informed the court that he was present, but had left. Thus, the wife was the sole witness at the inquest, and, based upon her testimony, the Hearing Examiner, in an order, awarded child support and maintenance. The appellant sporadically paid only a small fraction of the support ordered by the court.

A New York Custody Lawyer said that the appellant further alleges that from the time of the support proceedings until April 1991 he either lacked counsel or that the counsel which represented him did not provide him with effective assistance of counsel. The appellant then engaged his present counsel who moved by order to show cause to vacate his default pursuant to CPLR 5015. The motion was denied by Hearing Examiner in an order and objections to the Hearing Examiner’s order were denied in the order appealed from.

The appellant sought modification of his support obligations pursuant to Family Court Act § 415. Hearing Examiner Silverman ordered a combined hearing on the issues of downward modification and whether the appellant had willfully violated the support order.

Published on: September 22, 2013

Court Discusses Cost of Living Adjustment

by Stephen Bilkis

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County, dated November 9, 2009, which denied his objections to an order of the same court, dated September 24, 2009, which, upon treating his letter dated June 29, 2009, as objections to a cost-of-living adjustment order dated March 21, 2009, and after a hearing, found that his objections were untimely, and denied his objections with prejudice.

A New York Family Lawyer said that, in the parties’ judgment of divorce dated May 5, 2005, the father’s weekly support obligation was set at $235.72. Upon the mother’s application, the Suffolk County Support Collections Unit (hereinafter the SCU) issued a cost-of-living adjustment (hereinafter COLA) order dated March 21, 2009, that increased the father’s weekly support obligation to $267. More than three months later, by letter dated June 29, 2009, the father raised objections to the COLA order, explaining that, although he had received a notice from the SCU in February 2009 of the availability of a COLA to his child support obligation, he never received a copy of the COLA order dated March 21, 2009.

A New York Child Custody Lawyer said that, after a hearing to determine the timeliness of the father’s objections, the Support Magistrate, in an order dated September 24, 2009, denied the father’s objections with prejudice as untimely, finding that the father offered no credible evidence to rebut the proper mailing by the SCU to him of the instructions for filing objections and the COLA order. The father then filed objections with the Family Court, which denied his objections.

Published on: September 21, 2013

Petitioner Objects to Cost of Living Adjustment

by Stephen Bilkis

This case stemmed from a divorce action between parties dated May 5, 2005. After the trial, the Family Court ordered a judgment of divorce. A New York Custody Lawyer said the judgment also set forth the support obligations of the father. The father made objections to the order of the court but the same were denied. In his letter dated June 29, 2009, he also made objections to a cost-of-living adjustment order dated March 21, 2009, and after a hearing, the court found that his objections were untimely, and denied his objections with prejudice. Later on, the father filed an appeal assailing the order of the Family Court, particularly its child support provision.

In the parties’ judgment of divorce dated May 5, 2005, the father’s weekly support obligation was set at $235.72. Upon the mother’s application, the support collections unit (SCU for brevity) issued a cost-of-living adjustment (COLA for brevity) order dated March 21, 2009, that increased the father’s weekly support obligation to $267. More than three months later, by letter dated June 29, 2009, the father raised objections to the COLA order, explaining that, although he had received a notice from the SCU in February 2009 of the availability of a COLA to his child support obligation, he never received a copy of the COLA order dated March 21, 2009. Later on, the father admitted that he had previously received the notice of the COLA instructions at his residence, one month prior to the date of the COLA order.

A New York Custody Lawyer said the Support Magistrate denied the father’s objections with prejudice as untimely, finding that the father offered no credible evidence to rebut the proper mailing by the SCU to him of the instructions for filing objections and the COLA order. The father then filed objections with the Family Court, which denied his objections.

Published on: September 20, 2013

Court Reviews Child Support Standards

by Stephen Bilkis

In this case, an action for divorce was filed by plaintiff against his spouse before the Family Court, Suffolk County. After trial, the Family Court ordered a judgment of divorce with a stipulation of settlement. The said stipulation contains child support and maintenance provisions.

Later, a New York Family Lawyer said the defendant filed a motion to dismiss the complaint and asking to impose a sanction and for an award of an attorney’s fee before the Supreme Court, Suffolk County. The motion was granted by the Supreme Court saying that plaintiff was already judicially estopped from arguing that certain provisions in the parties’ judgment of divorce and stipulation of settlement should be set aside. With this, plaintiff filed an appeal with the Appellate Division of the Supreme Court of New York.

After careful consideration of the facts of the case, the Appellate Court ruled in favor of the plaintiff and ordered that the order of the Supreme Court, Suffolk County be modified.

Published on: September 18, 2013

Court Discusses Responsibilities Under Family Court Act

by Stephen Bilkis

Petitioner is an 18-year old single female attending in a community college on a work-study program. Her mother died on September 2, 1961. A New York Family Lawyer said thereafter, her father married respondent on August 9, 1962 when petitioner was three years of age. Two female children, petitioner’s half sisters, were born of this union. Her father died on March 10, 1975. Petitioner continued to reside in respondent’s home until June 15, 1977.

In June of 1977, petitioner left respondent’s residence to reside with relatives and now seeks support from the respondent pursuant to Section 415 of Article 4 of the Family Court Act. A New York Child Custody Lawyer said the petitioner has limited income and is imminently liable to go on public assistance and in fact presently receiving medicaid benefits from the Department of Social Services. Petitioner cited two (2) similar cases in support of her contention that the death of a parent does not conclude the stepparent relationship because death is an act of God and is therefore not a willful act. In contrast, the petitioner further argues, a divorce does end this relationship since there is an “intent to terminate the living tendrils of the marriage.”

The question presented in this case by the petitioner is whether a stepparent, whose marriage has been terminated by the death of the child’s natural parent, is legally responsible for the support of the stepchild.

Published on: September 17, 2013

Court Discusses Order for Protection

by Stephen Bilkis

In an action for divorce, a New York Family Lawyer said the wife has made two applications for orders directing her husband to leave their marital home, to provide support and maintenance for her and to restrain him from removing furnishings, furniture and personal possessions from the residence.

When the motions were originally submitted, the court discovered that an application for an order of protection was being sent to the court for determination. An inquiry to the court confirmed the said information. In view of the fact that the actions concerned relief associated with the family court proceeding, the court referred them to the family court for hearing and decision.

Based on records, referral of the motions was not made without authority nor was it intended to enlarge the court’s jurisdiction. The family court has original jurisdiction over support proceedings and the applications for support and custody in matrimonial matters.