New York City

Published on: June 22, 2014

Defendant Appeals Judgment Restraining Him from Withdrawing Funds from Investment Account

by Stephen Bilkis

A New York Family Lawyer said in an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, as granted that branch of the plaintiff’s motion which was to enjoin and restrain him from withdrawing any funds from an investment account into which the proceeds of a medical malpractice action settlement were deposited to the extent of limiting his withdrawals to the sum of only $4,627 per month and denied those branches of his cross motion which were for awards of pendente lite child support and an attorney’s fee.

A New York Custody Lawyer said that the relevant facts are set forth in a related appeal. An appellate court should rarely modify a pendente lite award, and then ” only under exigent circumstances, such as where a party is unable to meet his or her financial obligations, or justice otherwise requires”. Further, pendente lite awards “should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse with due regard for the pre-separation standard of living” “Any perceived inequities in pendente lite support can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored”. Here, in denying that branch of the defendant’s cross motion which was for an award of pendente lite child support, the Supreme Court properly considered the defendant’s actual reasonable living expenses, and there are no exigent circumstances sufficient to disturb the Supreme Court’s determination on this issue. Accordingly, the Supreme Court properly denied that branch of the defendant’s cross motion which was for an award of pendente lite child support.

The Supreme Court properly denied that branch of the defendant’s cross motion which was for an award of an interim attorney’s fee.

Published on: June 21, 2014

Father Requests Downward Modification of Child Support

by Stephen Bilkis

A New York Family Lawyer said that, in an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County, entered March 17, 1993, which, after a nonjury trial, inter alia, (1) directed him to pay the plaintiff wife maintenance in the amount of $2,000 per month for a period of nine years, (2) directed him to pay child support in the amount of $3,097 per month, and (3) awarded the wife a money judgment of $69,043 insofar as it included an award for necessaries, and the plaintiff wife cross-appeals from so much of the same judgment as awarded her a money judgment in the amount of only $69,043.

A New York Custody Lawyer said that, in another child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, dated August 10, 2009, which denied his objections to an order of the same court dated June 9, 2009, which, after a hearing, denied his petition for a downward modification of his child support obligation.

A Suffolk County Family Lawyer said the issues in this case are whether the court erred in decreeing the defendant husband to pay the plaintiff wife maintenance in the amount of $2,000 per month for a period of nine years; directed him to pay child support in the amount of $3,097 per month; and awarded the wife a money judgment of $69,043 insofar as it included an award for necessaries; and whether defendant husband is entitled to modification of his child support obligation.

Published on: June 8, 2014

Wife Motion for Contempt of Court Against Husband

by Stephen Bilkis

A New York Family Lawyer said the plaintiff (“Wife”) moves by Order to Show Cause seeking an Order a) holding Defendant (“Husband”) in contempt of Court for his willful failure to comply with the Judgment of Divorce entered in this action, and for his willful refusal to comply with the Judgment of this Court to pay the sum of $43,351.87, together with interest thereon in the sum of $6,394.40, and for the failure to comply with the terms of the So-Ordered Stipulation of the parties; and b) fining and/or imprisoning Husband for such contempt.

A New York Custody lawyer said that the parties were married on November 20, 1987, and there are three children of the marriage. The parties’ marriage was dissolved pursuant to the Judgment of Divorce, which incorporated but did not merge with a Stipulation of Settlement (the “Stipulation”) which states in pertinent part that: The Husband shall pay to the Wife, as and for child support, the sum of $1,785.0 per month. The parties agree that the child support payments will be made through the Nassau County Support Collection Unit.

Pursuant to the Order of the Judge, the Court ordered pendente lite relief awarding to the Wife the sum of $1,400.00 per month temporary maintenance, as well as child support in the sum of Two Thousand ($2,000.00) Dollars per month. The award was retroactive to the date of service, which was July 18, 2006.

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.