Articles Posted in Divorce

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.

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.

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.