New York Family Law Blog

Published on: June 10, 2014

Plaintiff Brings Suit for Counsel Fees

by Stephen Bilkis

A New York Family Lawyer said this is an action to recover the value of legal services provided to plaintiff’s client in connection with support proceedings wherein defendant was the named respondent. This matter appears before this Court upon the following stipulated facts.

A Staten Island Family Lawyer said that in May 1969, the defendant and his former wife entered into a separation agreement which provided for the support of the parties’ children. By Mexican decree, the defendant and his former wife were divorced. Said decree incorporated the aforementioned separation agreement.

In January 1977, defendant’s former wife commenced a proceeding in the Family Court, Nassau County, seeking an increase in child support payments on behalf of the defendant’s children.

Published on: June 9, 2014

Paintiff Requests Order Removing Spouse from the Home

by Stephen Bilkis

A New York Family Lawyer said in an action for divorce, plaintiff wife has made two applications for orders directing defendant to vacate the marital home; to provide support and maintenance for her and the issue of the marriage; and to restrain him from removing furnishings, furniture and personal property from the residence.

A New York Child Custody Lawyer said when the motions were originally submitted, the Court discovered that an application which had been made to the Family Court, Suffolk County, for an order of protection was being sent to the Court in Nassau County for determination. An inquiry to the Nassau County Family Court confirmed that information. Since the motions concerned ‘relief associated with the Family Court proceeding’, the Court referred them to that Court for hearing and determination. Then the applications were referred back to the Family Court in Suffolk County. In June 1971, a Judge of that Court, after a discussion with counsel, returned the matters to the Court for determination. The Court have received and carefully reviewed the transcript of the remarks made on that occasion.

A Long Island Family Lawyer said that referral of these motions was not made without authority nor was it intended to enlarge the Family Court’s jurisdiction. That Court has original jurisdiction over support proceedings and the applications for support and custody in matrimonial actions referred to it by this Court. The Family Court Act, recognizing the obvious, i.e., that a husband is chargeable with the support of his wife and a father is obligated to support his children, authorized the Family Court to require him to provide for their support as that court might determine. Furthermore, the Family Court may make an allowance for counsel fees in proceedings seeking support for the wife and children. In actions for divorce, separation or annulment, the Supreme Court on its own motion may refer to the Family Court applications for temporary support or temporary or permanent custody.

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 7, 2014

Wife Files a Motion for Upward Modification of Child Support

by Stephen Bilkis

A New York Family Lawyer said in a condition of settlement incorporated but not merged into the decision of divorce, a couple agreed to waive their right to fix the support of their child under the standards act for some period, during which time the father, a licensed urologist who was attending law school, would make no payments to the mother for the support of their child. The condition further stated that the husband agrees to pay the wife the support of the child pursuant to the act based upon his earnings at the time. Subsequently, in an order, the father was directed to pay the child support to the mother in the amount of eight hundred eighteen dollars, twice per month, which was based upon the father’s salary that was one hundred twenty five thousand dollars per year as a first year associate in a law firm.

A New York Custody Lawyer said the mother then initiated a proceeding for an upward modification, alleging that the father was now employed as an urologist earning approximately three hundred fifty thousand dollars per year. But, upon dismissal of the proceeding on the ground that the mother failed to state a reason for action for modification, the mother filed objections to the family court, but some of which were denied.

Subsequently, the mother filed an appeal from an order of the family court which denied her objections to so much of three orders of the same court, as denied her cross motion to limit the issues with regard’s the father’s income, granted the branch of the father’s motion which was to dismiss the proceeding for failure to state a reason for action, and dismissed the proceeding.

Published on: June 6, 2014

Wife Holds Former Husband in Contempt for Failure to Comply with Child Support

by Stephen Bilkis

A New York Family Lawyer said in a matrimonial action in which the parties were divorced by judgment, the complainant former husband appeals, as limited by his brief, from so much of an order of the Nassau County Supreme Court as granted the defendant former wife’s motion to hold him in contempt for failure to comply with the maintenance and child support provisions in the parties’ separation agreement, which was incorporated by reference into the judgment of divorce, directed his incarceration for a period of 90 days in the Nassau County Correctional Facility, permitted him to purge himself of the contempt by paying the sum of $175,000 to the former wife, and denied his cross application for a downward modification of his maintenance and child support obligations.

The appeal from so much of the order as committed the former husband to a term of incarceration of 90 days in the Nassau County Correctional Facility is dismissed as academic, without costs or disbursements, as the period of incarceration has expired; and it is further ordered that the order is reversed insofar as reviewed, on the law, without costs or disbursements, motion is denied, and the matter is remitted to the Nassau County Supreme Court for a new determination, after a hearing, of the cross application.

A New York Custody Lawyer said the Supreme Court erred in finding that the former husband was in contempt. In the absence of proof of an ability to pay, an order of commitment for willful violation of judgment in a matrimonial action may not stand. The record fails to support a finding that the former husband had the ability to pay his maintenance and child support obligations as set out in the parties’ separation agreement.

Published on: June 5, 2014

Court Hears Paternity Case

by Stephen Bilkis

A New York Family Lawyer said complainants initiated a paternity proceeding against a man. An infant had been born and after a denial by the man, preparation for a contested proceeding followed. However, both parties with their attorneys resolved the matter and executed a written agreement.

A New York Custody Lawyer said in the main agreement, the man admitted paternity and committed himself to pay $3,500 for the complainant’s counsel fees and blood test expenses. The man also committed to pay the sum of $216.67 per month and to establish a trust fund for the child in the amount of $20,000.

Under the terms of the trust agreement, the interest from the amount was to be used by man to subsidize the monthly child support payments with the amount to be given over to the child when he attained twenty one years or, if the child did not survive, to revert to the man. But, if the man died during the child’s infancy, the complainant mother herself would succeed as trustee.

Published on: June 4, 2014

Petitioner Brings Action to Transfer Title to Property in Divorce Proceeding

by Stephen Bilkis

A New York Family Lawyer said 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 Nassau County Supreme Court which, upon a decision of the same court made after a nonjury trial, adjudicated him in contempt of court, distributed the marital property, and awarded the complainant wife with maintenance and counsel fees. The notice of appeal from the decision is deemed a notice of appeal from the judgment.

A New York Custody Lawyer said it is ordered that the judgment is modified, on the law, by deleting the provision thereof directing the defendant husband to transfer the title of certain commercial property to the wife; as so modified, the judgment is affirmed insofar as appealed from, with costs to the wife, and the matter is remitted to the Nassau County Supreme Court for the entry of an appropriate amended judgment in accordance herewith.

A Manhattan Family Lawyer said in order to sustain a finding of civil contempt under Judiciary Law based on a violation of a court order, it is necessary to establish by clear and convincing evidence that a lawful court order clearly expressing an unequivocal mandate was in effect, that the person alleged to have violated the order had actual knowledge of its terms, and that the violation has defeated, impaired, impeded, or prejudiced the rights of a party. Here, the evidence was sufficient to establish that the defendant husband knowingly disobeyed the Supreme Court’s order directing him to pay an expert to ascertain the value of his business and also failed to comply with the pendente lite (awaiting the litigation) support order. Consequently, the Supreme Court properly adjudicated the defendant husband in contempt of court.

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.