New York Family Law Blog

Published on: May 18, 2014

Child Guardian Files for Compulsory Accounting

by Stephen Bilkis

A New York Family Lawyer said this is a proceeding wherein A and B, as parent and legal guardian of C, filed a petition for a compulsory accounting and related relief pursuant to Surrogate Court Procedure Act §2205 on 9 July 2012, against E, co-executor and co-trustee, of the estate of F. E filed a response to petition for compulsory accounting seeking dismissal of the petition to compel an accounting for lack of standing of petitioners.

A New York Child Custody Lawyer said in rendering this decision the court has considered the petition to compel an accounting filed on 9 July 2012, the response to petition for compulsory accounting by E acknowledged on 6 August 2012, Petitioner’s Memorandum of Law dated 10 September 2012, Memorandum by G, Esq. on behalf of E, dated 13 September 2012, petitioners’ responding memorandum dated 1 October 2012 and the accounting proceeding responding memorandum by G filed 1 October 2012.

A Suffolk County Family Lawyer said that F, the testator, died on 2 March 2000. He was survived by his wife, H; the respondent herein, E; and two sons, I and J. At the time of the death of F, K had two infant children and L had four infant children. Two of the then minor children of J, A and C, are petitioners herein. A is no longer a minor.

Published on: May 17, 2014

Court Determines Whether Personal Injury Case States Cause of Action Against Defendant Parents

by Stephen Bilkis

A New York Family Lawyer said that on or about September 27, 2008 at about 2:30 a.m, plaintiff was a rear seat passenger in a vehicle operated by defendant driver and owned by his mother, and her husband, sustained injuries when defendant driver lost control of his vehicle and struck a tree head on. A Nassau Order of Protection Lawyer said that, at the time of the accident, only possessed a junior’s driver’s license. Prior to the accident, between the hours of 8:30 p.m. and 10:30 p.m., defendant driver and plaintiff were a guests at a party held in the home of defendant, located in Port Washington, New York, and hosted by teen-aged defendant and her daughter. Defendant was at her place of employment in New York City and was not on site during the party. All guests were under the age of twenty-one (21) and alcohol and drugs were consumed on the premises. Defendant driver is alleged to have consumed alcohol and drugs at the party and to have left the party in an intoxicated and/or impaired state. Plaintiff has admitted during his pre-trial deposition, that he consumed drugs and alcohol during the hours preceding the accident. Defendant driver is alleged to have operated his vehicle while under the influence of controlled substances and the subject accident was a direct consequence.

A New York Child Custody Lawyer said that, plaintiff and his mother, “plaintiffs”, commenced the underlying personal injury action against all defendants on or about December 9, 2008. The plaintiffs allege liability against defendant driver under the theory of negligence and against his parents, vicarious liability as owners of the vehicle. In addition they plead causes of action against his parents in negligence per se, and negligent entrustment of a vehicle. The plaintiffs also allege that plaintiff victim sustained a serious injury pursuant to the no fault statutory provisions. The defendants set forth five affirmative defenses in its answer: Plaintiff’s damages were caused by his culpable conduct; the complaint failed to state a cause of action; he failed to use or misused his seatbelt; he did not sustain a serious injury; and he was obligated to mitigate his damages and he failed to do so.

A Nassau Child Custody Lawyer said that, upon the plaintiffs’ motion on or about May, 2009, this Court granted summary judgment as to the first cause of action against the defendants, while denying the defendants’ motion for an Order consolidating the three pending related causes of action against them, instead joining the three actions for a joint trial. The plaintiffs then moved this Court on or about December 21, 2009 pursuant to CPLR 3212, for an Order granting Summary Judgment as to the second cause of action alleging that plaintiff sustained a serious injury, and for an Order pursuant to CPLR 3211 dismissing the defendants’ first, second, third, and fifth affirmative defenses. The Court granted the plaintiff’s motion as to the first, second and third affirmative defenses while reserving its decision on the fifth pending completion of discovery. The defendants’ concession that plaintiff sustained a serious injury, obviated striking of the fourth affirmative defense.

Published on: May 16, 2014

Court Decides Whether to Enforce Provisions of Prior Judgment

by Stephen Bilkis

A New York Family Lawyer said that, in a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, dated March 30, 2009, which denied his objections to so much of an order of the same court, dated October 14, 2008, as granted that branch of the mother’s motion which was to preclude evidence of the father’s finances and, in effect, granted the mother’s petition to enforce the provisions of a judgment of divorce dated July 9, 1996, and the parties’ separation agreement which was incorporated but not merged into the judgment of divorce, obligating the father to pay the college expenses of the parties’ child.

A New York Custody Lawyer said the issue in this case is whether the court erred in granting to enforce the provisions of a judgment of divorce dated July 9, 1996.

A New York City Family Lawyer said the court in deciding the case said that, contrary to the father’s contention, there is no requirement that a movant identify a specific statute or rule in the notice of motion, only that the notice “specify the relief demanded and the grounds therefor” (CPLR 2214 [a]). Even though the mother’s notice of motion and supporting affirmation did not formally and specifically request relief pursuant to CPLR 3126, where, as here, there is no misunderstanding or prejudice, “a court may grant relief that is warranted by the facts plainly appearing on the papers on both sides”. Here, the mother’s notice of motion clearly seeks the relief of preclusion based upon the father’s alleged willful failure to respond to her discovery demands. Accordingly, because the father was adequately apprised of the relief sought and the grounds therefor, there was no prejudice, and the Child Support Magistrate did not err in treating the motion as one made pursuant to CPLR 3126.

Published on: May 15, 2014

Mother Petitions Court to Hold Spouse in Contempt of Child Support Order

by Stephen Bilkis

A New York Family Lawyer said that, in a matrimonial action in which the parties were divorced by judgment entered March 16, 1998, the father appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Nassau County, dated December 14, 2007, which, inter alia, after a hearing, granted the mother’s motion to hold him in contempt for failure to comply with a prior order of the same court, dated July 19, 2006, and committed him to a term of incarceration for a period of 30 days unless he purged himself of his contempt by paying the sum of $25,000 to the mother, and granted the mother’s separate motion for an upward modification of his child support obligation from the sum of $2,058 per month to the sum of $3,535.50 per month, and for an award of 50% of certain educational expenses for the parties’ two younger children.

A New York Child Custody Lawyer said that, the parties were divorced in 1998, and has four children. The instant appeal is from an order which granted the mother’s motion to hold the father in contempt for failing to comply with a prior order requiring him to contribute to the college tuition of the parties’ two older children, and granted her separate motion for upward modification of child support and for an award of certain educational expenses for the parties’ two younger children.

A Westchester County Family Lawyer said the issue in this case is whether the mother’s motion that the father be placed in contempt for failing to comply with a prior order requiring him to contribute to the college tuition of the parties’ two older children, and to grant her separate motion for upward modification of child support and for an award of certain educational expenses for the parties’ two younger children.

Published on: May 13, 2014

Mother Appeals Child Support Order

by Stephen Bilkis

This is a child support proceeding pursuant to Family Court Act, article 4, wherein the mother appeals from an order of the Family Court, Nassau County dated 18 June 2007 which denied her objections to an order of the same court dated 15 December 2006, granting the father’s petition for downward modification of his child support obligation as set forth in a judgment of divorce entered 19 April 2005, to the extent of reducing his child support obligation from the sum of $2,400 per month to the sum of $1,448.12 per month.

A New York Family Lawyer said the court modifies, on the law, the order dated 18 June 2007 by deleting the provision thereof denying the mother’s objection to so much of the order dated 15 December 2006 as granted the father’s petition for downward modification of his child support obligation to the extent of reducing his child support obligation from the sum of $2,400 per month to the sum of $1,448.12 per month, and substituting therefor a provision sustaining that objection, and vacating the provision of the order dated 15 December 2006 granting the father’s petition for downward modification of his child support obligation to the extent of reducing his child support obligation from the sum of $2,400 per month to the sum of $1,448.12 per month; as so modified, the order dated 18 June 2007 is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for a new determination of the father’s child support obligation.

A New York Child Custody Lawyer said the long- term marriage of the parties produced three children. In 2003, the parties entered into a stipulation of settlement which was incorporated but not merged in the parties’ judgment of divorce, entered 19 April 2005. In relevant part, the stipulation of settlement provided that the parties would each pay one half of the children’s college expenses. The settlement further states that at such time as a child attends college, the amount of Child Support shall be readjusted based on Reinisch v Reinisch.

Published on: May 12, 2014

Father Appeals Child Support Order

by Stephen Bilkis

A York Family Lawyer said this is a child support proceeding pursuant to Family Court Act, Article 14, wherein the father appeals from an order of the Family Court, Nassau County entered on 5 May 2006 which denied his objections to eight orders of the same court, seven of which was dated 1 December 2005 and one dated 24 April 2006, inter alia, denying his petition for a downward modification of child support and granting the mother attorney’s fees.

The court affirms the order with costs.

A New York Child Custody Lawyer said the father filed a petition in 1997 seeking a downward modification of his child support obligation. Following a hearing, the Support Magistrate denied the petition on the ground that the father had caused his own inability to pay child support.

Published on: May 11, 2014

Husband Appeals Divorce Judgment

by Stephen Bilkis

A New York Family Lawyer said this is an action for a divorce and ancillary relief wherein the husband appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County, entered 21 December 2005, as, upon a decision of the same court dated 16 August 2005, made after a nonjury trial, awarded the wife a divorce on the ground of cruel and inhuman treatment, directed him to pay child support in the sum of $2,107 per month, directed him to pay child support arrears in the sum of $61,420, distributed 60% of the equity in the marital residence to the wife and 40% of the equity to him, and directed him to pay the sum of $39,732 to the wife’s counsel.

A New York Custody Lawyer said the court orders modification, on the law, of the judgment by deleting subparagraph (h) of the fifth decretal paragraph thereof directing the husband to pay child support arrears in the sum of $61,420, and by deleting the eighth decretal paragraph thereof directing the husband to pay child support in the sum of $2,107 per month. As modified by the court, the judgment is affirmed insofar as appealed from, without costs or disbursements and the matter is remitted to the Supreme Court, Nassau County for further proceedings.

A Brooklyn Family Lawyer said the court further ordered that the husband shall continue to pay child support in the sum of $2,107 per month until the Supreme Court, Kings County makes a new determination of child support and child support arrears.

Published on: May 11, 2014

Court Decides Guardianship Hearing

by Stephen Bilkis

The children’s maternal grandmother, mistakenly relying upon an improperly executed last will signed by her daughter who had attempted to appoint the children’s paternal aunt as the children’s guardian.

A New York Family Lawyer said on the same day, the children’s paternal aunt and her mother advised a judge that they intended to take the children to their home in New York. The judge stated that, because no one else claimed for the custody of the children, he did not detect any objection to their plan. The court indicate the nature of the initial acquisition of the physical custody of the children by the children’s paternal aunt and her mother in order to emphasize that their conduct was not tainted by any unlawful or duplicitous act.

A New York Child Custody Lawyer said as a result, three children left their home to live with their paternal aunt and grandmother in Nassau County after the death of their parents.

Published on: May 10, 2014

family

by Stephen Bilkis

This is an action for a divorce and ancillary relief wherein the plaintiff former wife appeals, as limited by her notice of appeal and brief, from stated portions of a judgment of the Supreme Court, Nassau County entered 26 July 2005, which, upon a decision of the same court dated 8 March 2005, after remittitur from this Court, inter alia, denied her an award of retroactive maintenance and failed to award interest on the retroactive child support award.

The defendant former husband cross-appeals, as limited by his brief, from so much of the same judgment as failed to credit him for certain payments made during the pendency of the action, awarded retroactive child support in the sum of $93,250, failed to value his interest in his law practice in accordance with the recommendation of the court-appointed expert, directed him to pay maintenance in the amount of $42,000 per year for a period of 15 years and $24,000 per year thereafter until the death of either party, and awarded compound interest of 1.5% per month on any untimely distributive award payments.

The court modifies the judgment, on the law, by deleting the provision thereof awarding compound interest of 1.5% per month on any untimely distributive award payments, and substituting therefor a provision awarding interest at the rate of 9% per annum on any untimely distributive award payments, by deleting the provision thereof awarding retroactive child support in the sum of $93,250, and by deleting the provision thereof denying the plaintiff an award of retroactive maintenance.

Published on: May 9, 2014

Father Applies for Upward Modification of Child Support

by Stephen Bilkis

A New York Family Lawyer said in a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, which denied his objections to so much of an order of the same court, as denied his petition for an upward modification of the mother’s child support obligation and allocation of child care and college expenses.

A New York Child Custody Lawyer said that the Court ordered that the order, is modified, on the law, by deleting the provisions thereof denying the petitioner’s objections to so much of the order, as denied those branches of the petition which were for an upward modification of the mother’s basic child support obligation and allocation of child care expenses, and substituting therefor a provision sustaining those objections, and vacating the provisions of the order, which denied the branches of the petition which were for an upward modification of the mother’s basic child support obligation and allocation of child care expenses as so modified, the order, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for a hearing and a new determination thereafter of the mother’s basic child support obligation pursuant to the Child support Standards Act and her share of child care expenses.

A Long Island Family Lawyer said the Support Magistrate’s order denied the father’s petition for an upward modification of the mother’s child support obligation on the grounds that the mother’s original child support obligation of $120 per week, which included child care expenses, was set forth in a stipulation of settlement incorporated but not merged in the parties’ judgment of divorce, no unreasonable and unanticipated change in circumstances had occurred, and the petitioner failed to demonstrate that the child’s needs were not being met. However, that determination was contrary to the express terms of the stipulation, which provided: “any change to the provisions hereof that the parties cannot agree upon may be the subject of further court proceedings.”