April 29, 2022
By PetroskeLaw

Shvalb v. Rubinshtein, 2019-05937

A trial was held in a divorce case on the issues of equitable distribution, child support, and counsel fees.  The lower court properly determined that the marital residence in Staten Island was the defendant’s separate property because he purchased it prior to the marriage (see Carniol v. Carniol, 306 AD2d 366, 368; Sidhu v. Sidhu, 304 AD2d 816, 817).

The lower court properly denied defendant’s for retroactive child support.  A party’s child support obligations begin, and are retroactive to, the date the applications for child support was made, which, here, was April 11, 2016, the date of the defendant’s answer and counterclaims (see Domestic Relations Law § 236[B][7][a]; DiLascio v. DiLascio, 170 AD3d 804, 808).

The lower court should have directed the plaintiff to maintain a life insurance policy for the benefit of the parties’ children until they became emancipated (see Domestic Relations Law § 236[B][8][a]; Mayer v. Mayer, 142 AD3d at 696).  The matter is remanded for a determination of the amount of life insurance sufficient to secure the plaintiff’s child support obligations (see Sinnott v. Sinnott, 194 AD3d 868, 879; Gillman v. Gillman, 139 AD3d 667, 668).


Mitches-Lewis v. Lewis, 2020-09717

The lower court providently exercised its discretion in determining that the defendant should be equitably estopped from denying paternity.  “While the defendant was not present for the child’s birth because he was on overseas military duty at the time, the defendant has not refuted the plaintiff’s assertation that his mother was present for the child’s birth.”  The defendant was named as the father on the birth certificate, and the child was given the defendant’s surname.  The parties ended their relationship in September 2008, however, after the child’s birth, the father voluntarily provided financial support for the child for approximately nine years prior to the time he first denied paternity in May 2018.  The defendant failed to make any effort to deny his status as the child’s father until after he received a letter in March or April 2018 from a child support enforcement office.  The defendant also stated that he received military benefits for the child since birth, and provided for health, vision, and dental insurance for the child.  The child, who is now 13 years old, has only ever known the defendant to be his father.  The Second Department found that given the circumstances of this case, the court providently exercised its discretion in determining that it was in the child’s best interest to apply equitable estoppel (see Matter of Shondel J. v. Mark D., 7 NY3d at 327; Matter of Rosa Y.A.P. v. Jose B.P.T., 184 AD3d at 574; Matter of Jose F.R. v. Reina C.A., 46 AD3d 564, 564-565).  The defendant’s cross motion to direct the parties and the child to submit to genetic marker testing was properly denied.