February 26, 2020 Decisions

March 2, 2020
By PetroskeLaw

Modification of custody supported by a sound and substantial basis in the record; Mother granted sole custody where Father’s behavior resulted in fear and anxiety in the children
Matter of Solomon v. Fishman, 2018-08743; Matter of Fishman v. Solomon, 2018-08934

The father appealed from an Order of the Family Court which granted the mother’s petition to modify the parties’ so-ordered agreement to award her sole legal and residential custody, and from an Order of Protection which directed the father to stay away from the children, their home, and their schools, except for certain supervised parental access, until and including June 13, 2019.

The order of protection is dismissed as it expired on June 13, 2019, and based on the circumstances of the case, “the issuance of that order of protection did not constitute a ‘permanent and significant stigma which might indirectly affect the father’s status in potential future proceedings (Matter of McClure v. McClure, 176 AD2d 325, 326).’”

Here, the determination that there had been a change in circumstances warranting a transfer of legal custody is supported by a sound and substantial basis in the record, and therefore, will not be disturbed (see Matter of Lewis-Daniel v. Daniel, 176 AD3d at 940). The record establishes that the father’s behavior has resulted in fear and anxiety in the children, and the parties’ relationship deteriorated after they entered into the May 2014 agreement.


Order of Commitment affirmed where Father failed to prove his failure to pay child support was not willful
Matter of Pastore v. Jameau, 2019-01274

The father appeals from an Order of Commitment of the Family Court, Suffolk County, which confirmed an order made after a hearing, finding that he willfully violated a prior order of child support, and committed him to the custody of the Suffolk County Correctional Facility for a period of six months unless he paid the purge amount of $8,550.64.

The father’s failure to pay child support constituted prima facie evidence of a willful violation of the order of child support (see Family Ct Act § 454[3][a]; Matter of Martin v Cooper,96 AD3d 849, 851). This prima facie showing shifted the burden to the father to come forward with competent, credible evidence that his failure to pay child support in accordance with the terms of the order of child support was not willful (see Matter of Powers v Powers, 86 NY2d 63, 69). The father failed to satisfy his burden.


Modification of shared custody supported by a sound and substantial basis in the record; Mother awarded sole custody, Father granted parental access on weekends and summer
Matter of Reyes v. Fisher, 2018-08442

The father appealed from an Order of the Family Court, Suffolk County, which granted the mother’s petition which was to modify a prior order of the Family Court, Queens County, so as to award her sole custody of the subject child.

Pursuant to an order dated August 5, 2013, which incorporated the parties’ stipulation of settlement, the parties were awarded joint custody of the child, with the child spending alternate weeks in each parent’s residence. The mother later filed a petition in the Family Court, Suffolk County, seeking, among other things, sole custody of the child. After the hearing, the court awarded the mother sole custody of the child, subject to the father’s parental access time, which included alternate weekends during the school year, and alternate weeks during summer recess.

The Family Court determined that there had been a change in circumstances sufficient to warrant a modification of custody in the child’s best interests since the entry of the prior custody order. The father did not regularly exercise his parenting time and despite his knowledge of the child’s food and pet allergies, he purchased a dog and gave the child food to which the child is allergic, and that his punishment of the child was excessive. Thus, the Family Court’s findings will not be disturbed because they are supported by a sound and substantial basis in the record (see Eschbach v. Eschbach, 56 NY2d at 173-174).


Family Court properly dismissed incarcerated father’s petition for parental access without a hearing where he had been convicted of sexual abuse of the children’s sister
Matter of Alcantara v. Garcia, 2017-08727

The father, who is incarcerated, filed a petition seeking parental access with two of the parties’ children. The court dismissed the petition without a hearing. The father appealed.

“A hearing is not necessary where undisputed facts are before the court (see Matter of Daclin-Goyatton v. Cousins, 172 AD3d 1369).” The Family Court’s determination to dismiss the father’s petition was supported by undisputed evidence that it was not in the children’s best interests to grant him parental access. The Family Court’s decision was based on the findings of a prior decision of the same court, made after a hearing, in which it determined that the children were derivatively abused by the father as a result of his sexual abuse of their sister. The lower court here also considered the father’s criminal conviction for the father’s sexual abuse of that child.

Request to relocate is a change in circumstances for modification of custody; Mother proved award of custody and relocation are in the child’s best interests
Matter of Kates v. Simpson, 2019-05488

The parties have one child, born in 2006. In 2016, the Family Court issued an order awarding sole legal and residential custody to the father following the execution of a stipulation between the parties. In 2017, the mother filed a petition seeking to modify the prior order of custody so as to award her sole custody of the child and to permit her to relocate with the child to Georgia. Following a hearing, the court granted the petition and the father appealed.

“In considering the issue of relocation, ‘the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements (Matter of Tropea v. Tropea, 87 NY2d 727, 740-741).’”

The Appellate Division, without any discussion of the facts of the case, held that there was a sound and substantial basis in the record that the changed circumstances justified awarding the mother custody of the child and permission to relocate the child to Georgia, and that such modification of the prior order of custody was in the best interests of the child (see Matter of Hall v. Hall, 118 AD3d 879, 882-883; Matter of Davis v. Ogden, 109 AD3d 539).



Supreme Court erroneously awarded plaintiff a double credit for the HELOC on the marital residence; other credits, as well as maintenance and child support, were affirmed
Alliger-Bograd v. Bograd, 2017-06355

The defendant appealed from stated portions of the judgment of divorce of the Supreme Court, Suffolk County (J. MacKenzie), which, after a nonjury trial determined the issues of child support, maintenance, and equitable distribution. The lower court found the plaintiff’s testimony credible, while it found that the defendant’s testimony was “extremely problematic.” The court noted that the defendant, among other things, did not adequately dispute the plaintiff’s allegations or submit any credible evidence or call witnesses to support his conclusory statements regarding his income and the plaintiff’s allegations.

On this appeal, the Second Department disagrees with the defendant’s contention that the lower court improvidently exercised its discretion in awarding credits to the plaintiff against the defendant’s equitable share of the marital residence. The plaintiff’s credible testimony and documentary evidence demonstrated that she liquidated premarital stocks of which $50,000 of the proceeds was used toward the purchase of the marital residence. Thus, the plaintiff is entitled to a contribution credit towards such payment before determining how to equitably distribute the remaining value of the asset (Rosenberg v. Rosenberg, 145 AD3d 1052, 1055, quoting Fields v. Fields, 15 NY3d 158, 167).

Plaintiff’s unrefuted testimony and evidence established that $66,952.97 taken from a home equity line of credit (“HELOC”) was utilized to pay debts incurred by the defendant’s business, and that the defendant had agreed to assume sole responsibility for the full repayment. Thus, the Supreme Court properly determined that the plaintiff was entitled to a credit for the loan against the marital residence. The Second Department also agreed that the Supreme Court providently exercised its discretion in awarding the plaintiff a specific credit for loans she made to the defendant for capital contributions to his business from monies she received from liquidating her premarital stock (see Kim v. Schiller, 112 AD3d 671, 674). The plaintiff was not awarded an interest in the defendant’s business.

However, the Second Department disagrees with the lower court’s calculations in determining the parties’ equities in the marital residence. The court awarded the plaintiff a “double credit” for the loan to the defendant’s business from HELOC by including that $66,952 in the combined mortgage and HELOC balance when determining the net equity. The judgment is modified to award the title of the marital residence to the plaintiff, with a balance owed to the plaintiff in the sum of $23,350, and the defendant’s share of the equity in the residence is $120,476.

The defendant argued that the plaintiff is not entitled to maintenance and that the court erred in failing to consider the plaintiff’s $440,000 inheritance, of which $320,000 remained. The court should have considered the plaintiff’s inheritance in determining the issue of maintenance (see Culen v. Culen, 157 AD3d 926, 929), however, the maintenance award of $100 per week for a period of 260 weeks is not an improvident exercise of discretion in light of the circumstances, including the length of the marriage and the parties’ incomes (see Strohli v. Strohli, 174 AD3d 938, 943). The court should have included a provision that the maintenance award was for that duration or until the death of either party or the plaintiff’s remarriage, whichever shall occur sooner (see Domestic Relations Law § 236[B][1][a]; Strohli v. Strohli, 174 AD3d at 943).

Lastly, the defendant argued that the child support obligation should be split evenly and that the lower court erred in determining the amount of his child support obligations based on the Child Support Standards Act (“CSSA”). “In cases where custody is shared equally, the parent having the greater share of the support obligation after applying the statutory formula is identified as the “noncustodial” parent for the purposes of support (see id. at 204). However, if the statutory formula “yields a result that is unjust or inappropriate,” the court “can resort to the ‘paragraph (f)’ factors and order payment of an amount that is just and appropriate” (Bast v. Rossoff, 91 NY2d at 729, citing Domestic Relations Law § 240[1-b][f], [g]). Thus, the court properly applied the CSSA in determining the child support award and it will not be disturbed.


Supreme Court erred in failing to direct plaintiff to pay defendant certain assets as previously determined in an equitable distribution order; Court providently exercised discretion in denying attorney fees request
Purcell v. Ngambo, 2018-01796

In an action for divorce and ancillary relief, an order was entered with respect to the equitable distribution of the parties’ assets, and as relevant here, the Supreme Court determined that the defendant was entitled to $12,125, representing one-half of the plaintiff’s 2015 annual bonus, and one-half of the value of all stock options earned by the plaintiff during the marriage. Since the stock options were nontransferable, the court directed that they be sold for distribution.

Following a trial on financial issues, but prior to the issuance of the equitable distribution order, the plaintiff sold 300 shares of stock which she had received in 2010, resulting in total net proceeds of $81,601.16. The plaintiff failed to distribute the defendant’s share of the proceeds from the sale of stock and did not pay the defendant his equitable share of the bonus.

The defendant later moved to hold the plaintiff in civil contempt, and for attorney’s fees. The Supreme Court granted that branch of the defendant’s motion which was to direct the plaintiff to pay him $13,125 only to the extent of awarding him $7,000, and otherwise denied the motion. The defendant appealed.

Contrary to the plaintiff’s contention, the Supreme Court lacked the authority to modify the equitable distribution award (see Smulczeski v. Smulczeski, 128 AD3d 671, 672), and should have directed the plaintiff to pay the defendant $13,125, as his share of the plaintiff’s bonus, rather than $7,000. The lower court should also have directed the plaintiff to pay $40,800.58 to the defendant for his equitable interest in the proceeds from the sale of stock options as it constituted marital assets.

Lastly, the Supreme Court providently exercised its discretion in denying those branches of the defendant’s motion which were to hold the plaintiff in civil contempt and for an award of attorney’s fees (see Santiago v. Santiago, 153 AD3d 752, 754; Vujovic v. Vujovic, 16 AD3d 490, 491).