January 15, 2020 Decisions

January 20, 2020
By PetroskeLaw

Unequal division of assets not supported by the record, Maintenance vacated on newly discovered evidence of $800,000 error in retirement asset value
Achuthan v. Achuthan, 2016-12655; 2018-05634

The plaintiff appealed from a judgment of divorce of the Supreme Court, Suffolk County (Reilly, J.), dated October 21, 2016 which, inter alia, directed the plaintiff to pay maintenance to defendant of $2,000 per month for ten years, and distributed the marital property 51% to defendant and 49% to plaintiff. At the time of trial, the plaintiff and the defendant were approximately 80 years old and 71 years old, respectively. The lower court reasoned that “[s]ome additional assets were distributed to the defendant as an adjustment for the loss of health insurance benefits.”

Plaintiff also appeals from an Order dated March 16, 2018 which denied his motion to vacate his maintenance obligation and award him 60% of the marital assets, based on newly discovered evidence. After the entry of judgment, the plaintiff was notified that the value of the marital portion of his retirement account which TIAA-CREF had previously provided, and which was stipulated at trial, was incorrect by approximately $800,000.

Based on the recalculation by TIAA-CREF, the marital portion of the plaintiff’s TIAA-CREF account was increased by approximately $800,000. Considering the defendant’s receipt of an additional $400,000 to her already substantial equitable distribution award of almost $2 million and the reduction of the plaintiff’s separate property assets by $400,000, as well as the circumstances of this case, including the parties’ ages at the time of trial, and the parties’ incomes, the Appellate Division held there was no basis to award the defendant maintenance.

The Appellate Division also held there was no basis for an unequal distribution of marital assets. The Supreme Court’s reasoning that the defendant required additional marital assets “as an adjustment for the loss of health insurance benefits” was flawed, inasmuch as the defendant is eligible for Medicare and she received a sizable award of marital assets. Similarly, there is no basis for the defendant to receive less than 50% of the marital assets. This case is unlike those cases in which one of the parties has engaged in conduct constituting economic fault (see Stewart v Stewart, 133 AD3d 493; Branche v Holloway, 124 AD3d553; Frey v Frey,68AD3d 1052; Michaelessi v Michaelessi, 59 AD3d 688), or the contributions to the marriage are so one-sided (see Evans v Evans, 57 AD3d 718; Hathaway v Hathaway, 16 AD3d458; K. v B., 13 AD3d 12) that an unequal distribution is appropriate.

Although the parties lived separately for much of the marriage, and did not enter an economic partnership in a traditional sense, the marriage was “independently cooperative” and the economic decisions made by the parties during their marriage should not be second-guessed by the court (see Mahoney-Buntzman v Buntzman, 12 NY3d 415, 421).


Court declined to modify child support due to change in child’s primary residence where parties had agreed on “liberal living arrangement” for children
Matter of Muenichsdorfer v. Biagiotti, 2019-04536

In a Family Court proceeding, the mother filed a petition for an upward modification of child support and enforcement of the father’s obligation, as set forth in their separation agreement incorporated into a Judgment of Divorce, to pay her one half of any employment bonus until November 30, 2022. The father filed a petition seeking an award of child support payable by the mother due to the parties’ son living primarily with him, a downward modification of child support, and enforcement of the mother’s obligation to pay 50% of extracurricular and school-related expenses.

The Appellate Division agreed with the Family Court that the father’s severance package was not an “employment bonus” to which the mother was entitled to share, and further affirmed that the mother owed the father $11,374 for extracurricular and school-related expenses.

The order directing the father to pay $18,006 to the mother for her share of employment bonuses was modified to $14,006, as the record contains no evidence of the total amount of the bonuses received by the father other than the father’s admission that he owes the mother the sum of $14,006.

The Second Department affirmed the dismissal of the father’s request for child support for the parties’ son. Since the parties’ agreement sets forth a liberal living arrangement for the parties’ children, the father failed to establish that the son living “primarily” with him constitutes an unreasonable or unanticipated event (see J.A.H. v E.G.M.,171 AD3d 710, 712-713; DelGaudio v DelGaudio, 126 AD3d 848).

Finally, the Appellate Division held that the Family Court should have granted the father’s objections to the upward modification of his child support obligation. The parties’ agreement stated that, after the initial three-year period of child support, they would review their financial support arrangement at least bi-annually, and upon any significant change in their circumstances, to determine whether it continues to reflect the needs determined by their parenting plan. They further agreed to meet to determine a new child support level on or about May 1, 2020, and upon a reduction in maintenance payments. The mother did not establish a significant change in circumstances, an increased need of the parties’ children, or that the parties’ financial support arrangement no longer reflected the needs determined by their parenting plan. Moreover, the provision in the parties’ agreement which requires them to meet to determine a new child support level had not been triggered.


Summary judgment granted dismissing plenary action to vacate Stipulation
McCaul v. McCaul, 2016-11771

The parties were divorced by judgment entered April 29, 2014. In May 2015, the plaintiff commenced a plenary action to vacate the stipulation of settlement which was incorporated into the judgment on the grounds of fraud, undue influence, coercion, and unconscionability. The defendant moved for summary judgment dismissing the complaint in the plenary action and further moved to enforce the stipulation of settlement by directing the plaintiff to comply with the provision requiring reimbursement to the defendant for repairs made to the marital residence. The Appellate Division affirmed the order which granted the defendant’s motion for summary judgment dismissing the complaint in the plenary action, and granted the defendant’s separate motion to enforce the stipulation to the extent of directing a certain sum be released from escrow to the defendant.

The defendant properly submitted evidence portraying that the plaintiff was represented by
independent counsel in the divorce action, the parties engaged in financial disclosure in the divorce action, the plaintiff received substantial benefits pursuant to the stipulation of settlement, and the stipulation of settlement recites that it was entered into freely, knowingly, and voluntarily, and that the parties had not been threatened or coerced into entering into it (see McFarland v. McFarland, 70 NY2d 916, 917; Sabowitz v. Sabowitz, 123 AD3d 794, 795; Schultz v. Schultz, 58 AD3d 616, 617). Therefore, the Appellate Division agreed with the Supreme Court’s determination to grant the defendant’s motion to enforce the stipulation of settlement by directing the release of those funds from escrow.


Grandparents granted limited visitation at Father’s home, Court erred in dismissing petition alleging violation of grandparent visitation without a hearing
Matter of Shimunov v. Davydov, 2019-02595; 2019-06747

The maternal grandparents commenced a proceeding seeking visitation with the child following the child’s mother’s death. The Appellate Division found that the Family Court providently exercised its discretion in limiting their visitation with the child to every other Sunday at the Father’s house or a place of his choosing, based on the father’s credible testimony about his concerns regarding unsupervised overnight visits with the grandparents. “[C]ourts should not lightly intrude on the family relationship against a fit parent’s wishes,” and “[t]he presumption that a fit parent’s decisions are in the child’s best interests is a strong one” (Matter of E.S. v P.D., 8 NY3d 150, 157; see Matter of Fitzpatrick v Fitzpatrick, 137 AD3d 784, 786).

The Family Court should not have summarily dismissed the petition that alleged that the father interfered with the grandparents’ visits with the child because the petition sufficiently alleged that the father did so. The issue should have been resolved at a hearing and therefore, the order dismissing the violation petition without a hearing is reversed, and the matter is remitted to the Family Court.


Petitioner failed to prove family offense by fair preponderance of the evidence
Matter of Gertrudis v. Julceus, 2019-03085

After a hearing, the Family Court denied the petition and dismissed the proceeding. The Appellate Division affirmed, finding that the determination that the petitioner failed to establish that the respondent committed the alleged family offenses was based on credibility assessments which are supported by the record and entitled to deference (see Matter of Isabel T. v. Lucien W., 138 AD3d 521; Matter of Kayla F. [Kevin F.], 130 AD3d 724, 725).


Court erred in expanding parental access schedule absent recommendation from court-appointed expert, Defendant failed to present sufficient evidence for recoupment credit
Neito v. Neito, 2018-07258

Defendant appealed from those portions of a Judgment of Divorce (Nassau County), which set a parental access schedule for the plaintiff with the parties’ two children and failed to credit the defendant for his equitable share of marital funds spent on plaintiff’s separate property house.

The lower court erred in granting a parental access schedule for the plaintiff which expanded on the parties’ existing so-ordered Stipulation. The so-ordered Stipulation was entered into during the trial on custody and family offense allegations, and set a schedule of therapeutic, supervised, and unsupervised parental access for the plaintiff with the two children.

The court-appointed expert, whose testimony the court credited, did not recommend an expansion of the plaintiff’s parental access with the children, and the court provided no explanation for expanding the existing schedule. When making custody and parental access determinations, “the court may consider the recommendation of a court-appointed expert, and the position of the attorney for the child” (Matter of Oakley v Cond-Arnold, 130 AD3d 737, 738-739; see Baker v Baker, 66 AD3d 722, 723). Recommendations of court-appointed experts “are entitled to some weight, unless the opinion is contradicted by the record” (Matter of Detwiler v Detwiler, 145AD3d 778, 780; see Matter of Spampinato v Mazza, 152 AD3d 525, 527).

The Appellate Division affirmed the Supreme Court’s determination not to award the defendant a credit for his equitable share of precommencement marital funds allegedly used for the mortgage and improvements on the plaintiff’s separate property house. While it is true that “where marital funds are used to payoff the separate debt of the titled spouse on the separate property, the nontitled spouse maybe entitled to a credit” (Bernholc v Bornstein,72 AD3d625, 628), here, the defendant failed to present sufficient evidence at trial to enable the court to award him a credit.


Hearing required to resolve factual issues relating to custody, Court erred in relying on forensic report, $70,000 attorney fee award for frivolous conduct reversed
Brin v. Shady, 2019-00903

The plaintiff appeals from a post-judgment Order of the Supreme Court, Suffolk County (Quinn, J.) which, without a hearing, modified the parties’ divorce Stipulation to award the defendant sole legal custody of the parties’ child, directed that parental access between the plaintiff and the child “shall take place in accordance with the child’s preferences,” granted a restraining order prohibiting the plaintiff from interfering with the child’s life at boarding school, directed the plaintiff to contribute towards medical and college expenses, and awarded defendant $70,000 in counsel fees, and denied plaintiff’s cross motion which for therapeutic parental access with the child and counsel fees.

The Appellate Division reversed, denied the defendant’s motion for counsel fees, and remitted the matter for further proceedings.

The Court of Appeals has stated that custody determinations should “[g]enerally” be made “only after a full and plenary hearing and inquiry” (Obey v Degling, 37 NY2d 768, 770; see S.L. v J.R., 27 NY3d 558, 563). “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” (S.L. v J.R., 27 NY3d at 563; see Eschbach v Eschbach, 56 NY2d 167, 171).

The record demonstrated unresolved factual issues which required a hearing. Moreover, the Supreme Court relied on the hearsay statements and conclusions of the forensic evaluator, whose opinions and credibility were untested by either party (see Matter of Migliore v Santiago, 165 AD3d 942, 944; Matter of Jennifer J.H. v Artrieo J.R., 148 AD3d 809,810).

The lower court further erred in modifying support provisions of the parties’ Stipulation, and denying the plaintiff’s motion for attorney’s fees, without adequate inquiry into the parties’ financial circumstances.

Finally, the court improvidently exercised its discretion in granting the defendant $70,000 in counsel fees as the defendant failed to establish the plaintiff’s conduct was frivolous.


Family Court erred in dismissing custody modification petition at close of mother’s case where she made prima facie showing of change in circumstances
Matter of Campbell v. Blair, 2018-11169

Appeal from an Order of the Family Court, Nassau County, which after a hearing, granted the father’s motion at the close of the mother’s case to dismiss her petition for custody modification, based on failure to establish a prima facie case for a change of circumstances.

The Appellate Division reversed and reinstated the petition. Accepting the mother’s evidence as true and affording her the benefit of every favorable inference, the mother presented sufficient prima facie evidence of a change of circumstances which might warrant modification of custody in the best interests of the child (see Matter of Morales v Goicochea, 175 AD3d 1294; Matter of James R.O. v Cond-Arnold, 99 AD3d801, 801-802). There was evidence that the mother had moved from the country of Jamaica and was now living in Staten Island with her husband and family. Further, the mother presented evidence that the stepmother had used corporal punishment on the child between the date of the custody order and the filing of the mother’s petition, despite the fact that the custody order expressly prohibited the parties from using or tolerating the use of corporal punishment on the child.


Child starting kindergarten is change of circumstances sufficient to modify Father’s child care expense obligation
Matter of Hayward v. Rodriguez, 2019-02657; 2019-02658

The mother appealed from a Family Court Order (Suffolk County) which denied her objections to an order modifying the father’s child care and health insurance obligations.

The Appellate Division affirmed, finding the lower court properly modified the order after a hearing. The father demonstrated sufficient change in circumstances based on the child’s enrollment in kindergarten and a significant decrease in child care expenses. The father should only be required to pay his pro rata share of the child’s health insurance premiums and reasonable child care expenses actually incurred by the mother (see Matter of Scarduzio v. Ryan, 86 AD3d at 574).