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Archive for May, 2010
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Tuesday, May 25th, 2010
In Gaffney-Romanello v. Romanello, a Supreme Court Justice in Suffolk County determined that a husband had retained a new attorney merely to cause the presiding judge to recuse himself from a matrimonial action. Instead of recusing himself, the judge ordered the husband to hire a new attorney.
In Gaffney-Romanello, the wife commenced the divorce action in 2007. Approximately two years later, the parties represented to the Court that they were on the verge of reaching a settlement. However, in April 2009, the husband fired the firm that had been representing himself and retained new counsel, a Mr. H.
The presiding justice for the parties’ divorce action had previously forwarded a disciplinary matter to the grievance committed pertaining to Mr. H. As a result, the judge had recused himself from all cases handled by that attorney.
The prior disciplinary matter had been limited to Mr. H. personally and not his firm. Thus, the judge questioned Mr. H. if he intended to represent the husband in the pending matrimonial action, or if one of his three partners would be handling the matter. Each of those partners was well versed in matrimonial law.
Mr. H. informed the Court that only he would be representing the husband and thereafter sought the judge’s recusal. The judge denied the husband’s request for recusal, given the previous representation to the Court that the parties had settled the matter. The judge also determined that the husband was forum shopping, stating, “The appearance of impermissible and inappropriate Judge shopping is present and the prejudice to the Plaintiff far outweighs Defendant’s right to this specific counsel.” “Clearly the Defendant, who had previous counsel…hired Mr. H. solely to forum shop,”
Posted in Divorce Laws/ Issues, Pre-Trial Motions | Comments Off
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Thursday, May 20th, 2010
The New York Times printed an article on September 2, 2009 bringing light to an often unrecognized wartime stress on military families: custody battles during and after service abroad.
The article focused on Leydi Mendoza, a specialist with the New Jersey National Guard who returned from fighting in Iraq to confront a custody battle with the father of her two-year-old daughter.
Mendoza and the child’s father had established a written family care plan with military officials that provided for shared custody when she returned from service in Iraq. Upon her return, however, the father demanded full custody of their daughter, claiming that it was too disruptive for their daughter to spend more than a few hours with a mother she did not know. After a three month battle, the Family Court judge granted temporary residential custody to the father but permitted daily visits and weekly sleepovers to Mendoza.
In a similar New York case, when Tanya Towne’s National Guard unit was deployed to Irag in 2004, a family court judge granted temporary of her son to the father. Towne and the child’s father were divorced and Towne had had primary custody of the child. Before Towne returned home from service, the father sought permanent custody of the child. Family Court granted that request and Towne appealed. The Appellate Division affirmed the Family Court’s ruling. Though calling her an excellent mother, the judges determined that the deployment and other changes in Towne’s life, including the breakup of her second marriage, contributed toward an unstable home life.
A 2008 New York statute does provide some protection for military parents in custody cases. The statute requires that custody cases be delayed for at least 90 days during a parent’s overseas deployment and attorneys must be appointed to represent military parents. However, there is still no protection against a change in custody based upon military service.
Posted in Custody and Visitation, Divorce News | Comments Off
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Friday, May 14th, 2010
In Johnson v. Chapin, 12 N.Y.3d 461 (2009), the trial court awarded temporary maintenance to the wife and child support based upon an estimation of the husband’s income. At trial, it was determined that the Husband in fact earned a lower income than estimated. The Husband sought a credit for his the overpayments of temporary spousal maintenance and child support paid to the Wife.
The court provided the husband a credit for the overpayment of spousal maintenance. On Appeal, the Court of Appeals held that this credit was permissible as an acceptable exercise of discretion by the trial court.
However, the husband was not provided with a credit for the overpayment of temporary child support as calculated on his estimated income. The Appellate Division and Court of Appeals denied the Husband’s request, with the Court of Appeals providing that there is “a strong public policy against restitution or recoupment of [child] support overpayments.”
Given this ruling, it is imperative the litigants and their attorneys strive to provide the trial court with complete documentation and accurate income data prior to the award of temporary child support.
Posted in Child Support, Pre-Trial Motions | Comments Off
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Saturday, May 8th, 2010
In Mathie v. Mathie, 2009 NY Slip Op 6124 (2nd Dep’t 2009), the parties divorced in 2005 after entering into a stipulation of settlement which provided for joint legal custody of their son, Ryan, with physical custody to the mother and visitation to the father.
The parties’ stipulation stated that the mother was to reside in Nassau or Suffolk County for so long as the father resided in one of those counties. The negotiated parenting schedule for the father consisted of alternate weekends, except to accommodate the father’s hunting schedule. The father did not request time with Ryan during several major holidays, school vacations, or summer vacations.
As a result of the father not regularly seeing or communicating with Ryan in 2005, Ryan’s schoolwork suffered and he became depressed. Ryan’s therapist suggested that the father visit with Ryan during Monday evenings and Friday evenings when he did not have weekend visitation. By the following summer, the father had cancelled most Monday visits with Ryan.
In 2006, the mother remarried and informed the father that she wished to move with Ryan to New Jersey to live with her new husband. The father objected and the mother instituted an action to allow her to relocate to New Jersey with their son. While the father filed a counterclaim for an award of attorney’s fees, he did not seek custody of Ryan as an alternative to the mother’s relocation application.
On the appeal, the Court stated that when parties enter into a stipulation to resolve custody, those stipulations will not be modified unless there is a sufficient change in circumstances and modification is in the best interests of the child. The Court further provided that the parent seeking the relocation must justify their interest as against the non-custodial parent’s fundamental right to frequent access or visitation.
The factors that must be considered in this type of case include each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and non-custodial parents, the impact of the move on the quantity and quality of the child’s future contact with the non-custodial 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 non-custodial parent and the child through suitable visitation arrangements.
In Mathie, the mother had been residing with Ryan in Long Island during the week to enable visitation by the father. She resided in New Jersey with Ryan during her custodial weekends, and Ryan resided at the father’s home during the father’s custodial weekends. As a result, Ryan had no sense of permanency and was living in three different homes.
The Court determined that the mother had established that the Ryan’s best interest would be served by permitting the relocation, even though the relocation would result in more travel, approximately 60 miles to the father’s home. Ryan would benefit from an extensive family support system in New Jersey, including the mother’s new husband and his children, the mother’s brother-in-law and his children, and the mother’s cousin and her children. Additionally, the mother offered to be responsible for transportation of Ryan to and from the father’s house, causing the father no additional travel burden.
Posted in Custody and Visitation | Comments Off
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Monday, May 3rd, 2010
An annulment is a matrimonial action instituted in the New York State Supreme Court to declare a marriage null and void. Two types of marriages may be subject to an annulment: a void marriage, which is void at its inception and thus never legitimate, and a voidable marriage, which can be voided only by a court judgment. A voidable marriage is void from the date of the judgment of nullity.
The following marriages are void: incestuous; bigamous; and marriages performed by an unauthorized person. An incestuous marriage occurs between an ancestor and a descendant, such as a mother and son, between siblings, or between an uncle and niece or an aunt and nephew. A bigamous marriage occurs when one spouse marries a third person despite the fact that his or her prior spouse is still alive and the marriage has not been dissolved.
The following marriages are voidable: when one or both spouses are under the age of consent, when one or both spouses are mentally incapable of consenting to the marriage, when one or both spouses are physically incapable of consenting to the marriage, and when one or more spouses are coerced into the marriage.
The age of consent to marriage in New York State is eighteen-years-old. For a person under the age of eighteen-years-old to become married, written consent of both of the underage spouse’s parents is required. For a person under the age of sixteen-years-old to marry, parental consent and a judge’s order are necessary. No one under the age of fourteen is permitted to marry. A person under the age of eighteen as well as a parent of the underage spouse and/or the underage spouse’s guardian may seek to have the marriage annulled. It is in the Court’s discretion to grant an annulment due to the spouse’s age, taking into consideration all of the facts and circumstances of the marriage. The right to seek an annulment due to being under the age of consent terminates when the spouse reaches the age of 18.
In an action to determine a marriage voidable due to want of understanding, the Court will determine if the parties were capable of fully understanding the nature of the marital relationship and its consequences. An annulment action for want of understanding may be based upon the mental retardation or mental illness of a spouse. An action brought due to mental illness may be brought by the mentally ill spouse when the illness has been cured, so long as he or she does not continue to cohabit with the spouse, which ratifies the marriage, i.e., makes it valid. The spouse who is not suffering from mental illness may file to have the marriage determined voidable if: the other spouse was mentally ill at the time of the marriage, the non-mentally ill spouse was not aware of the illness, the action was brought as soon as the non-mentally ill spouse learned of the illness and the mental illness is present when the annulment is sought.
A spouse may seek to have a marriage declared voidable when the other is unable to have sexual relations due to an incurable condition (not sterility). An annulment action brought for this cause must be filed within five years after the marriage.
Both parties to a marriage must knowingly consent to the marriage of their own free will. A marriage may be annulled if either party consents to the marriage due to duress, force or fraud. An action for this cause may be brought by a spouse, a parent of a spouse or a relative of a spouse who has an interest in annulling the marriage.
Finally, an annulment may be spouse if one spouse develops an incurable mental illness for five or more years. The mental illness can develop after the marriage.
Posted in Divorce Laws/ Issues | Comments Off
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