Robert G. Smith, PLLC

March 2016 Archives

Vexatious Litigation Rule As Gatekeeper In Parental Access Disputes

Public policy generally mandates free access to the courts.  But a child custody/ visitation litigant may be deemed to forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will. In those cases, when supported by evidence in the record, the Courts may fashion orders requiring a prior written application for permission to sue.   Such an order was the basis for dismissal of a proceeding by the Appellate Division, First Department on March 31, 2016 in Matter of Amaury Alfonso N. v Zaida Iris R.. The father brought a proceeding to "enforce" a child custody order, presumably seeking visitation.   However the father did not appeal from a three year old order requiring prior court permission before instituting any more child custody applications.  That order, which was reaffirmed by the court three years later, had been acknowledged on the record by the father. The Appellate Division, First Department cited Second Department precedent, Matter of Pignataro v Davis, 8 AD3d 487, 489 [2d Dept 2004]; and Sassower v Signorelli, 99 AD2d 358, 359 [2d Dept 1984]).  The Appellate Division panel included two former matrimonial judges, Justices Gische and Gesmer, as well as Justices Tom (P.J.), Sweeny and Manzanet-Daniels.  

The Internet's Challenge To The Divorcing Spouse And Legal Counsel

The digital age has exponentially increased the divorce lawyer's  capacity (and obligation) to gather factual evidence.  We now have social media websites, and various other forms of computer-related research information at our fingertips.  Credit information; litigation records; banking information; and a wealth of additional information about virtually aspect of the life of every witness can now be obtained without the expense of dispatching a team of investigators.  Nearly everyone now has a Facebook page.   Many people Tweet, or post comments and images on web sites.  The lawyer must must master the skills of utilizing social media to know what the evidence against the client will be in the courtroom, and to go on the offensive.

Private School Tuition in Agreement = Child Support In Judgment

Once again Justice Matt Cooper has been affirmed.   In Brown v. Condzal (First Department March 29, 2016) the Appellate Division held that the obligation contained in a settlement agreement incorporated into a divorce judgment to pay private school tuition is enforceable as a "child support" obligation and correctly characterized as such by the trial court. The trial court granted a $56,326.66 money judgment with pre-judgment interest and a $30,000 counsel fee for the wife's attorneys.  Not unlike the recent decision in the Frankel case, where the appellate court held that there are no magic words required to exclude temporary spousal maintenance from the meaning of a prenuptial agreement, the appellate court held that the explicit reference to private school tuition is "child support" under the statute, noting that the parents are permitted by Domestic Relations Law § 240(1-b)(h), to define their respective child support obligations by the terms of their separation agreement, rather than by the court's application of the statutory guidelines. 

The Critical Importance Of Understanding And Respecting The Client's Sentiments And Prerogatives

If you have enjoyed Malcolm Gladwell's writing, and the Power of Habit by the New York Times reporter Charles Duhigg, I heartily recommend Mr. Duhigg's newest work "Smarter Faster Better".   Among other things, the author alludes to something called the "locus of control" to explain studies which show that senior citizens in nursing homes benefit from what he calls "subversive" conduct to question authority and take control of their decision making muscles.  To express their independence, the senior citizens yanked their bureaus from the wall to re arrange the furniture, and traded food in the dining room.  Mr. Duhigg also describes how Marines are trained to cultivate their "locus of control"  to survive in combat instead of following orders literally.  Fascinating stuff.  And no, I do not know Mr. Duhigg. I suspect that sometimes people getting a divorce have a similar ability and need to question the authority of a spouse who has suddenly become a traitor to the marital partnership. I do settle a lot of cases.  But I am also a divorce lawyer who litigates, likes it, and doesn't feel guilty about pursuing excellence in the exercise of that skill.    So I have grown weary of the perjorative judgments from many mental health professionals and those professionals with licenses to practice law who express strong judgments that the divorcing client should only be influenced to go directly from point "A" to point "B" and not be assisted on any other path.   Isn't life a little more complicated than that ?   I for one do not consider myself qualified or authorized to act as an arm chair therapist or spiritual adviser.  It is after all, in the language of the mental health professionals, a primary psycho social stressor.

The importance of a timely divorce

When a New York couple with young children decides to get a divorce, they often take their time in doing so. The intent is to separate while creating as little stress as possible for the kids. However, prolonging a divorce process may actually impact the kids harder than if it occurs in a timely manner. The children may become confused and start to wonder about their own safety and security.

Abuse Of Discretion Cited As Reason To Vacate Contempt Adjudication

Experienced divorce lawyers are all too familiar with the tribal and " Hatfields and McCoys" nature of child custody cases.  The Appellate Division First Department decision in Gottlieb v, Gottlieb (March 24, 2016 ) adds a Shakespearian measure of mercy to a very unfortunate child custody case.  At the age of 28, when the parties' daughter was 2 years old, the husband suffered a debilitating stroke from an undetected brain aneurysm.    Following several weeks in a coma and four brain surgeries the husband emerged partially paralyzed, requiring a wheelchair and residing in a nursing home.   The trial court's contempt penalties of $ 271,217.79 on the husband's parents for an alleged delay in paying the court appointed neutral forensic mental health expert were vacated as an abuse of discretion, because his parents were under no legal or contractual obligation to pay those fees.  The Appellate Division held that the husband's failure to pay the fees from a source  other than an escrow fund from the sale of the marital residence did not meet the definition of frivolous conduct under the Court Rule 130 - 1.1[c].   The Appellate Court also rejected the trial court's conclusion that there would be no visitation trial if an e mail in which the husband reportedly stated that he did not want visitation with his daughter had not been suppressed.  The Appellate Division stated that the fact that the husband thereafter proceeded to trial constituted irrefutable proof to reject the trial court's conclusion.  However, the Appellate Division did affirm the trial court's frivolous conduct characterization of the husband's challenge to a Beth Din arbitration.  The Appellate Division panel included Justices Friedman, Saxe Feinman and Gische.  Justice Manzanet's dissent contains a crisp presentation of the facts.     

Antenuptial Agreement Blocks Temporary Spousal Maintenance

All New York divorce lawyers, like Robert G. Smith, PLLC should take note of today's (March 22, 2016) Anonymous v. Anonymous decision in the Appellate Division First Department, which puts another nail in the coffin of those divorce litigants who seek to challenge the spousal maintenance provisions contained in prenuptial agreements. The waiver contained in the prenuptial agreement did not contain the words "temporary support" or "interim support".  It merely recited that the affianced couple were each "fully capable of being self supporting" and they each "waived any and all claims for spousal support and/or maintenance" both "now and in the future".  That was enough for an Appellate Division panel which included Justices Richter (who recently authored the Gottlieb decision), Andrias and Friedman.  Justice Acosta dissented in a robust argument which highlighted prior precedent which, he argued, was to the contrary.  New York divorce lawyers should take note.  And divorcing clients should expect their New York divorce lawyers to be abreast of this ever developing body of law.             

Father's rights and divorce

When a New York father receives a legal notice regarding child support or visitation, he is advised to take it seriously. In the event that he does not know what to do or what the notice means, he is advised to seek out legal counsel. In addition, it is always better to go to court as opposed to lashing out at a former spouse in an effort to rectify what seems to be an unfair situation.

Advantages of a detailed parenting plan

One of the most difficult aspects of a divorce between New York parents who have young children may be working out arrangements for child custody. The process of putting together a parenting plan might ease some of that difficulty. At the very least, having a detailed plan in place may make the transition less difficult for their children.

Sherri Shepherd ordered to pay child support

New York residents who may be considering conceiving a child through a surrogate may be interested to learn that actress Sherri Shepherd lost her court appeal to stop paying child support on March 2. The actress and her then husband agreed to conceive the child through surrogacy when they were still married; however, she attempted to void the surrogacy contract when they got a divorce shortly after.

A financial planner can be helpful in a high-asset divorce

New York residents who are considering a divorce may want to start by paying a visit to a financial planner. This can make a difference in the types of decisions made in the settlement. People who have not participated in handling the family finances might be in particular need of financial education. It is important that they understand the current state of the family finances as well as how their own finances will change after the marriage ends. They should not share a financial planner with their spouse even if they have done so during their marriage.

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