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Representative Cases and Matters for Kathleen Donelli

Matrimonial & Family Law – Child Custody – Appellate Practice - Constructive Emancipation

Mitarotonda v. Mitarotonda, ___ A.D.3d ___ (2d Dep’t 2019)

Our matrimonial lawyers often represent clients on financial issues relating to child custody. Here, Kristen Pennessi & Kathleen Donelli won an appeal in the Appellate Division in which the lower court denied a post-divorce judgment motion, brought by the noncustodial parent (the “father”), to stop paying the custodial parent (our client, the “mother”) child support based on constructive emancipation. Under the doctrine of constructive emancipation, New York courts have held that child support payments may be suspended where the “custodial parent unjustifiably frustrates the noncustodial parent’s right of reasonable access.” Kristen and Kathleen successfully argued that our client, the custodial parent, did not deliberately frustrate or actively interfere with the father’s relationship with his children. Therefore, the court ordered that the father continue to pay child support even though his children refused to have meaningful contact with him.

Matrimonial & Family Law - Pendente Lite Child Support - Imputing Larger Income to Spouse than His Claimed Salary

Representation of Wife in Successfully Imputing $100,000 in income to Husband in Calculating Pendente Lite Child Support

Our matrimonial lawyers often represent clients on contested Pendente Lite applications. Where the husband claimed to earn only $10,000 per year working as the CEO in his family’s company, Kristen Mackay Pennessi & Kathleen Donelli successfully argued that the Court should impute $100,000 in income to the husband for purposes of calculating pendente lite child support.  Specifically, the Court held that, where the family business was paying for most of the husband’s expenses (he was residing at the marital residence in Scarsdale and his statement of net worth showed expenses of more than $10,000 a month), the husband’s account of his own finances was not credible. Thus, the Court found that imputing income in the amount of $100,000 per year for pendente lite child support purposes was reasonable and appropriate. 

Matrimonial & Family Law – Pendente Lite Support – Imputing Larger Income to Spouse Than  Claimed Salary

Representation of Wife in Successfully Imputing Income to Husband For Purposes of Calculating Child Support & Maintenance

Our matrimonial lawyers represent clients on contested Pendente Lite applications. Where the husband dissolved his business and voluntarily stopped working and the wife earned $45,000 per year, Kristen Mackay Pennessi & Kathleen Donelli successfully argued that the Court should impute $150,000 of income to the husband in calculating pendente lite support obligations. Here, the husband had not been paying child support, spousal support or any of the household expenses. The Court ordered the husband to pay pendente lite support in the amount of $5,310 per month, and to make direct monthly payments of  the mortgage, HELOC, real estate taxes and homeowners insurance.

Matrimonial & Family Law - Spouse's Share of Business Interest - Spouse's Contribution to Business

Representation of Husband in Successfully Settling the Marital Portion of Husband’s Partnership Interest

The value and marital portion of a spouse’s business interest are often essential issues in a divorce action. Kristen Mackay Pennessi and Kathleen Donelli successfully argued that the wife was entitled to only 25% of her husband’s partnership interest, if and when he actually receives any monies for his partnership interest. In this case, it was proven that the wife had only negligible and indirect contributions to the husband’s business partnership.

Matrimonial & Family Law - Enforcement of Settlement - Decisions on Religious Upbringing of Children

Representation of Father in Successfully Enforcing Stipulation allowing Father to Make Final decisions on Child’s Religious Upbringing

Our Matrimonial & Family Law lawyers are often retained to enforce a client's rights under a settlement agreement made by the client and his or her ex-spouse. Here, the parties had entered into a stipulation giving the father the final decision making authority on a child’s religious upbringing. Kristen Mackay Pennessi and Kathleen Donelli successfully argued in Family Court that the mother violated the stipulation when she refused to allow the child to attend Bar Mitzvah classes.

Matrimonial & Family Law - Unsupervised Child Visitation - Interim Custody of Children

Representation of Mother in Successfully Opposing Father’s request for Unsupervised Child Visitation & Interim Custody of Children

Our matrimonial lawyers often deal with issues on child visitation and child custody. Here, Kristen Mackay Pennessi & Kathleen Donelli successfully argued that supervised visitation between the father and children should continue. After a hearing, the Court held that based on the credible testimony from the son’s therapist, the testimony from the children’s uncle, prior reports of Child Protective Services and the “rehearsed and forced” testimony of the Father and his witnesses,  supervised visitation between the Father and the children should continue. 

Matrimonial & Family Law – Post Judgment Maintenance Calculation – Forgiveness of Loan is Considered Income For Purposes of Calculating Maintenance

Representation of Wife in Successfully Arguing that Forgiveness of a Loan to Husband is Considered Income When Calculating Maintenance

Our matrimonial lawyers often represent clients post-judgment for purposes of enforcing or modifying support obligations. Where the husband was required to pay the wife maintenance each year based on a calculation of his income, Kristen Mackay Pennessi & Kathleen Donelli successfully argued that where the husband received an unsecured loan from his employer in the amount of over $5 million, the portion of the loan forgiven each year was constitutes income to the husband for purposes of calculating his maintenance obligation.

Matrimonial & Family Law - Spouse's Ability to Earn Income - Psychiatric Examination Ordered

Representation of Husband in Successfully Opposing Wife’s Claim For Spousal Support Because She Was Allegedly Unable To Work

A spouse's ability to find and maintain employment is an important issue in divorce actions. Where the wife claimed that she was entitled to spousal support because she allegedly had a mental condition and was unable to work, Kristen Mackay Pennessi and Kathleen Donelli successfully argued that the wife should be ordered to submit to a mental examination to determine whether she was able to work. Ultimately, no mental condition was found and the wife did not receive spousal support.

Matrimonial & Family Law - Egregious Fault Claim -  Permissible Topics for Deposition

Representation of Husband In Successfully Opposing Wife’s Egregious Fault Claim

Generally, during a deposition in a Matrimonial matter, questions are limited to the finances of the parties. However, Kristen Mackay Pennessi and Kathleen Donelli successfully argued that questions pertaining to alleged abuse were appropriate at the wife’s deposition where egregious fault was at issue.

Matrimonial & Family Law - Opposing Pendente Lite Relief

Representation of Husband In Successfully Opposing Wife’s Order To Show Cause Seeking Pendente Lite Relief

Pendente Lite applications - seeking financial support from the other spouse during the divorce action - is an important tool for Matrimonial & Family Law lawyers. Kristen Mackay Pennessi and Kathleen Donelli successfully opposed the wife’s Order To Show Cause for pendente lite relief.  The wife was awarded zero in pendente lite support and zero in legal fees.

Matrimonial & Family Law - Grandparent Visitation Petition

Representation of Parents in Successfully Opposing a Grandparent Visitation Petition

Matrimonial & Family Law litigation sometimes involves applications for visitation or other relief by grandparents of a minor child. Kristen L. Pennessi and Kathleen Donelli successfully opposed a petition for grandparent visitation where both parents were fit and loving parents and the grandparents had little to no contact with the child.

Matrimonial & Family Law - Appellate Practice - Child Custody

Amari v. Molloy, NYLJ 8/8/00, p. 23, col. 5 (Kings County Sup. Ct. 2000), aff'd, 293 A.D.2d 431 (2d Dep't 2002)

Sometimes, child custody issues cannot be resolved by the parties without a trial. In this case, Kathleen Donelli persuaded the trial court and appellate court to award child custody to her client.

Matrimonial & Family Law - Child Custody - Bifurcation of Custody and Divorce Action

Amari v. Molloy, 180 Misc. 2d 664 (Kings County Sup. Ct. 1999)

Matrimonial cases are often won or lost based upon a trial lawyer's success or failure on procedural issues. In Amari, Kathleen Donelli persuaded the trial court to bifurcate the issues of divorce and child custody.

Matrimonial & Family Law - Appellate Practice - Child Relocation

Frayne v. Frayne, 234 A.D.2d 545 (2d Dep't 1996)

One of the most satisfying things our Matrimonial & Family Law lawyers do is to get a favorable outcome for a client on a child custody issue. Kathleen Donelli won the landmark New York State Court of Appeals decision on child relocation in Tropea v. Tropea, and has frequently lectured on child relocation issues. In a child relocation case, Kathleen successfully persuaded the Appellate Division, Second Deparment, to permit her client, the custodial parent, to relocate.

Matrimonial & Family Law - Appellate Practice - Child Relocation

Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996)

Custody of minor children is sometimes an issue that continues after the parents obtain their divorce and have reached agreement on visitation issues. Sometimes, the custodial parent seeks to change his or her location, and the noncustodial parent cries foul and seeks to prevent or oppose that relocation. In Tropea, Kathleen Donelli prevailed in a child relocation case in New York's highest court, the New York State Court of Appeals. Tropea established the prevailing law in New York on relocation.

Business Litigation - Appellate Practice - Landlord/Tenant Issues

1185 Avenue of the Americas Associates v. The Resolution Trust Corp.

After prevailing in the Federal District Court, Kathleen Donelli successfully convinced the US Court of Appeals, for the Second Circuit, to affirm the District Court's denial of landlord's claim for $7 million in unpaid rent.

Business Litigation - Appellate Practice - Real Estate Easements

Route 22 Associates v. Cipes, 204 A.D.2d 705 (2d Dep't 1994)

Having prevailed in the lower court, Kathleen Donelli persuaded the Appellate Division, Second Department to affirmed the trial court's decision, declaring the validity of an easement.

Business Litigation - Appellate Practice - Real Estate Contract

Jaffer v. Miles, 134 A.D.2d 572 (2d Dep't 1987)

In this case, Kathleen Donelli persuaded the Appellate Division, Second Department to reverse the trial court's denial of summary judgment to seller, finding that the memorandum between the seller and purchaser was not an enforceable contract.