Our Matrimonial & Family Law lawyers represent clients in contested child custody cases. In those cases, the parents’ mental health is relevant, and the court often appoints a mental health professional to perform a forensic evaluation of the parties and the children to assist the court in determining custody. The neutral forensic evaluator’s report is usually released to counsel, but, for years, courts refused to release the forensic evaluator’s underlying notes, test results and raw data unless the requesting party could show “special circumstances,” such as bias on the part of the forensic evaluator. On behalf of the plaintiff wife, Dolores Gebhardt successfully moved for the release of a forensic evaluator’s entire file without proof of “special circumstances,” arguing that the “special circumstances” test should be abandoned because it prevents the court and counsel from obtaining unquestionably relevant and material information. Dolores persuaded the court to adopt a rebuttable presumption standard in favor of disclosure of a neutral forensic evaluator’s entire file in every case. This groundbreaking decision is the first Westchester County case, and the second in New York State, to so hold.
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 - Legal Name Change
Following a Divorce, Representation of Client in a Legal Name Change
Our lawyers sometimes represent clients on other matters, like legal name change. Here, where the client wanted to legally change her name, Kristen Mackay Pennessi prepared and filed all the required forms and documents necessary to finalize the client's request for a legal name change.
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 – Pendente Lite Support – An Award of Pendente Lite Support & Counsel Fees
Representation of Wife in Successfully Arguing That Husband Pay Pendente Lite Child Support, Maintenance & Wife’s Counsel Fees
Pendente lite applications are an important part of the work of our matrimonial lawyers. Where the husband earned approximately $150,000 and the wife earned approximately $75,000, Kristen Mackay Pennessi argued that the husband pay pendente lite support. The Court ordered the husband to pay $988 per month in pendente lite maintenance and $3,293 per month in pendente lite child support. Kristen was also successful in arguing that the husband, as the monied spouse, be responsible for paying the wife’s counsel fees. The Court awarded the wife $10,000 in counsel fees.
Matrimonial & Family Law – Violation of Pendente Lite Order – Contempt Motion
Holding Husband in Contempt of Court for Violation of Pendente Lite Order on Payments to be made by Husband to or for the Benefit of Wife
During the pendency of a divorce action, the court often issues pendente lite orders directing the payment of the family’s living and other expenses so that the financial status quo can be maintained while the issues are litigated. Seeking compliance with such orders is an important part of the work of Matrimonial & Family Law lawyers. Here, after Dolores Gebhardt had obtained a court order for the benefit of her client, Dolores successfully obtained another order holding the husband in contempt of court and ordering the defendant jailed until he complies with the prior orders. The pendente lite order required the husband to pay temporary support to our client, the plaintiff wife, and for payments for a neutral forensic evaluator and camp for the parties’ child. A subsequent order required the defendant to pay counsel fees to McCarthy Fingar. A third order directed defendant to pay for a neutral forensic accountant to value defendant’s business. At a hearing on Dolores' motion to hold the husband in contempt for willful violation of these orders, Dolores introduced evidence showing that the husband paid support to the wife not from his income but from an overdraft protection line on the parties’ joint bank account. The court gave him no credit for these payments because the wife was jointly responsible for the overdraft debt. The husband also claimed he could not afford to comply with the orders, even though the evidence showed that he was living a luxurious lifestyle at his father’s home and had the use of his father’s cars and country club. The husband testified that his business was about to fold, but presented no evidence to support this claim, although he testified that he was working on two new business ventures. He also testified that, except for the marital residence and the wife’s car, he had no assets in his own name. With these facts, the court found that the husband's failure to comply with the court's order was willful, and sentenced defendant to jail for a period of three months for violating the court orders. The court also decided that jail time would be commuted if the husband makes a variety of payments, including a fine.
One of the most satisfying things our Matrimonial & Family Law lawyers do is to help our clients succeed on child custody issues. Here, Joel M. Aurnou convinced the Appellate Division, Second Department, to unanimously affirm the lower court's decision granting Joel's client permission to relocate to Texas with four small children during a pending matrimonial. Citing "a sound and substantial basis in the record" and relying upon Matter of Tropea v. Tropea (argued by Kathleen Donelli of this firm), the Court unhesitatingly approved these elements of proof: (1) the husband did not make regular support payments, (2) the plaintiff demonstrated she could not meet expenses in New York for that reason, and (3) she would receive financial and child care assistance from, and residence rent-free with, her parents. The Court quoted Tropea as follows: "[E]conomic necessity . . . may present a particularly persuasive ground [for] permitting the proposed move", and so held in affirming in this case.
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 - Downward Modification of Child Support
Representation of Mother in Successfully Opposing Father’s Petition For Downward Modification of Child Support
After divorce or support decrees are finalized, Matrimonial & Family Law lawyers sometimes make or defend against applications for a modification of child support. Kristen Mackay Pennessi successfully opposed the husband’s request for a downward modification of child support. In this case, although the husband was disabled and unable to continue to work as a firefighter, he was still collecting his full salary. Thus, there was no change of circumstances to warrant a reduction in the child support payments.
Matrimonial & Family Law - Enforcement of Child Support – Wrongful Garnishment of Wages – Mistaken Identity
Representation of an Individual In Child Support Matter Regarding Mistaken Identity
Enforcement of child support obligations in matrimonial actions is a common issue after a divorce decree is finalized. Where a payor has not paid child support, a Notice to Withhold Income for Child Support may be issued against the payor. However, where a Notice to Withhold Income for Child Support was wrongly issued against an out of state individual, Kristen Mackay Pennessi was able to successfully resolve the case by proving that the out of state individual had been mistakenly identified as someone else. After resolving the mistaken identity issue, Kristen was able to have the individual’s wages repaid (after they had wrongly been garnished pursuant to the Notice).
Collaborative Divorce - Substantial Support for Wife
In reaching settlements in a Collaborative Divorce, it is important that both sides agree on sensible financial terms. Here, Dolores Gebhardt's client was a homemaker and mother; and the husband was a business development executive. As part of the settlement, Dolores' client received substantial maintenance for 9.5 years and full ownership of the house, and the husband will continue to pay mortgage and taxes until December, 2020.
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.
Pre-hearing discovery disputes are often a subject of decisions by the courts. In Morganti, Joel M. Aurnou’s client was subpoenaed for her financial records by her husband's ex-wife. In the lower court, Joel sought to quash the supboena. The Appellate Division, Second Department, unanimously reversed the lower court and quashed the subpoena, finding that the lower court "improvidently" denied Joel's motion.
Matrimonial & Family Law - Child Support - Under Reporting of Income
Representation of Mother In Favorable Child Support Settlement
An essential part of the work of our Matrimonial & Family Law lawyers is to verify the accuracy of information provided by a spouse and his or her lawyer. Kristen Mackay Pennessi successfully settled a child support issue where the husband had under represented his annual income to the Court by more than $100,000. Through subpoenaed documents from the husband’s employer and bank, Kristen was able to establish the husband’s true income and settle child support at the higher amount.
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.
Collaborative Divorce - Matrimonial & Family Law - Interdisciplinary Team
Collaborative Divorce – Interdisciplinary Team
An important objective of Collaborative Divorce lawyers is to find solutions that satisfy both sides as they seek a divorce on amicable terms. Here, Dolores Gebhardt's client was a homemaker and mother; the husband was an investment banker. The full-team collaborative method involved retention of a neutral financial professional and a divorce coach. The matter settled in which Dolores' client received $1.2 million in equitable distribution.
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.
Legal fees in matrimonial cases are often an important economic issue for both sides. Pickens is a complex case in which, among other things, defendant husband appealed Order Appointing Receiver of marital residence on the ground that the Order empowered the receiver to encumber the property. Defendant husband also appealed the trial court’s award of counsel fees and costs to Dolores Gebhardt's client as a sanction for the defendant making a frivolous motion. Dolores, representing the wife, successfully persuaded the Appellate Division, Second Department, to uphold the lower court determination on appeal.
When matrimonial lawyers settle cases, great skills must be used to insure that a lawyer's client gets the benefit of the negotiated bargain. Even then, there are often disputes over the terms and conditions of settlement agreements. Here, the Appellate Division, Second Department, affirmed a lower court order preventing Joel M. Aurnou’s adversary from obtaining any part of a $1.4 million annuity from a matrimonial settlement dictated on the record in open court.
McCarthy Fingar's lawyers are leaders in the legal community, and our Matrimonial & Family Law lawyers have been strong proponents of no-fault divorce. In fact, Judge Sondra M. Miller was an influential voice in the passage, in 2010, of the new no-fault divorce law. In Molloy, Dolores Gebhardt’s client was denied a divorce on the ground of abandonment. The decision became the basis for Dolores Gebhardt’s article on the law of abandonment entitled, "Justice Abandoned: Forty Years of Stalemate in Actions for Divorce on the Ground of Abandonment" 27 Pace Law Review 605 (2007).
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)
Changes in circumstances sometimes require a change in child custody between the parties. Joel M. Aurnou prevailed at trial and unanimously on appeal in changing custody to the father, where the mother had alienated the children. J.F. v. L.F. is a leading case on parental alienation as a basis for a change of custody.
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.
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.
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.
Some cases simply cannot be settled. In matrimonial cases, the amount of equitable distribution awarded to the parties sometimes cannot be resolved amicably and requires a trial. In Conceicao, Joel M. Aurnou representing a client on an equitable distribution issue, obtained a unanimous affirmance of the trial court’s 70% equitable distribution award in his client's favor.
Matrimonial & Family Law - Private Detective Caught Lying
B v. B
At trials, effective cross examination is often the turning point of the case. Here, Joel M. Aurnou represented the treasurer of a major national corporation in a matrimonial. The private detective was shown by his cross-examination to be lying, and the cause of action for adultery was dismissed during trial. A favorable result for Joel's client followed.