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Post Judgment Relief and Uncontested Divorces

Matrimonial Seminar

New York State Judicial Institute

January 8, 2016

8:30am - 9:30am

 

POST JUDGMENT RELIEF AND UNCONTESTED DIVORCES[1]

 

Faculty:    Hon. Linda Christopher, JSC

                  Hon. Janet Malone, JSC

                  Phyllis Goldberg, Esq.

                  Kathleen Donelli, Esq.          

 

 

            POST JUDGMENT RELIEF

 

  1. A.         STANDARDS FOR MODIFICATION OF CHILD SUPPORT:

 

            Under DRL §236 (B)(7)(d), the following disclaimer must be included in every divorce judgment or child support order:

 

EACH PARTY HAS A RIGHT TO SEEK A MODIFICATION OF THE CHILD SUPPORT ORDER UPON A SHOWING OF: (I) A SUBSTANTIAL CHANGE IN CIRCUMSTANCES; OR (II) THAT THREE YEARS HAVE PASSED SINCE THE ORDER WAS ENTERED, LAST MODIFIED OR ADJUSTED; OR (III) THERE HAS BEEN A CHANGE IN EITHER PARTY'S GROSS INCOME BY FIFTEEN PERCENT OR MORE SINCE THE ORDER WAS ENTERED, LAST MODIFIED, OR ADJUSTED; HOWEVER, IF THE PARTIES HAVE SPECIFICALLY OPTED OUT OF SUBPARAGRAPH (II) OR (III) OF THIS PARAGRAPH IN A VALIDLY EXECUTED AGREEMENT OR STIPULATION, THEN THAT BASIS TO SEEK MODIFICATION DOES NOT APPLY.

 

  1. 1.     Where Child Support Has Been Determined By Court Order or Agreed To in an Opting Out Agreement:

 

                        DRL §236 (B)(9)(b)(2) states:

 

(i)         The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances…

 

(ii)       In addition, unless the parties have specifically opted out of the following provisions in a validly executed agreement or stipulation entered into between the parties, the court may modify an order of child support where:

 

(A)      Three years have passed since the order was entered, last modified or adjusted; or

 

(B)      There has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified or adjusted. A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.(emphasis added)

 

 

  1. Upward Modification of Child Support:

 

            Two different tests exist with regard to upward modification of child support:

 

 Boden v. Boden, 42 N.Y.2d 210 (1977) (requiring a showing of an unanticipated and unreasonable change of circumstances where the children's needs are being adequately met);

 

Brescia v. Fitts, 56 N.Y.2d 132 (1982) (setting forth factors to be considered where the children's needs are not being adequately met).

 

 

  1. 3.     Recoupment of Child Support Generally Not Permitted:

 

            A“strong public policy against restitution or recoupment of support overpayments” exists, and the Child Support Standards Act does not alter that. See Baraby v. Baraby, 250 A.D.2d 201, 205 (3d Dept. 1998) (Former husband was not entitled to recoupment of alleged overpayments of child support, and lower court erred in directing said recoupment).  Compare Breitstein v. Aaronson, 3 A.D.3d 588, 589 (2d Dept. 2004) (Recoupment of overpayment of child support permitted under limited circumstances where father’s overpayment was due to lower court’s improper application of the Child Support Standards Act).

 

                     4.            Child Support Arrears:

 

            Under DRL §244 upon "application the court shall make an order directing the entry of judgment for the amount of arrears of child support together with costs and disbursements" (emphasis added).  For "any other payments so directed" the court shall make an order "unless the defaulting party shows good cause" for not making an application before the arrears accrued.

 

            See Dox v. Tynon, 90 N.Y.2d 166 (1997) (Custodial parent did not implicitly waive her right to outstanding child support payments under divorce decree by delaying, for 11 years, any attempt to enforce support provision of decree, and by assuming responsibility for children's support during this delay, where  former husband never sought prospective downward modification of his child support obligations and never even proffered any explanation for failing to make application prior to accrual of arrears.)

 

 

  1. B.         STANDARDS FOR MODIFICATION OF MAINTENANCE:

 

            There are two different tests for the modification of maintenance, depending on whether the maintenance was awarded by order or judgment of the court, or agreed to by the parties in a separation agreement. DRL § 236(B)(9)(b)(1) outlines these tests.

 

            1.  Court Order: Regarding maintenance awarded by court order, DRL §236(B)(9)(b)(1) states:

Upon application by either party, the court may annul or modify any prior order or judgment as to maintenance, upon a showing of the recipient’s inability to be self-supporting or a substantial change in circumstance or termination of child support awarded pursuant to section two hundred forty of this article, including financial hardship (emphasis added).

 

            2.  Separation Agreement/Stipulation: With regard to maintenance agreed to by the parties in a separation agreement or stipulation, DRL §236(B)(9)(b)(1) states:

 

Where, after the effective date of this part, a separation agreement remains in force no modification of a prior order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the judgment or order as modified shall supersede the terms of the prior agreement and judgment for such period of time and under such circumstances as the court determines (emphasis added).

 

                     See Kaplan v. Kaplan, 130 A.D.3d 576 (2d Dept. 2015) (court properly granted motion for downward modification of maintenance obligation where plaintiff husband demonstrated that continued enforcement of the maintenance obligation as set forth in the parties’ separation agreement would create an “extreme hardship.”)

 

            3. Arrears: DRL §236(B)(9)(b)(1) addresses arrears as follows:

 

The court shall not reduce or annul any arrears of maintenance which have been reduced to final judgment pursuant to section two hundred forty-four of this article. No other arrears of maintenance which have accrued prior to the making of such application shall be subject to modification or annulment unless the defaulting party shows good cause for failure to make application for relief for the judgment or order directing the payment prior to the accrual of such arrears and the facts and circumstances constituting good cause are set forth in a written memorandum of decision (emphasis added).

 

 

  1. C.         STANDARDS FOR MODIFICATION OF CUSTODY:

 

            1. Subsequent change of circumstances warranting modification to protect child’s best interests given review of totality of circumstances:

 

      FCA §652(a) states:

 

Applications to modify judgments and orders of custody may be granted by the family court under this section only upon the showing to the family court that there has been a subsequent change of circumstances and that modification is required. (emphasis added)

 

            Caselaw clarifies that modification is required to protect the child’s best interests given a review of the totality of the circumstances. See  Matter of Lombardi v. Valenti, 120 A.D.3d 817, 818 (2d Dept. 2014) and Matter of Cortez v. Cortez, 111 A.D.3d 717, 717 (2d Dept. 2013) (To warrant modification of an existing court-sanctioned child custody arrangement, there must be a showing of a change in circumstances, such that the modification is required to protect the best interests of the child). The best interests of the child are determined by a review of the totality of the circumstances. See Eschbach v. Eschbach, 56 N.Y.2d 167, 171 (1982).

 

            2. No Automatic Hearing: A parent who seeks a change in custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant a hearing. Teuschler v. Teuschler, 242 A.D.2d 289, 290 (2d Dept. 1997). See also Smoczkiewicz v. Smoczkiewicz, 2 A.D.3d 705, 706 (2d Dept. 2003)(Court properly denied father’s motion to change residential custody without conducting a hearing where father failed to show a change in circumstances which could support a finding that it was in the son’s best interest to change residential custody to the father a mere five months after the stipulation of settlement.)

 

            3. Factors to be considered:

 

                     i. Custody Agreement: “An agreement between the parties is but one factor to be weighed by the court in deciding whether a change of custody is warranted.” Eschbach v. Eschbach, 56 N.Y.2d 167, 171 (1982).

 

                     ii. Parental Fitness: Courts may consider, for example, the mental health of a parent (Landau v. Landau, 214 A.D.2d 541 (2d Dept. 1995), the parent’s physical health (Hatz v. Hatz, 97 A.D.2d 629 (3d Dept. 1982), whether a parent has a substance abuse problem (Fish v. Fish, 112 A.D.3d 1161 (3d Dept. 2013)(Mary M. v. Albert J. M., 154 A.D.2d 354 (2d Dept. 1989), the neglect or abuse of the subject child or other children (Matter of Amber VV, 19 A.D.3d 767 (3d Dept. 2005), exposure of a child to domestic violence (Wissink v. Wissink, 301 A.D.2d 36 (2d Dept. 2002).

 

        iii.  Primary Caregiver: “[G]iven her role as the primary care provider and her availability to the children, custody was properly awarded to the wife. ”  Carr v. Carr, 171 A.D.2d 776, 777 (2d Dept. 1991)

 

                    iv.  Psychological Parent: The court may examine the quality of interaction between a parent and child; to whom does the child look for comfort guidance and assistance. This factor is best assessed by a mental health professional such as the forensic evaluator.

 

                     v.  Child’s preference: A child’s preference to live with one or the other parent is given greater weight as the child grows older. See e.g. Burke v. Cogan, 122 A.D.3dd 625 (2d Dept. 2014) (Mother demonstrated sufficient change in circumstances to warrant modification of prior custody arrangement with her having sole residential custody where child’s relationship with father deteriorated since issuance of prior custody order and mother exhibited greater sensitivity to child’s emotional and psychological needs, and the child, who was 13, preferred to reside with mother.) See also E.V. v. R.V., 130 A.D.3d 920 (2d Dept. 2015) (Given “the pace of psychological development of the child whose best interest is the primary concern,” father’s petition for modification of custody was improperly granted where the court failed to conduct an in camera examination of the child, relied on a forensic report that was more than 2 ½ years old, conducted a hearing over 44 nonconsecutive days, and delayed issuing the order after the hearing.)(citations omitted).

 

                     vi. Stability: “Priority in custody disputes should usually be given to the parent who was first awarded custody by the court or by voluntary agreement because of the stability it assures in the child’s life.” Lobo v. Muttee, 196 A.D.2d 585, 587 (2d Dept. 1993).

 

                      vii. Home Environment: Primary among those circumstances to be considered is the quality of the home environment and the parental guidance the custodial parent provides for the child.” Eschbach at 172.

 

                     viii. Parental Interference: Where the father established that there had been a sufficient change in circumstances by demonstrating, among other things, that the mother had interfered with his relationship with the child, the Family Court considered the totality of the circumstances, and determined that a modification in the custody arrangement was in the child's best interests. See Preciado v. Ireland, 125 A.D.3d 662 (2d Dept. 2015).

 

                     ix. Siblings: “. . . it is often in the child’s best interests to continue to live with his siblings.” Eschbach at 173. 

 

 


 

  1. D.         RELOCATION: BASED ON THE CHILD’S BEST INTERESTS:

 

            Where a custodial parent requests to relocate the child, “it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests.” Tropea v. Tropea, 87 N.Y.2d 727, 741 (1996).

 

 

  1. E.         MOTION TO VACATE SEPARATION AGREEMENT/STIPULATION:

 

            DRL §236 (B) (3): Agreement of the parties, cited in relevant part, states:

 

An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded…..Such an agreement may include . . .  (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment. . .  (emphasis added)

 

            Review of separation agreements is to be exercised sparingly, with the goal of encouraging parties to settle their differences by themselves. Petracca v. Petracca, 101 A.D.3d 695 (2d Dept. 2012), citing Christian v. Christian, 42 N.Y.2d 63, 71–72 (1977). See Oberstein v. Oberstein, 93 A.D.2d 374 (1st Dept. 1983)(where defendant wife alleged in broad and general terms that maintenance and support provisions of separation agreement were inherently unfair, unjust, inequitable, and inadequate, her conclusory claims lacked particularity sufficient to warrant modification or vacatur of those provisions of separation agreement, precluding examination of plaintiff husband’s finances.)   

 

 

  1. F.          ENFORCEMENT:

 

Under DRL §243, the court "may direct the spouse from whom maintenance or support is sought to give reasonable security …may cause his or her personal property and the rents and profits of his or her real property to be sequestered and may appoint a receiver thereof … ."

 

Under DRL §244, the court "shall make an order directing the entry of judgment" for child support arrears … .  The court "shall" make an order directing the entry of judgment for the amount of arrears of any other payments … "unless the defaulting party shows good cause for failure to make application" to the court prior to the "accrual of such arrears."

 

Under DRL §244-a, Payee may amend papers to include additional arrears.

 

Under DRL §244-b, court may suspend driver's license.

 

Under DRL §244-c, court may suspend state professional, occupational and business licenses.

 

Under DRL §244-d, court may suspend recreational license.

 

Under DRL §245, where spouse defaults in paying any sum of money as required by the judgment or order directing the payment thereof, the aggrieved spouse may make application to the court to punish the defaulting spouse for contempt.

 

Under DRL §246, persons financially unable to comply with orders or judgments directing the payment of alimony may assert financial inability to comply.

 

Under DRL §244-d, maintenance payments suspended during confinement in prison.

 

  1. 1.     Legal Fees:

 

                     i. Contractual: Where ex-husband violated judgment of divorce by failing to pay child support and maintenance pursuant to separation agreement, court properly awarded counsel fees to plaintiff ex-wife where separation agreement expressly entitled a prevailing party in an enforcement proceeding to an award of such fees. See Milark v. Meigher, 56 A.D.3d 1018 (3d Dept. 2008).

 

                     ii. DRL § 238: Expenses in enforcement and modification proceedings (often used for post-judgment matters), states:

 

In any action or proceedings to enforce or modify any provision of a judgment or order entered in an action for divorce, separation, . . . the court may in its discretion require either party to pay counsel fees and fees and expenses of experts directly to the attorney of the other party to enable the other party to carry on or defend the action or proceeding as, in the court’s discretion, justice requires having regard to the circumstances of the case and of the respective parties.  There shall be a rebuttal presumption that counsel fees shall be awarded to the less monied spouse. (emphasis added) 

 

 

                     iii. DRL § 237 (b): Counsel fees and expenditures (often used for pendente lite awards during the initial action), states:

 

Upon application to enforce, annul or modify an order of judgment for alimony, maintenance, distributive award, distribution of marital property or for custody, visitation, or maintenance of a child…the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be a rebuttal presumption that counsel fees shall be awarded to the less monied spouse. (emphasis added)

 

            See DeCabrera v. Cabrera-Rosette, 70 N.Y.2d 879 (1987) (trial court properly awarded counsel fees of $10,000 to plaintiff wife without requiring showing that wife was in need); Morrissey v. Morrissey, 259 A.D.2d 472, 473 (2d Dept. 1999).

 

            Where there is a marked disparity in the respective party’s incomes, an award of counsel fees is warranted.  Litvak v. Litvak, 63 A.D.3d 691 (2d Dept. 2009); Bogannam v. Bogannam, 60 A.D.3d 985 (2d Dept. 2009). Indeed, there is a “rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” DRL §237(b). See Prichep v. Prichep, 52 A.D.3d 61, 64, (2d Dept. 2008)(Where there was “no serious dispute that the husband’s financial resources far exceed[ed] those of the wife,” the court erred in denying interim counsel fees); see also, Gober v. Gober, 282 A.D.2d 392,392-393 (1st Dept. 2001) (Wife entitled to interim counsel fees where her assets [were] confined to her monthly maintenance, while her husband’s wealth [was] in the millions and his assets continu[ed] to amass.)

 

            The fact that the distribution of marital property resulted in a substantial award to the spouse with less income, does not preclude the award of counsel fees to that spouse. See McCracken v. McCracken, 12 A.D.3d 1201 (4th Dept. 2004); Hackett v. Hackett, 147 A.D.2d 611 (2d Dept. 1989)

 

            In making its determination, the court may consider the nature of the services rendered, the complexity of the issues involved, and the time actually spent on the matter. See Silver v. Silver, 63 A.D.2d 1017 (2d Dept. 1978).

 

            Other factors that may be considered: fees properly awarded where one party’s bad behavior/dilatory and obstructionist tactics prolonged litigation. See e.g. Morrissey v. Morrissey, 259 A.D.2d 472, 473 (2d Dept. 1999) (Counsel fees properly awarded to plaintiff where defendant was guilty of “stonewalling” conduct which resulted in unnecessary litigation); Timpone v. Timpone, 28 A.D.3d 646 (2d Dept. 2006) (Where delay in the discovery process was attributable to the defendant, an award of an attorney’s fee to the plaintiff was appropriate); Wilson v. Wilson, ---A.D.3d --- (4th Dept. 2015) (court did not abuse its discretion in declining to award defendant counsel and expert fees and costs for moving and storage given that instant post-judgment divorce proceeding was result of her obstructionist conduct.

 

iv.  22 NYCRR § 130-1.1(c): Sanctions/Costs:  A court has the power to award expenses and counsel fees to any party or to an attorney that result from frivolous conduct.  The Rules of the Chief Administrator, 22 NYCRR §130-1.1 (c) provides in relevant part:

 

(c)        For purposes of this Part, conduct is frivolous if:

(1)    it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

 

(2)       it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

 

(3)       it asserts material factual statements that are false.

 

22 NYCRR §130-1.1 (c) further clarifies as follows:

 

In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.

 

                     Courts have consistently awarded parties costs, consisting of attorney and expert fees, without a hearing, where a party's conduct is determined to be frivolous under 22 NYCRR §130-1.1(c). See Levine v. Levine, 111 A.D.3d 898 (2d Dept. 2013); Harris v. Kind, 1 A.D.3d 138 (1st Dept. 2003).

 

  1. 2.          Contempt:

 

                         i.    Civil: vindicates the rights of a private party to litigation:

 

            “The element of prejudice to a party’s rights is essential to civil contempt, which aims to vindicate the rights of a private party to litigation . . . “ El-Dehdan v. El-Dehdan, 114 A.D.3d 4, 11 (2d Dept. 2013). Judiciary Law § 753[A][3] , cited in pertinent part, outlines judicial authority to punish for civil contempt as follows:

 

 A court of record has the power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which right a remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases:  . . . 3.  A party to the action . . . for the non-payment of a sum of money, ordered or adjudged by the court to be paid. . . ; or for any other disobedience to a lawful mandate of the court.

 

            The Second Department has held that “the three elements of civil contempt are ‘(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct.’” (citations omitted) El-Dehdan v. El-Dehdan, 144 A.D.3d 4, 14 (2d Dept. 2013). See also McCormick v. Axelrod,  59 N.Y.2d 574 (1983).

 

            The burden is initially on the movant, who must establish a knowing failure to comply with a clear and unequivocal mandate, by clear and convincing evidence. El-Dehdan at 10. Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant’s showing, or to offer evidence of a defense, such as an inability to comply with the order. Id. at 17.

 

            Generally, a movant must first exhaust other, less drastic enforcement mechanisms, before commencing civil contempt proceedings. Id. at 22. DRL § 245, cited in pertinent part, states as follows:

 

Where a spouse. . . makes default in paying any sum of money as required by the judgment or order directing the payment thereof, and it appears presumptively, to the satisfaction of the court, that payment cannot be enforced . . . the aggrieved spouse may make application pursuant to the provisions of section seven hundred fifty-six of the judiciary law to punish the defaulting spouse for contempt. . .

 

            Although the exhaustion precondition is discussed most often in case law involving the nonpayment of maintenance or child support, it has also been applied in cases involving the nonpayment of other sums.  El-Dehdan at 23 (citations omitted).

 

ii. Criminal: vindicates the authority of the court; additional element of willfulness required:

 

            “The element of prejudice to a party’s rights is essential to civil contempt . . . but not criminal contempt, which aims to vindicate the authority of the court. El-Dehdan v. El-Dehdan, 114 A.D.3d 4, 11 (2d Dept. 2013).  Judiciary Law § 750[A][3],[4], cited in pertinent part, outlines judicial authority to punish for criminal contempt as follows:

 

A court of record has the power to punish for a criminal contempt, a person guilty of any of the following acts, and no others: . . . . .

3. Willful disobedience to its lawful mandate.

4. Resistance willfully offered to its lawful mandate.

 

            In  McCormick v. Axelrod,  59 N.Y.2d 574 (1983), the Court of Appeals stated that, “[a]lthough the line between the two types of contempt may be difficult to draw, in a given case, and the same act may be punishable as both a civil and a criminal contempt, the element which escalates a contempt to criminal status is the level of willfulness associated with the conduct.” (emphasis added)(citations omitted).                      

 

                     iii.  Hearing: when required

 

            For civil contempt, “[a] hearing is required only if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense.” El-Dehdan at 17. Generally, “conclusory, baseless, and self-serving allegations [are] insufficient to raise an issue of fact necessitating a hearing”on a contempt motion. Jaffe v. Jaffe, 44 A.D.3d 825, 826 (2d Dept. 2007).

 

            For criminal contempt, the additional element of willfulness “requires a determination beyond a reasonable doubt rather than to a reasonable certainty,” (DPHD v. Gottlieb, 136 Misc. 2d 370, 375 (Hous Part Civ Ct N.Y. County 1987). A criminal contempt case is “equivalent to a criminal case,” and the accused has “a right to be heard after notice and the full panoply of criminal procedural rights.” Id. Since there is “the potential loss of liberty . . . the application of these basic principals [sic] requires that at the very least a trial be held in criminal contempt proceedings where . . . the respondent has interposed a defense through counsel.” Id. (citations omitted).

 

  1. 3.          Civil Enforcement Officer:

 

            Courts can direct a sheriff to execute a contract of sale and deed, and may even order a sheriff to physically remove a party from the residence. See Dobransky v. Dobransky, 89 A.D.2d 614 (2d Dept. 1982). (Where plaintiff failed to cooperate in any manner in efforts to sell the marital residence, plaintiff was adjudged in contempt for her willful refusal to comply with the marital home sale provision of the judgment of divorce, orders were entered directing the sheriff to execute a contract of sale and deed in plaintiff's behalf if the marital home was sold for not less than $75,000 and, finally, the sheriff was directed to physically remove plaintiff from the marital residence.)

 

  1. 4.          Receiver:  DRL §234, cited in pertinent part, states as follows:

 

…the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court’s discretion justice requires having regard to the circumstances of the case and of the respective parties. Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment.

 

            See Stern v. Stern, 282 A.D.2d 667 (2d Dept. 2001) (receiver and bank fees were properly deducted from husband’s share of proceeds from sale of marital residence where appointment of receiver was necessitated by husband’s obstruction and delaying tactics.)

 

  1. 5.          Qualified Domestic Relations Order (QDRO)

 

            It is well established that pension benefits, including vested rights in a noncontributory pension plan, are marital property to the extent that they were acquired between the date of the marriage and the commencement of a matrimonial action, even though the rights are unmatured at the time the action has begun. Majauskas v. Majauskas, 61 N.Y.2d 481, 485-486 (1984). Pursuant to DRL §236 B, the matrimonial court “may order distribution to one spouse of an equitable portion of that part of the present value of the other spouse’s pension rights earned during marriage, or may provide that upon maturity of the pension rights the recipient pay a portion of each payment received to his or her former spouse or may . . . order a distributive award in lieu of equitable distribution.” Id. at 486.

 

            When the distribution of pension benefits between former spouses is accomplished through a QDRO obtained pursuant to a stipulation, such QDRO ‘can convey only those rights to which the parties stipulated as a basis for the judgment.’ Kraus v. Kraus, 131 A.D.3d 94 (2d Dept. 2015) (citations omitted). Consequently, where the former wife was entitled to a portion of the former husband’s pension benefits, pursuant to a stipulation agreement, but she failed to submit a QDRO to the plan administrator prior to the former husband’s taking a loan against the pension which reduced the monthly payout, the former wife’s Majauskas share may not be reduced by virtue of the loan and she was entitled to arrears. Id. at 107. However, since the stipulation did not contain any provision regarding the husband’s right to elect a survivorship benefit in favor of his second wife and the effect that might have on the value of the pension, the former wife was not entitled to a recalculation of the former husband’s pension benefits so as to negate that survivorship benefit bestowed on the second wife by the former husband. Id. at 106-107.

 

             6.  Termination of Maintenance due to Cohabitation:

 

 Effective until January 23, 2016, DRL §248[2] states, in pertinent part, as follows:

 

The court in its discretion upon application of the husband on notice, upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man, may modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders or of both, directing payment of money for the support of such wife. (emphasis added)

 

            See Graev v. Graev, 11 N.Y.3d 262 (2008) (undefined term “cohabitation” in settlement agreement’s maintenance obligation provision was ambiguous, and therefore insufficient to terminate maintenance obligation.); Markhoff v. Markhoff, 225 A.D.2d 100 (3d Dept. 1996) (maintenance properly terminated where it was demonstrated that former wife was habitually living with another man).

 

  1. G.        Challenges to Paternity: 

 

            DRL §24 and FCA § 417 codify the common law presumption of legitimacy that a child born of a marriage was fathered by the husband, and further establish that a child born before or after the marriage shall be deemed to be the legitimate child of the married couple whether or not the marriage was valid. Matter of Q.M. v. B.C., 46 Misc. 3d 594, 598 (Fam. Ct. Monroe Cty. 2014)(citations omitted). Frequently used to “prevent recalcitrant husbands or former husbands from avoiding their responsibilities to support children born to their wives or former wives,” the presumption of legitimacy “may be rebutted by clear and convincing proof of lack of access by the husband or other evidence excluding the husband as the father of the child.  Id. (citations omitted). In Matter of Q.M. v. B.C., the court held that the presumption may not be used to preclude a biological father from pursuing a paternity proceeding, when asserted by the spouse in a same-sex marriage. Id. at 595.

 

            The doctrine of equitable estoppel frequently defeats challenges to paternity. “A man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity.” See Matter of Shondel J. v. Mark D., 7 N.Y.3d 320, 327 (2006). “The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship.” [internal quotation marks and citation omitted]. Matter of Juanita A. v. Kenneth Mark N., 15 N.Y.3d 1, 5 (2010). The paramount concern in such cases “has been and continues to be the best interests of the child” Matter of  Shondel J. v. Mark D., 7 N.Y.3d 320, 327 (2006). See Luis Hugo O. v. Paola O., 129 A.D.3d 976 (2d Dept. 2015) (it was in best interests of child to equitably estop the father from denying paternity where evidence established that, up to the time of the hearing, there had been a recognized and operative parent-child relationship between the petitioner and the child in existence all of the child’s life, despite the fact that petitioner was not the child’s biological father, and she knew that.)

 

 


[1] The materials for this outline were prepared by Kathleen Donelli, Esq. and her associate, Kathryn Browne, Esq.

[2] Effective January 23, 2016, DRL § 248 has been amended to be gender neutral, i.e., "wife" has been replaced by "payee."