"THE ABCs OF MATRIMONIAL LAW"
Pace University Law School
Pace Women’s Justice Center
The Ninth Judicial District Committee to Promote
Gender Fairness in the Courts
The Westchester Women’s Bar Association
Dolores Gebhardt, Esq.
McCarthy Fingar LLP
11 Martine Avenue
White Plains, New York 10606
June 21, 2012
Table of Contents
INITIAL CLIENT INTERVIEW……………………………………………… 2
JURISDICTION ...................................................................................... 3
Grounds ............................................................................................. 5
Custody and PARENTAL ACCESS.................................................. 6
Child Support ................................................................................... 13
Equitable Distribution ................................................................. 16
Maintenance ...................................................................................... 22
COUNSEL FEES …………………………………………………………….. 25
I. INITIAL CLIENT MEETING
1. Client Information Sheet
2. Statement of Client's Rights and Responsibilities
3. Client's Immediate Concerns:
a) domestic violence
b) temporary custody
c) pendente lite support
d) exclusive occupancy
e) minimizing risks: credit cards, lines of credit, safeguarding personal property and important documents (e.g., financial, passports, diaries, computer e-mails)
f) insurance: health, life, homeowners, car
4. Preliminary Conference Requirements
a) Documents - 22 NYCRR 202.16(f)
b) Statement of Net Worth
ü education - date of degrees and licenses
ü health - spouses and children's special needs: juvenile diabetes; past and future operations; physical handicaps; learning disabilities
ü expense is for marital residence, temporary residence, vacation residence, anticipated future residence after divorce
ü anticipated expenses after divorce (e.g. Wife's health insurance)
ü past expenses that are currently unaffordable (clothing, tutors, gym, vacations, recreation, gifts)
5. Explain Alternatives to Court-Based Litigation:
Mediation, Collaborative Law
6. Settlement Agreement v. Litigated Divorce Judgment
"Best" and "Worst" Case Scenarios
7. Retainer Agreement
1. Supreme Court DRL §240
Jurisdiction over matrimonial actions, which include: actions for separation, annulment, or dissolution of marriage, divorce, declaration of the validity of a foreign judgment of divorce, and declaration of the validity or nullity of a marriage.
2. Family Court FCA §651
Family Court has ancillary jurisdiction in Article 4 child support, Article 8 family offense and custody, except when prior "matrimonial actions" are pending.
Paternity actions and adoption proceedings in Westchester County must be brought in Family Court. A divorce action cannot be brought in Family Court.
3. Subject Matter Jurisdiction DRL §75
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
4. Concurrent Jurisdiction
The Supreme and Family Courts both have jurisdiction over issues of child support and maintenance. However, once a divorce action is commenced in Supreme Court, a subsequent action for custody or support cannot be brought in Family Court while the divorce action is pending in Supreme Court.
5. Referral Jurisdiction
If a divorce action is commenced in Supreme Court after the commencement of a support proceeding in Family Court, the Supreme Court has the power to remove the prior Family Court proceeding to Supreme Court.
The Supreme Court may refer an issue of support or may exercise its jurisdiction over support even where the Family Court has previously issued an Order. In such a situation, the Family Court's Order terminates when the Supreme Court makes an order of support, unless the Supreme Court decides to continue the Family Court's order.
6. Integrated Domestic Violence Court ("IDVC")
This court is designed to allow one judge to hear all the legal issues, criminal - family court - matrimonial, that may arise when domestic violence occurs.
When a criminal case is pending in the Domestic Violence part of Supreme Court, the justice presiding in that part will transfer designated Family Court cases to the IDVC. The integrated court will handle petitions for: custody, visitation, paternity and family offenses. The court will also assume jurisdiction over a petition for support; although the support issue will still be heard initially by a Hearing Examiner. Any objections to the Hearing Examiner's determination will be filed with and determined by the justice presiding in the IDVC.
7. Residency Requirements: DRL §230
Either party has been a resident for a continuous period of at least one (1) year preceding the date of commencement (“DOC”) and the parties:
1) were married in New York; or
2) have resided in New York as Husband and Wife; or
3) cause of action occurred in New York; or
4) cause of action occurred in New York and both parties are New York residents at the DOC; or
5) either party has been a resident for a continuous period of at least two (2) years preceding the DOC.
8. Connecticut or New Jersey: Consider if issues may involve licenses or degrees, separate property.
At last…we have No Fault Divorce in New York! To be granted a divorce on the ground of irretrievable breakdown of the marriage, all the plaintiff has to do is state under oath that the relationship between the parties has irretrievably broken down for a period of at least six months. A verified complaint is a “statement under oath.” However, no divorce can be granted “unless and until” all the other issues (e.g., custody, support, equitable distribution) have been resolved.
Archibald v. Archibald, 15 A.D.2d 431, 791 N.Y.S.2d 565 (2d Dep't 2005)(2005 WL 357894)(2005 N.Y. Slip Op. 01142)(Feb 14, 2005):
Cruel and Inhuman Treatment - Adverse Impact on Physical or Mental Well-Being
To be granted a divorce on ground of cruel and inhuman treatment, plaintiff must show that defendant engaged in conduct "which so endangers the physical or mental well being of the plaintiff as renders it insafe or improper for the plaintiff to cohabit with the defendant'". DRL §170. Marriages of long duration require a higher degree of proof. See, Davey v. Davey, 293 A.D.2d 444, 445; Biegeleisen v. Biegeleisen, 253 A.D.2d 474, 475.
Fotiadis v. Fotiadis, 18 A.D.3d 699, 795 N.Y.S.2d 729 (2d Dep't 2005)(2005 WL 1220727)(2005 N.Y. Slip Op. 04182)(May 23, 2005):
Plaintiff's claim of actual abandonment was insufficient because it occurred less than one year prior to commencement of action. See, Genovese v. Genovese, 261 A.D.2d 437; Emanuele v. Emanuele, 218 A.D.2d 726.
Archibald v. Archibald, 15 A.D.3d 431, 791 N.Y.S.2d 565 (Second Dept. 2005)(2005 WL 357894)(2005 N.Y. Slip Op. 01152)(Feb 14, 2005):
To be granted a divorce on the ground of constructive abandonment, a spouse claiming to have been constructively abandoned by other spouse must prove that the abandoning spouse unjustifiably refused to fulfill basic obligations of marriage and the abaondonment continued for at least one year. See, Lyons v. Lyons, 187 A.D.2d 415,416; Biegeleisen v. Biegeleisen, supra at 475; George m. v. Mary Ann M., 171 A.D.2d 651, 651-652; Caprise v. Caprise, 143 A.D.2d 968, 970. Refusal must be unjustified, willful and continue despite repeated requests. See, Lyons v. Lyons, supra at 416. "Where there is no proof that one spouse repeatedly requested a resumption of sexual relations, evidence that the other spouse reused a single request to engage in sexual relations is insufficient to sustain a cause of action for a divorce on the ground of constructive abandonment (see Caprise v. Caprise, supra at 970)."
Rosenzweig v. Singer, 18 A.D.3d 853, 795 N.Y.S.2d 471 (Second Dept. 2005)(2005 WL 1278782)(2005 N.Y. Slip Op. 04403)(May 31, 2005):
Separation Agreement - Substantial Performance of Obligations
Plaintiff made prima facie showing of substantial compliance with the terms of the parties' separation agreement to be entitled to judgment as a matter of law pursuant to DRL §170(6) and defendant failed to create inference of fraud, fraud, duress, overreaching or unconscionability. See, Christian v. Christian, 42 N.Y.2d 63; Strangolagalli v. Strangolagalli, 295 A.D.2d 338; Kammerer v. Kammerer, 278 A.D.2d 282; Warren v. Rabinowitz, 228 A.D.2d 492.
IV. CUSTODY AND PARENTAL ACCESS
Custody- parent's supervisory relationship with children
Physical/Residential Custody- the right of a parent to reside with their child
Legal Custody- the right of a parent to make decision's for their child
Visitation/Access/Parenting Time- the right of a parent to spend time with their child
Sole Custody- one parent enjoys the right to reside with and make decisions for their child
Joint/Shared Custody- both parents share legal and or physical custody
Split Custody- dividing residential custody of siblings between parents
Spheres of Decision Making- the right of each parent to exercise sole and final decision-making authority in specific discreet areas of decision-making
Married parents share legal and physical custody as of right (DRL 81). When a biological father and biological mother marry after the child's birth, the child becomes the legitimate child of the now-married parents (DRL 24). The State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances. If any of such extraordinary circumstances are present, the disposition of custody is influenced or controlled by what is in the best interest of the child. Bennet v. Jeffreys, 40 NY2d 543 (1976).
A. Parental Fitness
Mental health - Although the defendant mother has a character disorder, and has tended toward emotional flare-ups in the past, these flagrant shortcomings in her nature do not make her too unstable to [*891] care for the child. Testimony adduced at the trial revealed that the infant was well cared for while in her custody. In view of the wealth of testimony adduced at the trial, and the extensive examination into the qualifications and background of each parent, full consideration was given to "whether the mother is an adequate parent, in capacity, motivation, and efficacious planning". Gorra v. Gorra 54 AD2d 890 (2d Dept 1976).The Court did not eff in requiring the mother undergo psychotherapy part of any expanded or overnight visitation. Landau v. Landau, 214 AD2d 541 (24 Dept 1995),
Physical health - Despite mother's paraplegia resulting from a car accident, the court determined it was in the best interests of the child to remain with her mother. Hatz v. Hatz, 97 AD2d 629 (3d Dept 1982).
Substance abuse - The court took notice of father's alcohol dependency problem despite its recognition that he was a loving parent and custody was awarded to mother MM M v. Albert JM, 154 AD2d 354 (2d Dept 1989)
Neglect or abuse of subject or other children such as lack of supervision, excessive school absences, excessive corporal punishment, etc. FCA Art 10. The requisite "extraordinary circumstances" existed to justify depriving the father of custody of his son based on his sexual abuse of said child. The Court awarded custody to a non-biological parent. Parliament v. Harris, 697 NYS2d 694 (1999). However, false allegations may be viewed as interference with the parent/child relationship warranting a custody award to the other parent Turner v. Turner, 260 AD2d 953 (3d Dept 1999) -
Abuse of spouse - DRL 240 (1) requires an allegation in a sworn pleading proven by a preponderance of the evidence JD v. ND, 170 Misc2d 877 (Fam Ct West Co 1996) and ER v. GBR, 648 NYS.2d 257 (Fam Ct West Co 1996). The presence of a child during domestic abuse often warrants the denial of custody to an abuser. In any action concerning custody or visitation where domestic violence is alleged, the court must consider the effects of such domestic violence upon the best interests of the child. Wissink v. Wissink, 749 NYS2d 550 (2d Dep't 2002). The court held that domestic violence committed in the presence of the children was sufficient to establish neglect per se In Re Lonnell J., N.Y.L.J. May 21, 1998, p. 25, col. 3 (Vt Dep't 1999). The courts determined that a change in circumstances warranting a custody modification was shown when the children were repeatedly exposed to domestic violence against their mother by her new husband. Bishop vs. Livingston, 475 N.Y.S.2d 588 (3rd Dep't 2002). Although the court-ordered clinical evaluator and the law guardian recommended awarding custody of the children to the father, the court's analysis of the impact of the father's domestic violence on the mother resulted in the court granting custody to the mother ER- v. GBR, 649 NYS2d 257 (Fam. Ct West Co 1996).
B. Primary Caregiver
Parent who had primary responsibility for the day-to-day care of their child. This factor acknowledges an implied pre-divorce de facto agreement between the parties as to the parties' respective child rearing responsibilities. Carr v. Carr, 171 Ad2d 776 (2d Dept 1991). Practice tip: argue on behalf of the primary care taking parent that this division of responsibilities constitutes evidence that the other spouse considers the primary care-taking spouse fit.
C. Psychological Parent
Examines the quality of interaction between a parent and child; who the--child looks to for comfort, guidance and assistance; the parent with, whom the child is most bonded. This factor is best assessed by a mental health professional such as the forensic evaluator.
D. Child's Preference
This factor is not determinative, but is accorded weight see Eschbach; with the amount of weight depending on the child's age, maturity, the potential for pressure exerted by a parent upon the child's stated preference see Spetter v. Spetter, 133 Ad2d 750 (2d Dept 1997); Clara L v. Paul M., 251 AD2d 22 (1' Dept 1998) and the reason for the preference McCrocklin v. McCrocklin, 77 AD2d 624 (2d Dept 1990). Generally, courts will give great weight to wishes of an older child (13 -17 years), Bergson v. Bergson, 414 NYS2d 593 (1979) The law guardian or forensic evaluator can present the child's preference. Also, the child may be interviewed in camera see Lincoln v. Lincoln NY2d 270, 24 (1969) where the court recognized that interviewing a child, who is the subject of custody litigation, in private and out of the presence of the parties and their counsel, will limit the psychological danger to the child and will also be far more informative than the traditional procedure of the adversary system.
Because there is a preference for stability in the lives of children, the Court will give weight to the informal physical custodial arrangement of already physically separated parents see Lobo v. Muttee, 196 Ad2d 585 (2d Dept 1993). This factor is of primary importance in modification of custody proceedings. Practice note: this is a factor in advising clients seeking custody to remain in the marital residence.
F. Home Environment
The relative quality of the homes and the care-taking plans of each parent; including physical safety and adequate space see Lyons v. Lyons, 112 AD2d 232 (2d Dept 1985), inappropriate relationship between parent and paramour or parent's paramour and child; financial fitness Welman v. Dutch, 198 AD2d 791 (4h Dept 1993); employment history see Lukaszewicz v. Lukaszewicz, 256 AD2d 1031 (3d Dept 1999) and child care arrangements see Del Pgpa v. Del Papa, 172 AD2d 799 (2d Dep't 1991).
G. Parental Interference
Any interference in the parent/child relationship is so inconsistent with the best interests of the child, that it raises fitness issues regarding the interfering parent see Young v. Young, 212 AD2d 114 (2d Dept 1995). Parental Alienation Syndrome does not meet the Frye test of being a generally accepted scientific theory, see People v. Fortin, 289 AD2d 11590 (2d Dept 2001). The court changed custody and ordered supervised visitation for the father upon discovering during an in camera interview that the children, who had been living with that father, viewed the mother as "the enemy". Zafran v. Zafran, 745 NYS2d 587 (3rd Dep't 2002)
Courts have overwhelmingly strong policy for keeping siblings together to promote familial bonds. Eschbach v. Eschbach, 56 NY2d 167 (1982). However, the best interests of the children may outweigh reluctance to separate siblings. People ex rel Repetti, 377 NYS 571 (1975). In Copeland v. Copeland, 232 AD2d 922 (3d Dept 1996), the court determined that given the dynamics of family life, the rule that it is best to keep siblings together is not absolute and need not be applied where the record indicated that the best interest of each child lies with a different parent.
4. LEGAL CUSTODY
A. Joint Custody
Joint legal custody envisions a form of shared decision-making on specified issues; usually including health, education, religion and welfare. Although there is no legal presumption in favor of joint custody in NYS, there is often a judicial preference in favor of joint legal custody. The Court does have the authority to order joint custody where there is a history of mature and civilized decision-making in the best interests of the children see Guarnier v. Guarnier, 155 AD2d 744 (3d Dept. 1989) but see Voelker v. Keptner, 156 AD2d 144 (4th Dept 1989).
B. Spheres of Decision-Making
Where the Court awards sole decision-making authority regarding different issues to each parent; (i.e. father medical, mother educational) because the Court recognizes a particular parent's superior ability to deal with a particular issue, in their child's life see Frize v. Frize, 266 Ad2d 753 (3d- Dept 1999) or the Court is concerned that an award of sole legal custody to the residential parent may result in the exclusion of the non-residential parent from a meaningful relationship with the child see Hugh L v. Fhara N.Y.L.J. June 1, 2000, p. 29, col. 6. In Tran v. Tran. 716 NYS2d 5 (1st Dep't 2000), the court vested decision-making authority in the non-residential parent with respect to the child's therapy.
C. Levels of Parental Involvement in Decision-Making
1. Joint decision-making on all decisions
2. Joint decision-making on specified important decisions with day-to-day decision-making reserved to the parent present.
3. Joint fact gathering, consultation and decision-making and in the event of deadlock; mediation, arbitration or final decision-making to a particular parent.
4. Joint fact gathering and consultation with sole decision-making to a particular parent.
5. Sole decision-making by a particular parent after consultation.
6. Each parent exercises sole decision-making on a specific sphere of issues.
D. Delineation of Issues for Joint Decision-Making/Consultation
1. change in access schedule
2. decisions resulting in expenditures in excess of $
3. activities which take place on other parent's time
4. change in child support plan
5. educational decisions including private v public school, selecting a college, and hiring tutors.
6. health-related decisions including selecting physicians, following treatment recommendations; obtaining mental health services, and orthodontia, teaching about birth control and emergency treatment.
7. religious training and education
8. miscellaneous decisions such as discipline, vacations, driving and extra--curricula activities.
E. Given Joint Decision-Making, Resolving Deadlock
1. divide "spheres of influence" among parents
2. divide "spheres of influence" among third parties
3. use mediation, arbitration, court
4. input by child
F. Communication Including Exchanging Information
1. periodic face-to-face scheduled communication
2. having third parties (doctors and teachers) provide information directly
3. obtaining information directly from child (but not using child as a messenger)
4. using electronic or written communication
5. PHYSICAL CUSTODY
There is a presumption that access to both parents is in the best i nterests of a child. Access is both a parent's and child's right. see Gerald D. v. Lucille S., 188 AD2d 650 (2d Dept 1992).
A. Scheduling Issues
1. importance of child being in same home on the night before school
2. importance of a particular parent accompanying a child to a particular activity (sports practice, church)
3. the ability of a child to travel to and from school from either home
4. the maximum period of time that the child can tolerate separation from one or both parent
5. geographic distance between homes, transportation issues
6. accommodating child care arrangements
7. need to duplicate belongings
9. transfer problems, lateness
B. Access Schedule Alternatives
1 . alternating weekends (Fri through Sun or Mon) and midweek dinner(s) or overnight visit(s)
2. alternating periods (split week, whole week) equally or unequally
3. two week rotation: 4-3-3-4;5-2-4-3
4. one week rotation: 6-1;5-2;4-3
5. flexible schedule to accommodate variable work shift
C. Scheduling Holidays, School Recesses and Vacations
1. holidays which are important to each parent or the child; if same day; alternate or share
2. do holiday celebrations entail travel to distant relatives?
3. availability of parent(s)/child care on school holidays and recess periods
4. child travel (with or without parent) during school recesses
5. summer camp plans
6. foreign travel
7. if holiday on Monday, Sunday overnight?
9. flexibility v specific rules
D. Suspended, Restricted and Supervised Access
1 . Suspended - Visitation may be suspended if it is inimical to the child' welfare see Licitra v. Licitra, 255 AD2d 394 (2d Dept 1999) and Weiss v. Weiss, 52 NY2d 170.
2. Restricted - The court may place restrictions on visitation based on the needs of the child and or parental fitness. In Lozada v. Lozada., 270 AD2d 422 (2d Dept 2000) the Court limited visitation with an incarcerated parent to 6 time per year. In McNenny v. McNenny, 159 AD2d 440 (1st Dept 1990) the court restricted visitation with a two year old to no overnights, but see Shink v. Shink, 140 AD2d 506 (2d Dept 1988). In Landau the Court conditioned expanding visitation on a parent's cooperation with therapeutic services. In Monahan v. Monahan, 178 AD2d 829 (3d Dept 1991) the Court refused to restrict midweek visitation. In Zion v. Zion, 201 AD2d 404 (1st Dept 1994) the court restricted contact to telephonic communications.
3. Supervised - The courts have also restricted visitation by requiring supervision as recommended by a psychological professional see Laura AK v. TiMpthy M, 204 AD2d 325 (2d Dept 1994) and due to safety issues see D'Errico v. D'Erric-P,, 158 AD2d 503 (2d Dept 1990). For a case which awards restricted, supervised and suspended visitation see Allen v. Farrow, 197 AD2d 327 (1st 1994).
i. Family Court has a contract with the YWCA to provide onsite supervision at no cost to the client.
ii. The following private agency provides supervision including therapeutic supervision, on and off-site: Supervised Visitation Experts
When relocation is proposed, the courts begin with the proposition that the child's best interest generally lie in being nurtured and guided by both natural parents. Although divorced custodial parents may ordinarily pursue their lives as they see fit, they are bound by the fundamental principle that it a decision to have a child imposes on each parent the obligation to protect the child's relationship with the other parent. Weiss v. Weiss, 52 NY 2d 171, (1981). In Tropea v. Tropea, 87 NY2d 727 (1996) the Court found that the relocation preserved regular and meaningful visitation and was in the best interests of the children. This case signals a departure from the prior "exceptional circumstances" standard.
1. Sibling Visitation DRL 71. While it is true that a petitioner in a sibling visitation proceeding has no absolute right to a hearing where, there is a factual dispute as to the best interests of the petitioner's half-siblings, a hearing should be held. Gregston v. Amatulli, 709 NYS2d 599 (2000)
2. Grandparent Visitation DRL 72 and Troxel v. Granville, 120 S.Ct. 2054 (2000)
3. Involvement of a Paramour. The court determined that the presence of the father's paramour during visitation was beneficial and supportive to the child. Hummel v. Hummel, 191 AD2d 296 (It Dept 1993) and Ulmer v. Ulmer, 254 AD2d 591 (3d Dept 1999)
4. Telephone Contact/Skype
5. advantages and disadvantages of splitting up children
6. accommodating child's schedule and activities (i.e.; birthday parties and 11 homework)
V. CHILD SUPPORT STANDARDS ACT ("CSSA")
Domestic Relations Law ("DRL") §240- 1-b
Family Court Act ("FCA") §413
A. Standard and Factors for Determining the Amount of Child Support
1. Basic Child Support
Under New York's Child Support Standards Act (CSSA), a court must always determine the basic child support obligation, even if the court ultimately deviates from this amount in formulating the final child support award. A court may deviate from this basic child support obligation only under extraordinary circumstances, as described in the statute.
Child Support percentages:
17% for one child
25% for two children
29% for three children
31% for four children
no less than 35% for five or more children.
2. Mandatory Add-Ons
Pro rata share of reasonable child care expenses while the custodial parent is working, attending school, job training. Summer camp should be specified in lieu of childcare.
Pro rata share of reasonable health care expenses that are not covered by health insurance (i.e., "unreimbursed medical insurance").
In Gentner v. Gentner, 736 N.Y.S.2d 431 (3rd Dept. 2001), the Appellate Division ruled that the trial court did not err when it failed to apportion add-on expenses in proportion to the parties’ income. The Court held that a pro rata sharing of uninsured/unreimbursed medical expenses and childcare expenses is appropriate only when the non-custodial parent’s basic child support obligation has been calculated pursuant to the CSSA, and not when the court decides that the formula is unjust or inappropriate and sets child support under DRL §240 (1-b)(g). (See paragraph 4 below)
Child's educational costs, such as private school or college tuition.
Child's educational enrichment costs, such as tutoring.
UNCLEAR: If Court can direct the non-custodial parent to pay child's extracurricular expenses, such as piano lessons, horseback-riding lessons
4. Deviations from the basic child support obligation
Factors to be considered to determine if the non-custodial parent's pro rata share of basic child support would be "unjust or inappropriate."
5. Health Insurance
6. Life Insurance
7. College Expenses
A court may, as part of an award of child support, require a non-custodial parent to contribute his share of the cost of a college education (see, DRL § 240 [1-b] [b] ; FCA § 413  [c] ).
In the First, Third and Fourth Departments, the application of a credit for college expenses is discretionary and generally limited to the cost of room and board (see, Finkelstein v. Finkelstein, 268 A.D.2d 273, 275 [1st Dep't 2000]; Paro v. Paro, 215 A.D.2d 965, 966 [3d Dep't 1995]; Houck v. Houck, 246 A.D.2d 905, 906 [3d Dep't 1988]; Burns v. Burns, 233 A.D.2d 852, 853 [4th Dep't 1996]). On a case-by-case basis, where appropriate, trial courts in these departments may order a reduction in basic child support commensurate with the non-custodial parent's pro rata share of the costs of food and lodging at college.
However, in the Second Department, the rule is that the trial court is to give the non-custodial parent a credit against child support for any amounts he or she contributes toward college expenses when the child lives away from home while attending college. In Sheridan v. Sperber, 269 A.D.2d 432, 702 N.Y.S.2d 894 (2d Dep't 2000), the court left no room for doubt that the "college credit" is both mandatory and coextensive with the non-custodial parent's contribution to any college expenses, including tuition. See also, Jablonski v. Jablonski, 25 A.D.2d 692 ; Justino v. Justino, 238 A.D.2d 549 ; Vainchenker v. Vainchenker, 242 A.D.2d 620 ).
The dollar-for-dollar mandatory credit for college expenses does not apply where there is an agreement between the parents that does not provide for the downward modification of child support if the non-custodial parent contributes to college expenses. Thus, the court in Maurer v. Erdheim, 738 N.Y.S.2d 885 (2d Dep't 2002) held that the non-custodial parent does not get a credit against child support for his contribution toward college expenses because the Stipulation of Settlement did not provide for it.
B. Who is required to pay child support ?
In most instances, the non-custodial parent must pay child support pursuant to CSSA.
1. Sole and Joint Legal Custody
2. Joint Physical Custody:
In Baraby v. Baraby, the court explained how to calculate child support in equal shared custody situations. As indicated on page 827 of the case, the court held that:
where, as here, the parents' custodial arrangement splits the children's physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the "noncustodial" parent for the purpose of support regardless of the labels employed by the parties [citations omitted]. That parent must be directed to pay his or her pro rata share of the child support obligation to the other parent unless "statutory formula yields a result that is unjust or inappropriate" [citations omitted].
C. Modification of Child Support
DRL §236 Part B (9)(b)(2)(ii), effective October 13, 2010, permits the modification of child support upon establishing a substantial change of circumstances or, in addition, after 3 years or if there has been a 15% change in the payor's or payee's income, as long as such change has been involuntary and diligent attempts for employment are demonstrated. The parties may specifically opt out of these modification provisions in a separation agreement or stipulation.
Relevant Case Law on Modification of Child Support
Comm. of Soc. Serv. ex rel. Warner v. Deno, 31 Misc.3d 490, 2011 N.Y. Slip Op. 21036 (Family Court, Franklin Co. J. Main, February 8, 2011) – support petition filed the same day that the new child support legislation went into effect. Legislation appears to be for modification of child support, but this petition is seeking an initial order of support. Court finds that the new legislation does not affect current case law regarding initial applications for child support. Court may impute income to a party who loses employment due to his or her own conduct.
VI. EQUITABLE DISTRIBUTION: Factors In Determining Spouse's "Equitable Share"
RULE: The court in deciding equitable distribution must set forth the factors it considered in its decision and such requirement may not be waived by either party or counsel. (DRL §236(B)(5)(g)). The court must set forth these factors in a clear and comprehensive manner. Dunne v. Dunne, 172 A.D.2d 482, 567 N.Y.S.2d 838 (2d Dep’t 1991).
The specific factors found in DRL §236 (B) (5) (d) are as follows:
(1) The income and property of each party at the time of the marriage and at the time of the commencement of the action.
(i) An unequal award of equitable distribution was justified in view of the parties' respective financial circumstances, including the husband's substantial separate property assets. Glasberg v. Glasberg, 162 A.D.2d 586, 556 N.Y.S.2d 772 (2d Dep’t 1990).
(2) Duration of the marriage and the age and health of both parties.
(i) Wife awarded eighty percent of the proceeds from the sale of the marital residence where the wife was forty--two years old, lacked any formal education and had an inability to ach ieve financial independence. Pagan v. Pagan, 138 A.D.2d 685, 526 N.Y.S.2d 498 (2d Dep’t 1988).
(3) Need of the custodial parent to occupy or own the marital residence and to use or own its household effects.
(i) Ordinarily there is a preference to award the custodial parent exclusive use and occupancy of the marital residence. Leabo v. Leabo, 203 A.D.2d 254, 610 N.Y.S.2d 274 (2d Dep’t 1994).
(ii) The preference that the custodial parent remain in the marital residence may be overcome by proof that alternate housing is available in the general area at a more affordable cost, or the party to remain is incapable of maintaining the home or that either party is in immediate need of the sale proceeds. Kalisch v. Kalisch, 184 A.D.2d 751, 585 N.Y.S.2d 476 (2d Dep’t 1992); Waldmann v. Waldmann, 231 A.D.2d 710, 647 N.Y.S.2d 827 (2d Dep’t 1996).
(iii) Even where a husband has substantial income, if it would be unduly burdensome to force him to bear the cost of maintaining the marital residence in the face of financial obligations and his child support obligations, it should be sold. In essence, the need of the custodial parent to occupy the marital residence is outweighed by the financial need of the parties to sell the house. Lauer v. Lauer, 145 A.D.2d 470, 535 N.Y.S.2d 427 (2d Dep’t 1988).
(iv) Sale of the marital residence was directed where immediate and paramount concerns of providing for the children's college education outweighed the preference for continuing occupancy. Ricciardi v. Ricciardi, 173 A.D.2d 807,571 N.Y.S.2d 41 (2d Dep’t 1991).
(4) The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution.
(5) Any award of maintenance under DRL §236 (B) (6) (a).
(6) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker and to the career and career potential of the other party.
(i) An equal distribution of assets was proper where the husband was essentially the sole wage earner in the course of a nineteen year marriage and the wife was a full-time parent, spouse and homemaker. Dawson v. Dawson,152 A.D.2d 717, 544 N.Y.S.2d 172 (2d Dep’t 1989).
(ii) Wife's comparatively small financial contributions earlier in the marriage were held to be very significant since they enabled the husband to pursue his own education and career opportunities. Ander son v. Anderson, 153 A.D.2d 823, 545 N.Y.S.2d 335 (2d Dep’t 1989).
(7) The liquid or non-liquid character of all marital property.
(i) It was error to award virtually all liquid assets to one spouse while leaving the other spouse with only pension interests, the full value of which was not subject to immediate realization. Petrie v. Petrie, 143 A.D.2d 258, 532 N.Y.S.2d 283 (2d Dep’t 1988).
(ii) It was also error to award virtually all marital property to one spouse while leaving the other spouse with merely a distributive award, the full value of which would not be immediately received and which might not be received in the future. Filax v. Filax, 176 A.D.2d 1194, 576 N.Y.S.2d 692 (4th Dep’t 1991).
(8) Probable future financial circumstances of each party.
(i) A distribution in excess of fifty percent was justified upon consideration of all the statutory factors, particularly the probable future financial circumstances of the parties. The likelihood that the husband would continue prosperous growth in his medical practice was compared to the wife's modest financial prospects. Megally v. Megally, 142 A.D.2d 721, 531 N.Y.S.2d 301 (2d Dep’t 1988).
(9) Impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party.
(10) The tax consequences to each party.
(i) Where husband failed to present any evidence of tax consequences of distribution, equitable distribution without consideration of tax consequences was appropriate. Malin v. Malin, 172 A.D.2d 721, 569 N.Y.S.2d 743 (2d Dep’t 1991).
(ii) However, where no evidence of taxable consequences was presented at trial and was only raised in post-trial memos, the Appellate Division, as a matter of discretion, considered the taxable consequences of the equitable distribution since to refuse to do so would have resulted in a fundamental injustice. Teitler v. Teitler, 156 A.D.2d 314, 549 N.Y.S.2d 13 (1st Dep’t 1989).
(iii) Tax Impact: Where husband paid taxes in connection with sale of stock, wife was entitled to fifty percent of the net proceeds after taxes. Hackett v. Hackett, 147 A.D.2d 611, 538 N.Y.S.2d 20 (2d Dep’t 1989).
Failure to Sign Joint Tax Return: Any adverse financial consequences of a party's refusal to sign a joint and/or amended tax return proffered by the other spouse can be taken into account in distributing the marital property. Teich v. Teich , 240 A.D.2d 258, 658 N.Y.S.2d 599 (1st Dep’t 1997).
(11) The wasteful dissipation of assets by either spouse.
(i) Where a wife dissipated marital assets and attempted to conceal same, at least a portion of the amounts she dissipated should be charged against her share of the marital assets. Lenczycki v. Lenczycki, 152 A.D.2d 621, 543 N.Y.S.2d 724 (2d Dep’t 1989).
(ii) Where a spouse transferred assets to trusts and other corporations which were, in essence, his alter ego, a distributive award was necessary to achieve an equitable result in the distribution of property. Goldberg v. Goldberg, 172 A.D.2d 316, 568 N.Y.S.2d 394 (1st Dep’t 1991).
(iii) The shared liability caused by a spouse's failure to properly report income to the taxing authorities. Moody v. Moody, 17 2 A.D.2d 730, 569 N.Y.S.2d 116 (2d Dep’t 1991).
(iv) Wife awarded seventy percent of the marital property where husband had tangled financial records, dissipated marital assets through gambling, was evasive and attempted to secrete moneys. Conceiaco v. Conceiaco, 203 A.D.2d 877,611 N.Y.S.2d 318 (3d Dep’t 1994).
(v) Wife awarded sixty percent of the marital assets where husband refused to obtain employment for a two year period prior to trial and withdrew large sums of cash for his expenses. Southwick v. Southwick, 202 A.D.2d 996, 612 N.Y.S. 2d 704 (4th Dep’t 1994).
(vi) Wife awarded sixty-five percent of the marital property where husband secreted assets into foreign bank accounts and squandered sizable sums on luxury items and admitted adulterous affairs. Maharam v. Maharam, 245 A.D.2d 94, 666 N.Y.S.2d 129 (1st Dep’t 1997).
(vii) Wife awarded seventy-five percent of the value of the marital residence where husband wastefully dissipated marital assets. Ferdinando v. Ferdinando, 236 A.D.2d 585, 654 N.Y.S.2d 652 (2d Dep’t 1997).
(12) Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.
(13) Any other factor which the court shall expressly find to be just and proper.
B. "Egregious Fault"
a) Domestic Violence Cases Awarding Victim/Spouse More Than 50%
1. Havell v. Islam, 301 A.D.2d 339, 751 N.Y.S.2d 449 (1st Dep’t 2002).
Wife was awarded 95% of the marital assets which had a value of approximately 20 million dollars, where the Husband broke into the Wife's room, pinned her to the bed with his knee and beat her viciously with the barbell on her face, neck and hands. Her screams brought the parties' three daughters into the room and the oldest called 911, which resulted in the Husband renewing his attack with a pipe. The Wife's injuries were severe and in addition to facial and dental surgeries, she suffered pain, dizziness, headaches, nightmares, sleeplessness and post-traumatic stress syndrome.
The Husband's contention that egregious fault requires interference with the spouse's ability to be or to become self-supporting was wrong. Impairment of economic independence is not a requirement of a finding of egregious fault. There is a requirement that the conduct grievously injures some highly valued social principle.
2. Brancoueanu v. Brancoveanu, 145 A.D.2d 395, 535 N.Y.S.2d 86 ( 2d Dep't 1988).
Wife was awarded 60% of the net proceeds of the marital residence because the Husband's attempt to hire a person to murder the Wife constituted "particularly egregious and shocking" marital misconduct.
The court also held that a "great injustice would result if the Husband, who unsuccessfully contrived to have his Wife murdered" were to be awarded a portion of the value of the Wife's dental practice.
3. Wenzel v. Wenzel, 120 Misc.2d 1001, 472 N.Y.S.2d 830 (Sup. Ct. Suffolk Co. 1984).
Wife was awarded 100% of the marital residence and the Husband's police pension, taking "into consideration" the Husband's vicious attack and "partly to compensate the Wife for child support and maintenance, which were uncollectible due to the Husband's incarceration."
Husband stabbed the Wife numerous times and fled the marital residence "leaving her for dead." The Wife required extensive hospitalization, surgery and therapy. The Husband was arrested 5 months later, convicted of attempted murder and at the time of the decision was serving an 8-1/2 to 25-year prison term.
Marriage marked by long history of physical and verbal abuse was found to be egregious fault; 100% of marital assets awarded to wife. . (NOTE: The Judge, Hon. Jacqueline Silberman, was also the judge in Havell v. Islam.)
b) Cases Rejecting "Egregious Fault" argument
Generally, marital fault is not a relevant consideration unless the conduct is so egregious that it shocks the conscience of the court. Blickstein v. Blickstein, 99 A.D.2d 287, 472 N.Y.S.2d 110 (2d Dep’t 1984.
(a) Wife's involvement in an adulterous relationship did not rise to the level of such egregious or uncivilized conduct as to warrant depriving her of an equal share of the marital assets. Howard S. v. Lillian S., 14 N.Y.3d 431, 928 N.E.2d 399, 902 N.Y.S.2d 17 (2010); Lestrange v. Lestrange, 148 A.D.2d 587, 539 N.Y.S.2d 53 (2d Dep’t 1989).
(b) Husband's fraudulent promise to have children, resulting in Wife having passed the age of child bearing, did not constitute egregious marital fault. McCann v. McCann, 156 Misc.2d 540, 593 N.Y.S.2d 917 (Sup. Ct. N.Y. Co. 1993).
C. Marital v. Separate Property
"Marital Property" is defined in Domestic Relations Law ("DRL") §236[B](c) as follows:
"c. The term "marital property" shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined."
"Separate Property" is defined in DRL §236[B](1)(d) as follows:
"d. The term separate property shall mean:
(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;
(2) compensation for personal injuries;
(3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse (emphasis added);
(4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part."
VII. SPOUSAL SUPPORT / MAINTENANCE / ALIMONY
DRL § 236, Part B(6)
FCA § 412, 416, 437
The calculation of income in accordance with the Child Support Standards Act (“CSSA”) is as follows:
Based upon the parties ______ income tax returns, the Husband (“Payor”) represents that his gross income in ____ totaled $_______, and the Wife (“Payee”) represents that her gross income in ____ totaled $_______.
Payor’s Income minus FICA
(i.e., $____ $____ = $_______) $_______________
Payee’s Income minus FICA
(i.e., $____ $____ = $_______) $_______________
Temporary Maintenance is the lower of A or B:
A. 30% of the Payor’s CSSA Income (up to $500,000)
- 20% of the Payee’s CSSA Income.
= Temporary Maintenance
B. Payor’s CSSA Income (up to $500,000)
Payee’s CSSA Income
= Total Spousal Income
(Total Spousal Income x 40%) – (Payee’s CSSA Income) = Temporary Maintenance
1. Amount: Case of Steinberg v. Steinberg, 18 N.Y.2d 492, 277 N.Y.S.2d 129 (1966)
2. Whether to Award Maintenance: Hartog v. Hartog, 85 N.Y.2d 36, 623 N.Y.S.2d 537
3. Reasonable Needs vs. Preseparation Standard of Living. Cassano v. Cassano, 111 A.D.2d 208 (Second Dep't 1985).
4. Statutory Factors.
DRL § 236, Part (B)(6)(a) sets out the statutory factors to be considered by a court in determining maintenance, and in determining the amount and duration of maintenance.
The Statutory Factors:
DiCaprio v. DiCaprio, 556 N.Y.S.2d 1011 (4th Dep't 1990)
Neumark v. Neumark, 120 A.D.2d 502 (Second Dep't 1986)
5. Duration of Maintenance
Court's Discretion - DRL § 236(b)(1)(a) provides that maintenance may be awarded for a definite or indefinite period of time to meet the reasonable needs of a party to a matrimonial action.
Terminates upon death of either party or upon remarriage of recipient. DRL § 236, Part B, (6)(c).
In Mazzone v. Mazzone, 736 N.Y.S.2d 683 (2d Dep't 2001), the court upheld nondurational maintenance for disabled wife.
In Schenfeld v. Schenfeld, 289 A.D.2d 219, 734 N.Y.S.2d 465 (2d Dep't 2000), the court modified nondurational maintenance to wife so that it would cease when wife reaches 65 years.
6. Basis for Determination - DRL §236(B)(5)(g) (Exhibit B)
7. Marital Fault
8. Stipulation of Settlement
The parties' agreement must provide that the maintenance will terminate upon the happening of a certain event such as remarriage; if not, maintenance will continue. Slagsvol v. Schenck, 213 A.D.2d 537, 624 N.Y.S.2d 182 (2d Dep't 1995).
VIII. COUNSEL FEES
Counsel fees and expenses may be awarded to (or paid by) your client pursuant to DRL §237.
Domestic Relations Law §237 provides:
(a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to declare the validity or nullity of a judgment of divorce rendered against a spouse who was the defendant in any action outside the State of New York and did not appear therein where such spouse asserts the nullity of such foreign judgment, (5) to obtain maintenance or distribution of property following a foreign judgment of divorce, or (6) to enjoin the prosecution in any other jurisdiction of an action for a divorce, the court may direct either spouse or, where an action for annulment is maintained after the death of a spouse, may direct the person or persons maintaining the action, to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse 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 rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in his own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section.
(b) Upon any application to enforce, annul or modify an order or judgment for alimony, maintenance, distributive award, distribution of marital property or for custody, visitation, or maintenance of a child, made as in section two hundred thirty-six or section two hundred forty of this article provided, or upon any application by writ of habeas corpus or by petition and order to show cause concerning 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 rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement, between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in counsel's own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section.
(c) In any action or proceeding for failure to obey any lawful order compelling payment of support or maintenance, or distributive award the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney representing the petitioner.
(d) The term “expenses” as used in subdivisions (a) and (b) of this section shall include, but shall not be limited to, accountant fees, appraisal fees, actuarial fees, investigative fees and other fees and expenses that the court may determine to be necessary to enable a spouse to carry on or defend an action or proceeding under this section. In determining the appropriateness and necessity of fees, the court shall consider:
1. The nature of the marital property involved;
2. The difficulties involved, if any, in identifying and evaluating the marital property;
3. The services rendered and an estimate of the time involved; and
4. The applicant's financial status.
The foregoing represents an amendment to the DRL that was effective on October 12, 2010. In short, there is now a rebuttable presumption that the “monied spouse” should pay the counsel fees of the “non-monied spouse.” Prior to October 12, 2010, the non-monied spouse had to prove that he or she lacked sufficient funds to pay for appellate counsel fees, while the other former spouse had the ability to pay. See, e.g., LeRoy v. LeRoy, 276 A.D.2d 442, 715 N.Y.S.2d 231 (1st Dep’t 2000); O’Shea v. O’Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8, 711 N.E.2d 193 (1999).
The new law also added actions “to obtain maintenance or distribution of property following a foreign judgment” (DRL§ 237 (a)) and “enforcement actions” (DRL § 237 (b) to the list of actions for which counsel fees may be requested.
Despite a body of case law, including strong pronouncements from the Court of Appeals, that recognized that an award of interim counsel fees to the non-monied spouse enabled that spouse to retain competent counsel and litigate the case on an equal footing with the monied spouse (see, e.g., Frankel v. Frankel, 2 N.Y.3d 601, 781 N.Y.S.2d 59, 814 N.E.2d 37 (2004), O’Shea v. O’Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8, 711 N.E.2d 193 (1999), (DeCabrera v. DeCabrera-Rosete, 70 N.Y.2d 879, 524 N.Y.S.2d 176, 518 N.E.2d 1168 (1987), Charpie v. Charpie, 271 A.D.2d 169, 710 N.Y.S.2d 363 (1st Dep’t 2000)), the Supreme Court regularly held that the decision as to whether or not to award interim counsel fees should be deferred to trial. The result, of course, was that counsel for the non-monied spouse often had to work without compensation in highly litigated cases.
The 2010 amendment is a codification of a significant Second Department decision, Prichep v. Prichep, 52 A.D.3d 61, 858 N.Y.S.2d 667 (2d Dep’t 2008). In Prichep, after noting the Court of Appeals’s decisions in O’Shea, Frankel and DeCabrera, Presiding Justice A. Gail Prudenti noted that requests for interim counsel fees do not require the Court’s scrutiny, as an award of final counsel fees does, because of the important public policy of ensuring the non-monied spouse’s ability to adequately litigate the case. The Court held:
In light of the important public policy underlying Domestic Relations Law § 237(a), as acknowledged in Frankel, an award of interim counsel fees to the non-monied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties…Accordingly, courts should not defer requests for interim counsel fees to the trial court, and should normally exercise their discretion to grant such a request made by the non-monied spouse, in the absence of good cause – for example, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work requited in the case – articulated by the court in a written decision. (citations omitted)
Prichep v. Prichep, 52 A.D.3 61 at 65-66, 858 N.Y.S.2d at 670-671.
Although the new statute clearly shifts the burden of proof to the monied spouse, do not be lulled into a false sense of security if you represent the non-monied spouse. When contemplating an appeal of a pendente lite counsel fee award, consider that:
Although the Supreme Court, in limiting its award of interim counsel fees to the husband, deemed the litigation of such other matters to be unnecessary or premature, we note that such considerations, while potentially relevant in determining the propriety and amount of a final award of counsel fees, did not warrant the denial of the requested amounts of interim counsel fees in this case.
While DRL §237 does not specifically state that it applies to appeals, the phrase, “to carry on or defend the action or proceeding” is sufficiently broad to support an award of appellate counsel fees – “defending the action or proceeding” includes any appeal of that action or proceeding.
An award of prospective appellate counsel fees requires a showing as to the estimated value and extent of the contemplated legal services to be performed, although “an exact breakdown” is not required. Block v. Block, 296 A.D.2d 343, 746 N.Y.S.2d 15 (1st Dep’t 2002).
DRL §237 offers no procedure for requesting an award of counsel fees, but it is accepted practice that such requests are made by motion on notice. In a matrimonial action, such a motion is made to the Supreme Court, not the Appellate Division. Aborn v. Aborn, 196 A.D.2d 561, 601 N.Y.S.2d 339 (2d Dep’t 1993).
An appellant seeking an award of counsel fees must show that the appeal is being taken in good faith and that there is a reasonable probability of success on appeal. Koff v. Koff, 286 A.D. 1110, 146 N.Y.S.2d 461 (2d Dep’t 1955); Greenberg v. Greenberg, 134 A.D. 419, 119 N.Y.S.2d 227 (1st Dep’t 1909); Habiby v. Habiby, 24 A.D.2d 435, 260 N.Y.S.2d 664 (1st Dep’t 1965; Prytherch v. Prytherch, 22 A.D.2d 706, 253 N.Y.S.2d 1964).
DRL § 237 provides that “applications for the award of fees and expenses may be made at any time or times prior to final judgment.” The motion for counsel fees on appeal can be made at any time during the appellate process, or, if circumstances warrant, even after it:
1. Do not need to prove indigence (used to obtain a free transcript).
2. Available prospectively – while costs pursuant to CPLR 8107 are available only to the winner. CPLR 8203(a) limits costs amount to $250 in the Appellate Division; CPLR 8204 limits costs to $500 in the Court of Appeals.
 Under DRL §236(B)5-A(4)(B), income shall include income from income producing property.