Home » Speaking Engagements » Kathleen Donelli, White Plains Divorce Lawyer, No Fault Divorce and Maintenance Issues

Kathleen Donelli, White Plains Divorce Lawyer, No Fault Divorce and Maintenance Issues

New York State Judicial Institute

White Plains, New York

 

 

 

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No Fault and Maintenance Issues

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March 13, 2013

11:30 p.m. - 12:45 p.m.

 

 

 

Presented by:  Hon. Richard Dollinger, ASCJ

 

                                                 Kathleen Donelli, Esq.

                                                 McCarthy Fingar LLP

                                                 11 Martine Avenue - 12th Floor

                                                 White Plains, New York  10606

 

 

 

 

 

  • Temporary Maintenance Cases Under DRL §236B(5-a)
  • The No-Fault Scoreboard
  • What is a diligent job search?
  • Imputation of Income - Issues and Proof for the Courts
  • Resources Used for Imputing Income


TABLE OF CONTENTS

 

                                                                                                                                    Page No.

 

Temporary Maintenance Cases under DRL §236 Part B(5-a),

   effective October 13, 2010 …………………………………………………….………   2 

 

Salman v. Salman, 53611/2011, 2012 WL 5048190

            (Kings Sup. Ct. 2012) (J. Sunshine)………………………………………   2  

 

G.R.P. v. L.B.P., 36 Misc. 3d 1217(A)

            (Monroe Sup. Ct. 2012) (J. Dollinger) ………………………………..…     2

 

Gaetano D. v. Antoinette D., 16888/11, 2012 WL 4748311

            (Westchester Sup. Ct. 2012) (J. Connolly) ……………………………….   2

 

Charasz v. Rozenblum, 95 A.D.3d 1057, 945 N.Y.S.2d 117

            (2d Dept. 2012) …………………………………………………………..   2

 

E.J.L. v. K.L.L., 950 N.Y.S.2d 626

            (Monroe Sup. Ct. 2012) (J. Dollinger) ……………………………….….     2

 

C.H. v. S.H., 34 Misc. 3d 1218(A), 950 N.Y.S.2d 490

            (Schenectady Sup. Ct. 2012) (J. Versaci) …………...………………..….    2

 

Liebman v. Liebman, 37 Misc. 3d 1224(A)

(Queens Sup. Ct. 2012) (J. Packman Brown)……………………………     3

 

S.B. v. G.B., 33 Misc. 3d 1212(A), 939 N.Y.S.2d 743

            (N.Y. Sup. Ct. 2011) (J. Gesmer) ………………………………..……….   3

 

Maddiwar v. Maddiwar, 37 Misc. 3d 1224(A)

(Queens Sup. Ct. 2012) (J. Packman Brown)……………………………     3

 

H.K. v. J.K., 32 Misc. 3d 1226(A), 936 N.Y.S.2d 58

            (N.Y. Sup. Ct. 2011) (J. Drager) ……………………………..………….    3

 

Khaira v. Khaira, 938 N.Y.S.2d 513 (1st Dept. 2012) …………………………..    4

 

S.C. v. J.R.C., Jr., 31 Misc. 3d 1239(A), 930 N.Y.S.2d 177

            (Nassau Sup. Ct. 2011) (J. Maron) ……………………………..…….….    4

 

Osha v. Osha, 101 A.D.3d 481 (1st Dept. 2012)………………………………….  4

 

A.C. v. D.R., 32 Misc. 3d 293, 927 N.Y.S.2d 496

            (Nassau Sup. Ct. 2011) (J. Falanga) ……………………………………..    4

 

Woodford v. Woodford, 2012 NY Slip Op 07993 (2d Dept. 2012)……………… 5

Jill G. v. Jeffrey G., 31 Misc. 3d 1209(A), 929 N.Y.S.2d 200

            (Nassau Sup. Ct. 2011) (J. Janowitz) …………………………………….    5

 

Martin v. Buckley, 33 Misc. 3d 1234(A), 946 N.Y.S.2d 67

            (Monroe Sup. Ct. 2011) (J. Fisher) ………………………………..……. 5

 

J.H. v. W.H., 31 Misc. 3d 1203(A), 930 N.Y.S.2d 175

            (Kings Sup. Ct. 2011) (J. Thomas) ……………………………..…….….    5

 

R.L. v. C.L., 33 Misc. 3d 1226(A), 941 N.Y.S.2d 540

            (Rensselaer Sup. Ct. 2011) (J. Lynch)  ………………………..………….   6

 

Margaret A. v. Shawn B., 31 Misc. 3d 769, 921 N.Y.S.2d 476

            (Westchester Sup. Ct. 2011) (J. Connolly) ………………………………    6

 

Salai v. Salai, 34 Misc. 3d 232, 934 N.Y.S.2d 659

            (Monroe Sup. Ct. 2011) (J. Fisher) ……………………………..………. 6

 

Fraterrigo v. Fraterrigo, 2011 WL 5325731

            (Albany Sup. Ct. 2011) (J. Teresi) ……………………………..…………   6

 

J.V. v. G.V., 33 Misc. 3d 1212(A), 939 N.Y.S.2d 740

            (Nassau Sup. Ct. 2011) (J. Janowitz)  ………………………………...….    6

 

S.G. v. P.G., 32 Misc. 3d 1233(A), 936 N.Y.S.2d 61

            (Nassau Sup. Ct. 2011) (J. Maron) ……………………………………….   7

 

Valentin v. Valentin, 32 Misc. 3d 1223(A), 936 N.Y.S.2d 62

            (Queens Sup. Ct. 2011) (J. Jackman-Brown) …………………………….   7

 

C.K. v. M.K., 31 Misc. 3d 937, 923 N.Y.S.2d 817

            (Rockland Sup. Ct. 2011) (J. Weiner) ……………………………………   7

 

Scott M. v. Ilona M., 31 Misc. 3d 353, 915 N.Y.S.2d 834

            (Kings Sup. Ct. 2011) (J. Sunshine) ……………………………..………    7

 

 

The No-Fault Scoreboard

 

Rinzler v. Rinzler, 97 A.D.3d 215 (3d Dept. 2012) ……………………………..    9

 

Tuper v. Tuper, 98 A.D.3d 55 (4th Dept. 2012) …………………………………    9

 

Matter of Perricelli, 36 Misc. 3d 418 (Westchester Surr. Ct. 2012) ……………..    9

 

Filstein v. Bromberg, 36 Misc. 3d 404 (N.Y. Sup. Ct. 2012) ..………………….     9

 

Townes v. Coker, 35 Misc. 3d 543 (Nassau Sup. Ct. 2012) …………………….     9

 

Vahey v. Vahey, 35 Misc. 3d 691 (Nassau Sup. Ct. 2012) ………………………   9

 

Palmero v Palmero, 35 Misc. 3d 1211A (Monroe Sup. Ct. 2011) ……………….    10

 

A.C. v. D.R., 32 Misc. 3d 293 (Nassau Sup. Ct. 2011) ………………………....    10

 

Strack v. Strack, 31 Misc. 3d 258 (Essex Sup. Ct. 2011) ……………………….     10

 

Schiffer v. Schiffer, 33 Misc. 3d 795 (Dutchess Sup. Ct. 2011) ………………..     10

 

 

What is a diligent job search?

Szalapski v. Schwartz, 35 Misc. 3d 1219(A), 951 N.Y.S.2d 84

            (Monroe Sup. Ct. 2011) (J. Dollinger) ………………………………….      11

 

Insufficient Job Searches

Ralph S. v. Laura S., 3 Misc. 3d 1105(A), 787 N.Y.S.2d 680                                              (Orange Fam. Ct. 2004) ………………………………………………….                                             13

 

O'Brien v. McCann, 249 A.D.2d 92, 671 N.Y.S.2d 458 (1st 1998) …………….    13

 

      Davis v. Davis, 197 A.D.2d 622, 602 N.Y.S.2d 672 (2d Dept. 1993) ………….    13

 

Y.G. v. A.T., 25 Misc. 3d 1223(A), 906 N.Y.S.2d 777

            (Kings Sup. Ct. 2009) (J. Thomas)………………………………………     13

 

Muselevichus v. Muselevichus, 40 A.D.3d 997, 836 N.Y.S.2d 661

            (2d Dept. 2007) …………………………………………………………     13

 

Devane v. Devane, 13 Misc. 3d 1205(A), 824 N.Y.S.2d 753

            (Rockland Sup. Ct. 2006) (J. Weiner) …………………………………...    13

 

Sufficient Job Searches

Preischel v. Preischel, 193 A.D.2d 1118, 598 N.Y.S.2d 642

            (4th Dept. 1993) ………………………………………………………….   13

 

Ketcham v. Crawford, 1 A.D.3d 359, 767 N.Y.S.2d 47 (2d Dept. 2003) ……….  13

 

Simmons v. Simmons, 26 A.D.3d 883, 809 N.Y.S.2d 709 (4th Dept. 2006) ……   13

 

Glinski v. Glinski, 199 A.D.2d 994, 606 N.Y.S.2d 468 (4th Dept. 1993) ……….   13

 

Rahn v. Rahn, 768 So.2d 1102 (Ct.App.Fla.2000) ………………………………   13

 

Imputation of Income

            1.  Family Support

Baumgardner v Baumgardner, 951 N.Y.S.2d 64 (2d Dept. 2012) ……………   14

 

Anonymous SR v. Anonymous GR, 17 Misc. 3d 1116A

         (Nassau Sup. Ct. 2007) …………………………………………………… 14

 

Rostropovich v. Guerrand-Hermes, 18 A.D.3d 211 (1st Dept. 2005) …………  14

 

Mojdeh M. v Jamshid A., 36 Misc. 3d 1209A (Kings Sup. Ct. 2012) ………… 14

 

Rooney v Rooney, 92 A.D.3d 1294 (4th Dept. 2012)

 

            2.  Employer paid benefits

Matter of Solis v. Marmolejos, 50 A.D.3d 691 (2d Dept. 2008) ………………  14

 

            3.  Statistical Evidence of Workplace Employment

Matter of Kasabian v. Chichester, 72 A.D.2d 1141 (3d Dept. 2010) ………….  15

 

            4.  Vocational Experts

Lago v. Adrian, 93 A.D.3d 697 (2d Dept. 2012) ……………………………… 15

 

Spreitzer v. Spreitzer, 40 A.D.3d 840 (2d Dept. 2007) ……………………….   15

 

McAuliffe v. McAuliffe, 70 A.D.3d 1129 (3d Dept. 2010)……………………  15

 

            5.  Lack of Credibility

R.L. v. J.S., 34 Misc. 3d 1236A (Richmond Sup. Ct. 2012) ………………….   15

 

Mosso v. Mosso, 84 A.D.3d 757 (2d Dept. 2011) …………………………….   15

 

Resources used for Imputing Income ……………………………………………….…    16

 

 

 

Temporary Maintenance Cases

under DRL §236 Part B(5-a), effective October 13, 2010

 

Deviated From Presumptive Award

Applied the Statutory Formula

Salman v. Salman, 53611/2011, 2012 WL 5048190 (Kings Sup. Ct. 2012) (J. Sunshine)

 

Based on the “husband's complete lack of candor with the court and his incredible and inconsistent sworn financial affidavits, tax returns and deposition testimony” the court cannot calculate the presumptively correct sum of temporary maintenance utilizing the temporary maintenance guidelines. Instead, the court deviated from awarding a presumptively correct sum and awarded an amount based on the needs of the payee and the standard of living of the parties prior to commencement of the divorce action.

G.R.P. v. L.B.P., 36 Misc. 3d 1217(A) (Monroe Sup. Ct. 2012) (J. Dollinger)

 

The court awarded temporary maintenance to the wife in the amount of $25,906 per year where the husband had resources available in the amount of $110,000, $75,000 from annual subsidies from his parents and $35,000 as imputed income. The husband does not have the income to support these payments but he does have assets to pay these expenses during the pendency of the divorce. In the absence of a job that will generate enough income, the husband may have to turn to his parents for the resources to pay his obligations where his parents have always provided that financial support to the couple.

Gaetano D. v. Antoinette D., 16888/11, 2012 WL 4748311 (Westchester Sup. Ct. 2012) (J. Connolly)

 

The court based its temporary maintenance award of $2,000 per month on wife's reasonable needs, and not the statutory presumptive obligation of pendente lite maintenance, in light of insufficient evidence to determine husband's gross income; parties' lifestyle and expenses set forth in net worth statements exceeded the income stated in their tax returns.  The temporary maintenance award was based on the standard of living established during the marriage, age and health of parties, earning capacity of parties, and reasonable expenses to maintain pre-divorce marital residence.

Charasz v. Rozenblum, 95 A.D.3d 1057, 945 N.Y.S.2d 117 (2d Dept. 2012)

 

 

The lower court properly applied the new statutory formula set forth in DRL § 236 (B) (5-a) to determine an appropriate award of temporary maintenance pursuant to the wife's application for pendente lite relief, which was made in her separate divorce action, commenced after the effective date of the new statutory formula.  Interestingly, the court did not discuss why the statutory formula was properly applied.  Instead, it relied on the well established case law that "inequities in pendent lite awards are best remedied by a speedy trial … ."

E.J.L. v. K.L.L., 950 N.Y.S.2d 626 (Monroe Sup. Ct. 2012) (J. Dollinger)

 

The court reduced the presumptive temporary maintenance award of $19,349 to $10,000 per year because the sheer size of the presumptive award would result in a financial resource shift justifying the court's determination that the presumptive calculation would be unjust and inappropriate.  Unlike the court in Scott M, the court concluded that an analysis of the 17 factors listed in DRL §236B(5-a)(e)(1) was not required because the "resource shift" was sufficient to conclude that the presumptive award would be unjust and inappropriate.

 

C.H. v. S.H., 34 Misc. 3d 1218(A), 950 N.Y.S.2d 490 (Schenectady Sup. Ct. 2012) (J. Versaci)

 

The guideline amount totaled $0 where the court projected the net annual incomes of the parties to be $54,000 for the Plaintiff and $68,000 for the Defendant.

Liebman v. Liebman, 37 Misc. 3d 1224(A) (Queens Sup. Ct. 2012) (J. Packman Brown)

 

The held that the presumptive award in the sum of $6,337.70 monthly is unjust or inappropriate. Specifically, the Court adjusted the presumptive temporary maintenance award considering factor (q).  The statute is silent regarding whether the Court shall order the presumptive maintenance award in proceedings in which the payor spouse has agreed or is directed to maintain the mortgage and/or carrying charges on the marital residence. In the instant proceeding, it is undisputed that Plaintiff has maintained the carrying charges on the marital residence, including the mortgage, maintenance and insurance, in the sum of $1,739.91 monthly. Thus, the Court shall deduct the sum of $1,739.91 from Plaintiff's temporary maintenance obligation in the sum of $6,337.70. Therefore, Plaintiff's temporary maintenance obligation is the sum of $55,173.51 annually, or $4,597.79 monthly, or $2,122.05 bi-weekly, or $1,061.02 weekly.

 

S.B. v. G.B., 33 Misc. 3d 1212(A), 939 N.Y.S.2d 743 (N.Y. Sup. Ct. 2011) (J. Gesmer)

 

Where the husband's gross income was $862,451, the court applied the formula to $500,000 and concluded that the presumptive award of $12,500 was not unjust or inappropriate.

Maddiwar v. Maddiwar, 37 Misc. 3d 1224(A) (Queens Sup. Ct. 2012) (J. Packman Brown)

 

Defendant's application seeking temporary maintenance is denied where the court finds that the presumptive award in the sum of $3,558.22 monthly is unjust or inappropriate. Specifically, the Court adjusts the presumptive temporary maintenance award considering factor (q).  The statute is silent regarding whether the court shall order the presumptive maintenance award in proceedings in which the payor spouse has agreed or is directed to maintain the mortgage and/or carrying charges on the marital residence. In the instant proceeding, Plaintiff has agreed to maintain the carrying charges on the marital residence, including the mortgage, real estate taxes and homeowner's insurance. The carrying charges on the marital residence total approximately $7,466.95 monthly. This amount exceeds the presumptive maintenance award. Moreover, the statute is silent regarding whether the Court shall order the presumptive maintenance award where the Court directs the payor spouse to pay temporary child support pursuant to CSSA. In the instant proceeding, this Court directed Plaintiff to pay the sum of $3,516.19 as temporary child support, in addition to the monthly carrying charges on the marital residence, in the sum of $7,466.95.

H.K. v. J.K., 32 Misc. 3d 1226(A), 936 N.Y.S.2d 58 (N.Y. Sup. Ct. 2011) (J. Drager)

 

 

Where the Husband's income exceeded $1,000,000 and the Wife's income was $0, the court applied the guideline amount and held that some additional amount of maintenance was appropriate based on the Husband's income over $500,000 and that the additional amount was $5,050 each month, necessary for the Wife's rental payment. Accordingly, the court increased the presumptive temporary maintenance award from $150,000 to $210,600 per year.

 

Khaira v. Khaira, 938 N.Y.S.2d 513 (1st Dep't 2012)

 

Payor spouse's gross income must include his bonus and could not be based on net income, which was subject to being manipulated through deductions and deferred compensation.  The lower court incorrectly applied the presumptive guideline amount and then added the direct mortgage payment on top of that without providing the explanation required for deviating from guideline amount.

 

S.C. v. J.R.C., Jr., 31 Misc. 3d 1239(A), 930 N.Y.S.2d 177 (Nassau Sup. Ct. 2011) (J. Maron)

 

Husband’s gross income totaled $105,397 and Wife’s gross income totaled $34,000; the court imputed additional income of $10,000 to the Wife.  The court’s award of temporary maintenance in the sum of $14,529.49 per year, was the presumptive guideline amount.  Additionally, husband was required to contribute $300 per month to the carrying charges for the marital residence. 

 

Osha v. Osha, 101 A.D.3d 481 (1st Dept. 2012)

 

There was no basis for disturbing the lower court's award of temporary maintenance when the lower court correctly applied the formula set forth in Domestic Relations Law § 236(B)(5–a)(c)(1). The court considered numerous statutory factors and found that the statutory presumptive or guideline amount of temporary maintenance of $1,959.86 per month was “unjust or inappropriate”.  The court set forth the amount of the unadjusted presumptive award, the factors it considered, and the reasons that it deviated from the presumptive award.

 

A.C. v. D.R., 32 Misc. 3d 293, 927 N.Y.S.2d 496 (Nassau Sup. Ct. 2011) (J. Falanga)

 

In keeping with the mandate of the statute but limiting its reach to only disposable income, the court deducted the carrying charges of $7,274 per month from defendant's income to yield the presumptive amount of temporary maintenance in the amount of $10,897 per month.

 

Woodford v. Woodford, 2012 NY Slip Op 07993 (2d Dept. 2012)

It is “reasonable and logical” to view the [temporary maintenance] formulas set forth in DRL §236(B)(5-a) “as covering all the spouse’s basic living expenses, including housing costs.”  (quoting Khaira v. Khaira, 93 A.D.3d at 200 (1st Dep’t 2012).  The court deleted the provision in the Suffolk County’s Supreme Court order that directed the husband to pay the wife “both temporary maintenance and 100% of certain carrying charges on the marital residence” and remitted the case to the Supreme Court for a new determination pursuant to DRL §236(B)(5-a) of those branches of the Wife’s motion for pendent lite relief as to maintenance and payment of the carrying charges on the marital residence. 

 

Jill G. v. Jeffrey G., 31 Misc. 3d 1209(A), 929 N.Y.S.2d 200 (Nassau Sup. Ct. 2011) (J. Janowitz)

 

The court awarded the presumptive maintenance award based on defendant's $500,000 annual income in the amount of $10,783.33 per month. The court did not find the presumptive amount to be unjust or inappropriate given the expenses set forth in the parties' Net Worth Statements and the settlement funds awarded to the parties’ child.

 

Martin v. Buckley, 33 Misc. 3d 1234(A), 946 N.Y.S.2d 67 (Monroe Sup. Ct. 2011) (J. Fisher)

 

The court reduced the presumptive award from $20,156 to $8,000 per year.  The deviated from the guideline amount because “the income redistribution contemplated by the presumptive award at these disparate income levels simply strips the wage earning spouse of most of what he earns and simply gives it to the non-wage earning spouse without any reference to established need or merit.” Using plaintiff's yearly projected gross income of $77,878 and the wife's imputed gross income figure of $10,000, the court awarded maintenance of $8,000 per year.  In reaching this amount, the court considered that “defendant's expenses include $200/month or $2,400/yearly for cigarettes, a habit plaintiff should not be required to support, the additional fact that any final maintenance award is likely to be durational in this 9 year marriage, and because of the tax burden on plaintiff, and other carrying charges he must meet for the marital residence which he commendably maintains.”

 

J.H. v. W.H., 31 Misc. 3d 1203(A), 930 N.Y.S.2d 175 (Kings Sup. Ct. 2011) (J. Thomas)

 

The presumptive amount of temporary maintenance in the amount of $26,708.26 per year would not be unjust or inappropriate after considering the parties’ expenses. 

 

R.L. v. C.L., 33 Misc. 3d 1226(A), 941 N.Y.S.2d 540 (Rensselaer Sup. Ct. 2011) (J. Lynch) 

 

The court denied the Husband's request for presumptive temporary maintenance of $58,292 per year and awarded him $26,000 per year.  The court imputed $52,000 income to the Husband and further deviated from the presumptive award because the Wife maintained health insurance, paid the carrying charges and cared for the parties' 21-year old daughter who has Aspersers Syndrome.

Margaret A. v. Shawn B., 31 Misc. 3d 769, 921 N.Y.S.2d 476 (Westchester Sup. Ct. 2011) (J. Connolly)

 

The court awarded the presumptive temporary maintenance in the amount of $6,217.42 per month where the court imputed $248,698 income to the husband and $0 to the wife because the wife was a full-time mother and housewife during a less than four-year marriage and the parties’ had three children which included a five-year-old and three-year-old twins.

 

 

Salai v. Salai, 34 Misc. 3d 232, 934 N.Y.S.2d 659 (Monroe Sup. Ct. 2011) (J. Fisher)

 

The court reduced the Wife's presumptive temporary maintenance award of $9,571 to $3,000 per month based on the parties' standard of living.

Fraterrigo v. Fraterrigo, 2011 WL 5325731 (Albany Sup. Ct. 2011) (J. Teresi) *

The court awarded the Wife presumptive temporary maintenance in the amount of $156 per week.

J.V. v. G.V., 33 Misc. 3d 1212(A), 939 N.Y.S.2d 740 (Nassau Sup. Ct. 2011) (J. Janowitz) 

 

The court reduced the Wife's presumptive temporary maintenance of $10,249 to $5,332 per month.

 

 

S.G. v. P.G., 32 Misc. 3d 1233(A), 936 N.Y.S.2d 61 (Nassau Sup. Ct. 2011) (J. Maron)

 

The court reduced the Wife's presumptive temporary maintenance award of $2,167 to $2,000 per month because the court directed the Husband to also pay the carrying charges.

 

Valentin v. Valentin, 32 Misc. 3d 1223(A), 936 N.Y.S.2d 62 (Queens Sup. Ct. 2011) (J. Jackman-Brown)

 

The court reduced the Wife's presumptive temporary maintenance award of $1,806 to $1,083 per month so that the Husband would have sufficient income to maintain his pre-divorce separate household.  The court also directed the Husband to pay $1,000 per month toward carrying charges for the marital residence.

 

C.K. v. M.K., 31 Misc. 3d 937, 923 N.Y.S.2d 817 (Rockland Sup. Ct. 2011) (J. Weiner)

 

The presumptive amount of temporary maintenance of $0 in favor of wife was unjust and inappropriate under temporary maintenance statute, so as to warrant an upward deviation to an award of $2,000 per month where the wife had been a stay at home mother throughout the marriage, her statement of net worth showed no income, and income “attributed” to wife from husband's business was a bookkeeping matter and was not income in the traditional sense.

 

 

Scott M. v. Ilona M., 31 Misc. 3d 353, 915 N.Y.S.2d 834 (Kings Sup. Ct. 2011) (J. Sunshine)

 

The presumptive amount of temporary maintenance was unjust and inappropriate warranting a deviation because under the formula, the shift in resources from the payor spouse to the payee spouse resulted in plaintiff having a substantial reduction in resources and left him unable to maintain his pre-separation household.  However, the court concluded that the resource shift was not a basis upon which to deviate from the presumptive award.  Instead, the court was required to consider the 17 factors listed in DRL §236B (5-a)(e)(1) to determine if the presumptive award was unjust and inappropriate.  After considering these factors, the court reduced the presumptive award of temporary maintenance from $3,097 per month to $2,055 per month.

 

 

 

 

The No-Fault Scoreboard

 

            Appellate decisions that reference the No-Fault Statute on irretrievable breakdown or lower court opinions

 

            Rinzler v. Rinzler, 97 A.D.3d 215 (3d Dept. 2012)(allowing case to go forward on the basis of Section 170(7) "is more likely to lessen the burden on both parties and promote judicial economy by obviating the necessity of a trial on the issue of fault" and noting the Governor stated, in signing the legislation, that its intent was to "reduce litigation costs and ease the burden on the parties in what is inevitably a difficult and costly process.")

 

            Tuper v. Tuper, 98 A.D.3d 55 (4th Dept. 2012)(while not holding directly on point, the Court, in a footnote suggested the assembly sponsor's comments during legislative debate "appear consistent with the fact that the Legislature, upon enacting the no-fault statute, did not amend Domestic Relations Law § 173, which reads:  "In an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce.")

 

Palermo v. Palermo, 100 A.D.3d 1453 (4th Dept. 2012) (affirming lower court’s decision that there is no right to a trial on the issue of irretrievable breakdown).

 

 

            Supreme Court opinions on the trial right under the No-Fault Statute

 

            1.         Decisions holding that no trial right exists

 

            Matter of Perricelli, 36 Misc. 3d 418 (Westchester Surr. Ct. 2012)(although trial courts which have examined the issue disagree whether a defendant in a properly-pleaded "no fault" divorce action may contest the grounds for the divorce, i.e., claim that the relationship is not irretrievably broken, this court agrees with those cases that hold that the defendant may not do so.  To hold otherwise seems utterly contradictory to the purpose of the no fault divorce statute).

 

            Filstein v. Bromberg, 36 Misc. 3d 404 (N.Y. Sup. Ct. 2012)(a party seeking divorce need only swear under oath that the marriage has been irretrievably broken for a period of six months).

 

            Townes v. Coker, 35 Misc. 3d 543 (Nassau Sup. Ct. 2012)(the Legislature did not enact a defense to this cause of action and courts cannot employ statutory construction to enact an intent that the Legislature did not express).

 

            Vahey v. Vahey, 35 Misc. 3d 691 (Nassau Sup. Ct. 2012)(agreeing with the opinion in A.C. v. D.R., 32 Misc. 3d 293 [Sup. Ct. Nassau Cty 2011] and adding plaintiff's sworn belief about the state of the relationship must be deemed sufficient, for if not the party seeking the divorce on this basis could be put through the same type of litigation regarding the martial relationship that this legislative addition was clearly designed to avoid).

 

            Palmero v Palmero, 35 Misc. 3d 1211A (Monroe Sup. Ct. 2011)(no right to a trial on the issue of irretrievable breakdown) (Affirmed by the 4th Dept.).

 

            A.C. v. D.R., 32 Misc. 3d 293 (Nassau Sup. Ct.. 2011)(plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on the grounds that it is irretrievably broken).

 

            2.         Decisions requiring a trial on the issue of irretrievable breakdown

 

            Strack v. Strack, 31 Misc. 3d 258 (Essex Sup. Ct. 2011)(continuing right to trial on Section 170(7) grounds under Section 173 of the Domestic Relations Law in Section 170(7), noting the Legislature failed to include anything in Domestic Relations Law § 170(7) to suggest that the grounds contained therein are exempt from this right to trial and had it intended to abolish the right to trial for the grounds contained within Domestic Relations Law § 170 (7), it would have explicitly done so).

 

            Schiffer v. Schiffer, 33 Misc. 3d 795 (Dutchess Sup. Ct. 2011)(concurring with Strack that Section 170(7) involves a triable issue of fact that the marriage is, in fact, irretrievably broken for at least six months).

 

What is a diligent job search?

A party's sincere and appropriate search for a position that matches his or her abilities and earnings capacity.

 

 

What activities may demonstrate a diligent job search?

            A.  a comprehensive, detailed, appropriate resume

            B.  a documented job search that may include details about the following:

                  1)  responses to job listings in newspapers and on the internet

                  2)  use of social media and other internet networking techniques

                  3)  direct contact with friends, former co-workers, and professional colleagues

                  4)  working with recruiters, search firms and headhunters

                  5)  direct contact with potential employers and hiring managers

                  6)  email and website inquiries

                  7)  actual job interviews.

 

 

What documentation may demonstrate a diligent job search?

                  1)  a calendar of job search efforts

                  2)  lists of contacts, inquiries, replies and interviews

                  3)  copies of emails, letters and phone log

 

 

What is an appropriate geographic radius for the party’s job search?

 

Szalapski v. Schwartz, 35 Misc. 3d 1219(A), 951 N.Y.S.2d 84 (Monroe Sup. Ct. 2011) (J. Dollinger)

The court held that a hearing was required to determine if the Father has met his burden under the following Tropea/Reece principles:

 

The Tropea/Reece factors. 

Under the combined Tropea/Reece test, the following factors would be evaluated to determine whether an applicant was required to engage a broad search for employment and/or relocate for employment:

 

(a)        the magnitude of the economic benefit resulting from the relocation for employment;

 

(b)        the quality of the relationships between the child and the obligated parent;

 

(c)        the impact of the relocation on the quantity and quality of the child's future contact with the noncustodial parent or other family members;

 

(d)       the degree to which the custodial parent's and the child's life may be enhanced economically by the income derived from the relocation;

 

(e)        the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements;

 

(f)        the supporting spouse's business and familial ties to the community and the length of time in which the supporting spouse has resided in the community;

 

(g)        monetary considerations which would impose an undue hardship upon the supporting spouse if he or she were forced to relocate for employment;

 

(h)        the geographic distance between the respective communities and the methods of travel between the communities; and

 

(i)         the severity of the burden created by a downward modification of the support payments would have on the obligee spouse.

 

In addition, this court includes the catch-all phrase, commonly used by all courts: that the factors “include, but are not limited to” those set forth above. These factors, merged from Torpea and Reece, provide a reasonable foundation to evaluate whether an applicant's search for employment outside his local area, is “diligent.”

 

At the hearing, the Father will have the burden to demonstrate that:  (1) he could not obtain employment in a location in which he would nonetheless be able to maintain a reasonable relationship with his youngest son; and (2) the benefit of the increased support, occasioned by finding a job in a new location, would be outweighed by the deleterious impact on his relationship with his son and that no alteration in the visitation schedule could accommodate his visitation with his son.

 

 


Has the party made a diligent effort to find comparable employment or employment with a comparable earning capacity?

 

Insufficient Job Search

Sufficient Job Search

Ralph S. v. Laura S., 3 Misc. 3d 1105(A), 787 N.Y.S.2d 680 (Orange Fam. Ct. 2004)

  •  single search diary (2 years before)

 

O'Brien v. McCann, 249 A.D.2d 92, 671 N.Y.S.2d 458 (1st 1998)

  • 5 vague and unsubstantial entries

 

Davis v. Davis, 197 A.D.2d 622, 602 N.Y.S.2d 672 (2d Dept. 1993)

  • field with lesser pay

 

Y.G. v. A.T., 25 Misc. 3d 1223(A), 906 N.Y.S.2d 777 (Kings Sup. Ct. 2009) (J. Thomas)

  • conclusory terms

 

Muselevichus v. Muselevichus, 40 A.D.3d 997, 836 N.Y.S.2d 661 (2d Dept. 2007)

  • didn't act with sufficient diligence

 

Devane v. Devane, 13 Misc. 3d 1205(A), 824 N.Y.S.2d 753 (Rockland Sup. Ct. 2006) (J. Weiner)

  • 3000 resumes, computer records
  • Few job interviews and no details about the interviews or employment efforts
  • Internet not fruitful

Preischel v. Preischel, 193 A.D.2d 1118, 598 N.Y.S.2d 642 (4th Dept. 1993)

  • 200 resumes
  • answered numerous ads
  • registered with 15 employment agencies

 

Ketcham v. Crawford, 1 A.D.3d 359, 767 N.Y.S.2d 47 (2d Dept. 2003)

  • former TV reporter made numerous efforts SOLELY in his field

 

Simmons v. Simmons, 26 A.D.3d 883, 809 N.Y.S.2d 709 (4th Dept. 2006)

  • consulted a head hunter and other business associates
  • consulted the internet and other services
  • made written and oral applications

 

Glinski v. Glinski, 199 A.D.2d 994, 606 N.Y.S.2d 468 (4th Dept. 1993)

  • used numerous letters, newspaper ads and job interviews in and outside Buffalo

 

Rahn v. Rahn, 768 So.2d 1102 (Ct.App.Fla.2000)

  • registered with employment agencies and mailed 60 resumes

 

 

 

IMPUTATION OF INCOME -

ISSUES AND PROOF FOR THE COURTS

THE GENERAL RULE

A parent's child support obligation is not necessarily determined by his or her current financial condition, but rather by his or her ability to provide support. The court is not bound by a party's actual reported income in applying the basic child support obligation, and instead could use that party's actual earning capacity or impute an amount onto the gross income reported by the party. Cites omitted

SOURCES FOR IMPUTATION

            1.         Family Support 

Baumgardner v Baumgardner, 951 N.Y.S.2d 64 (2d Dept. 2012)(access to — and receipt of — family money" as a factor in imputation of income of $75,000)

Anonymous SR v. Anonymous GR, 17 Misc. 3d 1116A (Nassau Sup. Ct. 2007)(husband's vacations and family support are evidence to support imputed income of $195,000 a year even though husband claimed he was too psychologically ill to work).

Rostropovich v. Guerrand-Hermes, 18 A.D.3d 211 (1st Dept. 2005)(trial court properly imputed income to the husband based on a pattern of gifts from his father, as compared to the non-imputed sporadic gifts from the wife's father).

Mojdeh M. v Jamshid A., 36 Misc. 3d 1209A (Kings Sup. Ct. 2012)(income imputed based on monthly gift from husband's sister but the court permitted a one-year re-evaluation of the husband's income because he testified that he "could earn" as much as $60,000 annually)

Contrast Rooney v Rooney, 92 A.D.3d 1294 (4th Dept. 2012)(wife has serious health issues and the court properly declined to impute full-time minimum wage income to plaintiff and refused to impute income based on sporadic gifts, finding they were not regular and expected).

  1. Employer paid benefits

            Matter of Solis v. Marmolejos, 50 A.D.3d 691 (2d Dept. 2008)(imputing income based on employer-paid car expenses).

 

  1. Statistical Evidence of Workplace Employment

 

            Matter of Kasabian v Chichester, 72 A.D.3d 1141(3d Dept. 2010)(magistrate concluded that an individual with the commercial driver's license could earn "average amount earned by a general freight trucker" and had the ability to earn an annual income of at least $38,690, the average amount earned by a general freight trucker as established by statistics from the United States Department of Labor).

  1. Vocational experts

            Lago v. Adrian, 93 A.D.3d 697 (2d Dept. 2012)($80,000 income imputed to non-working wife based on expert report of New Jersey based vocational education counselor, who testified on the basis of labor statistics and job market conditions, even though he never interviewed the wife)

            Spreitzer v. Spreitzer, 40 A.D.3d 840 (2d Dept. 2007)(evidence of earning potential based on degree and license, expert testified the nurse practitioner could earn $78,000 annually, even though it exceeded her actual reported income as a part-time NP and the same expert valued the degree and her license as an NP).

            McAuliffe v. McAuliffe, 70 A.D.3d 1129 (3d Dept. 2010)(lower court imputed income of $50,000 annually to the wife but on appeal, the court rejected the imputation because the earnings were before the wife left employment to care for her children and said the lower court erroneously relied on a court appointed evaluator who testified that the wife, with her degrees could earn $60,000 annually and finally concluded that the record did not support an imputation in excess of the applicable minimum wage)

  1. The danger of lack of credibility — expenses v. income

            R.L. v J.L., 34 Misc. 3d 1236A(Richmond Sup. Ct 2012)(Court imputed $100,000 in income to husband, a licensed podiatrist, even though record indicated business only produced $72,490 in annual income because expenses in statements of net worth indicated annual expenses in excess of $100,000).

            Mosso v Mosso, 84 A.D.3d 757 (2d Dept. 2011)(the court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives and where a party's account is not believable, the court may impute a true or potential income higher than alleged). 

 


 

Resources used for Imputing Income

 

1.         Occupational Outlook Handbook.

 

Con:  Discussion of the occupation’s outlook is described on a national basis. 

         http://www.bls.gov/ooh/.

 

Bureau of Labor Statistics.

http://www.bls.gov/

http://www.labor.ny.gov/stats/lswage2.asp

https://labor.ny.gov/stats/lslma.shtm

 

Pro:  The Bureau of Labor Statistics and NYS Dept. of Labor (NYS uses same data from national survey, but breaks data down into specific counties). National BLS reports data from larger regions.

Pro:  The national BLS can report data into 10th, 25th, 50th, 75th and 90th percentiles.

 

Con:  The NYS BLS reports data in three percentiles: Entry level (10th percentile), Median (50th percentile) and Experienced (usually about the 75th percentile).

Con:  The job titles have been used for more than 60 years and many are outdated.  Does not contain many current job titles.

 

 

2.         Economic Research Institute.

 

Con:  Cost for this subscription is $2,500 per year.

          http://www.erieri.com/

 

 

3.         Salary Surveys from Professional Organizations And Salary Survey Websites.

 

Con:  Many of these surveys are self-reported, i.e., the information comes directly from the professional.  For example, psychologists may misrepresent their earnings on a survey for the American Psychological Association or the respondent pool may be distributed unevenly.

 

Con:  Can be time consuming to identify appropriate organizations in Internet search.  Difficult to know if all such organizations are appropriate, credible and objective representatives of their membership and if the data provided is reasonably reliable.  But following discussions, articles and data from multiple sources can offer valuable insights.

 

Con:  Unless you are a vocational expert, it is difficult to synchronize these data sources and surveys.

 

Too many to list, however, examples of these websites:

http://psychology.about.com/lr/psychology_salaries/1438391/3/

http://www.aicpa.org/career/salaryinfo/pages/hiring%20trends%20and%20salaries.aspx

http://www.socialworkers.org/

http://socialworklicensemap.com/social-worker-salary/

 

 

 

4.         List of On-Line Websites For Salary Surveys.

 

Con:  Not statistically reliable; although vocational experts might refer to these on-line websites as one of their resources.

www.dice.com

www.execunet.com

www.ladders.com

www.cbsalary.com (Career Builder)

www.salaryexpert.com

www.salary.com

www.glassdoor.com

www.payscale.com (more cumbersome to use, salaries reported are often lower than other sites)

 

Additional Source: www.LinkedIn.com (various professions have their own discussion groups and job postings on LinkedIn; too many groups to list, but these groups can offer insights when combined with other sources).

 

5.         Labor Market Survey to Determine What Jobs Are Available.

 

Con:  Can be one resource used by a vocational expert.  Potential objection that Vocational Expert Witness is relying on hearsay; however, the labor market research/survey, is a standard practice in vocational evaluation methodology.  The expert’s survey findings are used in other types of employability cases such as worker’s compensation, social security disability hearings.  It is one of many sources used to form an opinion.

 

A vocational expert may choose not to list whom he or she spoke to in a report in order to maintain anonymity.  Instead, a vocational expert may bring his or her notes from the conversation to the trial. 

 

 

6.         Internet Job Postings

 

Con:  It can often be just come-ons by recruiters. 

 

Con:  Often they do not list the salary or wages.  Also look on county job sites who often list job openings.  These sites only give a flavor of activity.  Job postings are not accurate reflections of employment opportunities and potential fit of a job applicant.  That is an individual assessment and should be compared to an expert’s local labor market survey.

 

www.dice.com

www.executnet.com

www.ladders.com

www.careerbuilder.com

www.indeed.com

www.monster.com

www.job.com

www.snagajob.com

www.beyond.com

 

Identify companies in industries that would employ a person in specific occupations. Search those company websites for job postings.

 

 

7.         Business Magazines and Articles in Professional Publications

 

Use your internet research skills.  Start with specific search questions.  If insufficient responses, broaden your search.  You may find unexpected resources that will give you more specific information.

 

For example, there used to be more nursing jobs than are currently available due to the health industry's concern about the future of government controls of health care.  There is conflicting information about this and it changes with the political climate in healthcare these days.

 

Examples of sites to research for nurses:

http://scrubsmag.com/the-nursing-job-market-overview/

http://www.nursingeconomics.net

www.nurse.com

www.nin.org/ninjournal

www.nursingworld.com

 

For an assessment of future of an occupation such as a welder, you may need to go through a few pages on your search.  For example, what is the future of the welding industry?  Is this information helpful in forming a well-supported opinion about someone’s earning capacity?  This may be just one of multiple sources used including the U.S. and NYS Departments of Labor.

http://www.weld-ed.org/NR/rdonlyres/363B5036-3FB6-4631-B0DE-30B91EB82B88/0/welded_excutive_summ.pdf

OR

http://www.apa.org/workforce/publications/09-salaries/index.aspx

 

 

Same process for other occupations.  Some sites are more self-serving than others.

 

Comment:  The standard used to determine what comprises a genuine diligent job search for comparable employment is not defined. The evaluated party’s documentation is key!

 

 

Some case law exists:

https://www.lexisnexis.com/community/workerscompensationlaw/blogs/workerscompensationlawblog/archive/2011/10/14/diligent-search-for-work-or-just-diddling-around.aspx

http://www.cals.ncsu.edu/career/site/filelibrary/job_search_tips_in_the_competitive_job_market.pdf