Topics

On this page, we will, from time to time, post brief notes on current developments and other topics of interest. Give us a call if you’d like to discuss anything which interests you.

Legal Fees in Failed Relocation Case

October 2006

We know that the stakes in relocation cases are high, but as a result of one of our recent cases they may be even higher than previously thought. In Papasoff v. Cockrell, a case in which we represented the father, the mother had sought permission to move from Manhattan to Colorado with the parties’ child. The trial court denied permission. Nevertheless, she bought a house, enrolled the child in school and moved there. On behalf of the father, we sought the child’s return.

After what amounted to a custody trial, the court ordered the mother to return with the child, and if she did not, the court directed that custody of the child be given to the father.

In light of our success, we sought further relief for the father: an order requiring the mother to reimburse the father for all of the legal fees he had incurred. The trial court awarded the father only a portion of his fees, so we appealed. The appellate court agreed with us and directed the mother to reimburse the father for all of his fees, and left the door open for the father to also recover from the mother the fees he had incurred in connection with the appeal itself.

Linking Equitable Distribution and Fault?

October 2006

One of the generally accepted rules of New York matrimonial litigation has been that, unless there has been egregious fault (and by that we mean conduct on the level of violent felonies, such as attempted murder), the degree of one party's marital fault would have no effect on the equitable distribution of marital property or on the amount of support awarded. In other words, courts generally have not considered who is to blame for the end of a marriage, or why, in deciding what percentage of the marital assets to award to each of the parties or in considering spousal support.

Until, perhaps, now. In a remarkable decision, Justice Silbermann (who, as the Statewide Administrative Judge for Matrimonial Matters, wields much influence) appears to have altered the rule. In DeSilva v. DeSilva, the court, relying on culpable conduct which clearly did not rise to the level of what would previously have been considered egregious fault, tied the conduct to the distribution. Significantly, in so ruling, while the court did try to fit the case into the usual rule (finding that the conduct "rises to the level of egregious fault"), it also supported its ruling by citing cases from other jurisdictions which have historically linked fault with distribution. In approaching its decision this way, was the court signaling a new way of looking at this issue in New York? If this case is followed by others, settling or trying matrimonial cases will become much more complicated.

Child Support In “High Income” Cases

October 2006

The Child Support Standards Act provides (among other things) that a fixed percentage of annual income be paid by the non-custodial parent to the custodial parent as child support. The percentage varies with the number of children, but only applies up to the first $80,000 of the parents’ combined annual income. The question which often arises is – what to do where the parents’ income exceeds $80,000. The CSSA says that in such cases child support should be determined through consideration of certain enumerated factors and/or the applicable child support percentage. Based on that provision, many courts have determined child support where combined income exceeds $80,000 either by applying the applicable child support percentage to the income in excess of $80,000 (sometimes applying a “cap” on the excess income), or by determining the child’s actual needs.

However, in two cases decided earlier this year, Culhane v. Holt and Brim v. Combs, appellate courts ruled that in "high income" cases the appropriate determination of child support "should be based on the child's actual needs and the amount that is required for the child to live an appropriate lifestyle, rather than the wealth of one or both parties."

In view of these decisions it is questionable whether the trial courts will continue, in “high income” cases, to simply apply the applicable child support percentage to income above $80,000. We also wonder how the courts will determine the “appropriate lifestyle” of a child and what they will do when there is a significant discrepancy between the child’s actual needs and such an “appropriate lifestyle.” We are following this issue carefully.

Grounds – Constructive “Social” Abandonment

October 2006

One of our lawyers (Larry Rothbart) was the principal author of the report of the Matrimonial Law Committee of The Association of the Bar of the City of New York, which advocated passage of a law that would permit spouses in New York to get divorced without first entering into a separation agreement or a finding of “fault” against one of the spouses. While it now appears that New York, which is the only state in the country that does not have a true “no fault” divorce law, will finally be getting such a law, it may still be another year or two before it is enacted.

Under the divorce statute, “abandonment” has been a “fault” ground for divorce since 1967. That’s right, before 1967, even if you had been physically abandoned by your spouse, that was not sufficient to get a divorce! (Prior to 1967, abandonment and its judicially imposed counterpart, “constructive” abandonment, were only grounds for a separation. Under the “constructive” abandonment definition, even if your spouse had not physically abandoned you, if for a certain period he or she had, without justification, refused to engage in sexual relations with you despite your repeated requests, you could get a judgment of separation.) When the divorce laws changed in 1967 to add abandonment as a ground, “constructive” abandonment came with it, but it was still limited to sexual abandonment.

Recently, the definition of “constructive” abandonment was broadened. Last year, in C.P. v. G.P., a Nassau County judge permitted a divorce where one spouse had “constructively” abandoned the other by refusing to socialize with that spouse for more than a year. That decision was soon followed by a Queens County judge in Michaelessi v. Michaelessi. We think that until the “no fault” law is passed, creative lawyers and responsive judges will continue to find ways to permit divorces in appropriate cases.

Reduction of Child Support

October 2006

Our laws permit parties to seek an upward or downward modification of a “final” child or spousal support award (even after the parties have agreed in writing to the amount of support or a judge has set the amount of support). However, in order to modify an agreement, there must be a showing of extreme hardship, and in order to modify a judgment or order, there must be a substantial, unanticipated change of circumstances.

In a recent case, Lonsdale v. McEwen, a father and mother agreed that the father would pay the mother a fixed amount of child support, but if his income decreased below a certain amount, his child support obligation would be reduced to a lesser fixed sum. The father later lost his job, was unemployed for two years, and then found a new job at 15% of his former high salary, which was well below the threshold set in the agreement. He sought a reduction in child support to an amount below the lesser amount set forth in the agreement, arguing that his loss of his job and substantially reduced income was not anticipated at the time of the agreement. The mother argued that the agreement did in fact anticipate a reduced income for the father, and that the child support should therefore be reduced to the lower amount which the parties had fixed in their agreement.

The trial judge ruled in the mother’s favor. However, in a 3-2 decision the appellate court reversed, holding that while the parties had anticipated the possible loss of the father’s job, they had not anticipated the fact or consequences of his prolonged period of unemployment or the substantial reduction in his salary.

Will this decision be appealed, or does it portend the opening of a new door for those seeking a modification of support? Time will tell.