Family Law Review, Spring 2008
Recent Legislation, Decisions, and Trends
By Wendy B. Samuelson
Same-Sex Marriage Update
Maine and New Hampshire are the fifth and sixth state, respectively, to permit same-sex marriage
Maine and New Hampshire join Massachusetts. Connecticut, Iowa, and Vermont to total six states that permit same-sex marriage.
On May 6, 2009, Maine’s governor signed into law a freedom to marry bill which was approved by the House and Senate. Committed same-sex couples in Maine will be able to start getting married 90 days after adjournment of the legislative session, expected around the end of June.
On June 3, 2009, New Hampshire became the third state to move past civil unions to same-sex marriage. The Governor signed into law the bill that was approved by the state House and Senate. Gay couples cart apply for marriage licenses starting January 1, 2010 when the law goes into effect in New Hampshire.
Same-sex marriage progress in New York
On April 16, 2009, New York Governor David Paterson introduced a marriage equality bill to the New York Assembly and Senate. The Assembly passed the bill for the second time (it passed in 2007 also), and as of June 24, 2009, the bill was referred to. the Senate Rules Committee. It now awaits Senate action, which was expected by the end of the legislative session in June. However, because of a stalemate on the issue, the Senate is still considering the bill.
Massachusetts is the first state to challenge the federal Defense of Marriage Act (DOMA)
On July 8, 2009, Massachusetts Attorney General Martha Coakley filed suit against the U.S. government, the U.S. Department of Health and Human Services, and the U.S. Department of Veterans’ Affairs seeking federal marriage benefits for 16,000 legally wed gay couples, claiming that Section 3 of the DOMA is unconstitutional and violates the 10th Amendment of the U.S. Constitution because it is overreaching, discriminatory and interferes with the state’s authority to define and regulate marriage. (Section 3 of DOMA bars the federal government from recognizing same-sex marriages performed lawfully by states.) Currently, while the State of Massachusetts recognizes gay marriage; those couples cannot take advantage of approximately 1,100 federal rights related to marriage, including, but not limited to, equal treatment in the areas of Social Security, income tax credits, employment benefits, retirement benefits, health insurance benefits, and the right to bury a spouse in a veterans’ cemetery.
Author’s note: This is potentially a case for the U.S. Supreme Court if the Obama administration does not change the DOMA before then. The outcome of this
landmark litigation could change the face of gay marriage laws forever
Recent Legislation
New CPLR 5205(o), effective May 4, 2009: New exemption provisions not applicable to the collection of support
As discussed in my Winter 2009 column, effective January 1, 2009 there were many changes to Article 52 of CPLR regarding property that is exempt from the collection of money judgments. See CPLR 5205 (1) (exemption for first $2,500 in a bank account which contains funds that were directly or electronically deposited within the last 45 days) through (n), CPLR 5222 (i) (judgment debtor’s banking institution account equal to or less than 240 times the federal or state minimum hourly wage, whichever amount is greater, cannot be restrained, except where the court determines that any part of said sum is not necessary for the judgment debtor and his/her dependents reasonable needs), CPLR 5230(a) and CPLR 5232(e).
CPLR 5205(o) creates an exception to this new rule for child support and maintenance collection as follows:
The provisions of subdivisions (1), (m) and(n) of this section do not apply when the state of New York, or any of its agencies or municipal corporations is the judgment creditor, or if the debt enforced is for child support, spousal support, maintenance or alimony, provided that the restraining notice or execution contains a legend at the top thereof, above the caption, in sixteen point bold type with the following language: “The judgment creditor is the state of New York, or any of its agencies or municipal corporations, AND/OR the debt enforced is for child support, spousal support, maintenance or alimony.”
See subdivision (1) for similar changes.
Likewise, the following additions mirrored CPLR5205(o)
CPLR 2222 (k) added regarding subdivisions (h), (i)and (j).
CPLR 2222-a (i) added.
CPLR 5230 (a) amended to include such language.
CPLR 5232 (h) added (subdivision (e) amended to add similar language).
DRL § 177 repealed and new DRL § 255 is added, effective October 9, 2009: COBRA language
DRL § 255 provides that prior to signing a judgment of divorce or separation, or a judgment annulling a marriage
NYSBA Family Law Review 1 Summer/Fall 2009 I Vol. 41 { No. 2
or declaring the nullity of void marriage, the court shall ensure that:
- Both parties have been notified, at such time and by such means as the court shall determine, that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party’s health insurance plan, depending on the terms of the plan. Provided, however, service upon the defendant, simultaneous with the service of the summons of a notice indicating that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party’s health insurance plan, depending on the terms of the plan, shall be deemed sufficient notice to defaulting defendant.
- If the parties have entered into a stipulation of settlement/agreement on or after the effective date of this section resolving all of the issues between the parties, such settlement/ agreement entered into between the parties shallcontain a provision relating to the health care coverage of each party; and that such provision shall either: (a) provide for the future coverage of each party, or (b) state that each party is aware that he or she will no longer be covered by the other party’s health insurance plan and that each party shall be responsible for his or her own health insurance coverage, and may be entitled to health insurance on his or her own through a COBRA option, if available. The requirements of this subdivision shall not be waived by either party or counsel and, in the event it is not complied with, the court shall require compliance and may grant a thirty day continuance to afford the parties an opportunity to procure their own health insurance coverage.
Author’s note: Good riddance to a law that did not make sense. Practitioners should add this new COBRA language to the summons to ensure that notice is given.
DRL § 236(B)(2) amended to add subdivision b, effective September 1, 2009: Automatic restraining orders upon the commencement of a matrimonial action
Simultaneously upon the service of the summons, the plaintiff shall serve upon the defendant a copy of the automatic restraining orders set forth in paragraph (b), which binds both parties during the pendency of the action unless modified by the parties in writing or by the court. (The plaintiff is bound by the automatic order upon the filing of the summons, and the defendant is bound upon the service of the summons.)
The automatic restraining order language is as follows:
(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any .way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keough ac-counts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court. (3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreason-ably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reason-able attorney’s fees in connection with this action. (4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical hospital and dental insurance coverage in full force and . effect. (5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.
Court of Appeals Roundup
Non-custodial parent has no control over decisions regarding child’s education
Fuentes v. Bd. of Educ of City of New York, 12 NY3d 309, 879 NYS2d 818 (2009)
The non-custodial parent of a blind child who received special education services to accommodate his disability did not have the right to request a hearing under the federal Individuals with Disabilities Education Act (IDEA) to review the adequacy of those services, because the former wife had sole custody of the child and their divorce decree and custody order were silent on the issue of the right to make decisions regarding the child’s education. The court mentioned that although the non-custodial parent has the right to be informed about the child’s education, unless the custody order expressly permits joint decision making authority or designates particular authority with respect to the child’s education, the non-custodial parent has no right to “control” educational decisions.
No recoupment for maintenance payments to former wife
Mahoney-Buntzman v. Buntzman, 12 NY3d 415 (2009)
The wife was not entitled to a 50% credit against equitable distribution for the husband’s payment to maintenance to his former wife. See also Johnson v. Chapin, 12 NY3d 461 (2009). The court noted in dicta that child support to a former spouse is also not one of those types of liabilities entitled to recoupment. “The parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end.”
The wife was not entitled to a credit against equitable distribution for payments made during the marriage for the husband’s student loans which were taken and repaid during the marriage. Here, the husband’s degree was found to confer no economic benefit, and therefore had no value. Interestingly, in a footnote, the court commented that if the student loan were still outstanding at the time of the divorce, it may have been prudent for the court to make the husband solely responsible for the repayment of said loan.
Stock in the husband’s business acquired during the marriage is properly valued on the date of the divorce trial, for the purpose of calculating an equitable distribution award. Although the husband played a significant role in changing the direction of the business and in its expansion post-commencement, the appreciation in value of the stock was also due to significant contributions of others.
Where the husband received $1.8 million for the sale of stock in two corporations and reported it on the par-ties’ joint income tax return as self-employment business income, the trial court properly exercised its discretion when it classified the money received by the husband as marital property. A party to a litigation may not take a position contrary to a position taken in an income tax return, which is a sworn affidavit.
Author’s note: Aren’t child support and maintenance obligations to a former spouse in essence a separate property debt, and if paid with marital funds, the non-obligor spouse should receive a credit? The court seems to define it as a living expense rather than a debt.
Credits for overpayment of maintenance
Johnson v. Chapin, 12 NY3d 461 (2009)
The husband was entitled to a credit in calculating the equitable distribution award for the amount that his pendente lite spousal support payments exceeded final spousal maintenance award. ($18,000/mo. pendente lite award less $6,000/mo. final award.) However, the husband was not entitled to a credit for child support overpayments since it is against public policy.
Enforcement of judgments: Lien gaps
Gletzer v. Harris, 12 NY3d 468 (2009)
With the amendment of CPLR 5014 in 1986, a judgment creditor can obtain a lien renewal before it expires by commencing a plenary action and obtaining a lien renewal judgment up to one year before the expiration of the ten-year lien period. If a lien renewal judgment is obtained in this manner, the lien is renewed for an additional ten-year period on the date the first ten-year period expires. In this case, because the plaintiff (judgment creditor) obtained his renewal judgment after the expiration of the first ten-year period, it took effect on the date it was issued, thus leaving a “lien gap” between the date the first lien expired and the date of the renewal judgment, even though he commenced his renewal action one day before the expiration of the first lien period.
Author’s note: Whether you are enforcing a judgment for a client or for your own counsel fees, be aware of the expiration of the lien, and make the motion as soon as the ninth year of the judgment begins, in order to permit the court enough time to make its decision and not have the “lien gap” problem.
Other cases of interest
Equitable distribution of medical degree and license
Mairs v. Mairs, 61 AD3d 1204, 878 NYS2d 222 (3d Dep’t 2009)
The Third Department increased the wife’s award of the husband’s medical degree, license and practice, which were earned and developed during the parties’ 20-year marriage, from 15% to 30%. While the husband pursued his studies and residency, the wife not only gave birth to the parties’ seven children, but also continued to provide the principal source of the family’s income. Thereafter, when the husband entered private practice in New York, the wife assisted with the management of the practice by handling billing, while at the same time continuing to commute to her job as a tenured professor at a college in Philadelphia.
The court below did not abuse its discretion by imposing a 4.2% interest rate on the amount the husband owes the wife for her share of the marital assets. In a footnote, the court noted that the court below failed to explain its deviation from the statutory 9% interest rate.
The wife’s maintenance award was increased from $400/week for seven years to $500/week for the same period of time based on the husband’s earning $300,000 per year and his high future earning potential, and the wife’s earning not more than $50,000/year, her chronic asthma and her inability to earn significantly more in the future.
Author’s note: This case represents the largest contribution made by a spouse to the husband’s medical career, and yet she was only awarded 30% of her spouse’s degree or license. It appears from the recent cases that the trend is to award less than 50% of a license or degree, probably to make up for the inequity of valuing it in the first place.
In the wake of Prichep v. Prichep, 52 AD3d 61, 858 NYS2d 667 (2d Dep’t 2008)
As discussed in my previous columns, the Second Department in Prichep held that pursuant to DRL § 237, an application for interim counsel fees by the non-monied spouse in a divorce action should not be denied or deferred to trial without good cause, articulated by the court in a written decision “because of the importance of such awards in the fundamental fairness of the (divorce) proceedings.” In my previous columns, I reported several cases that followed Prichep, including but not limited to Mueller v. Mueller, 61 AD3d 652, 878 NYS2d 74 (2d Dep’t 2009), $10,000 interim counsel fee award modified to $25,000;and Penavic v. Penavic, 60 AD3d 1026, 877 NYS2d 118 (2d Dep’t 2009) order deferring wife’s request for $250,000 in interim counsel fees to the trial court modified by awarding wife interim counsel fees of $100,000 without prejudice to make a future application for further counsel fees. Commencing in April 2009 and thereafter, another case, Meltzer v. Meltzer, 879 NYS2d 722 (2d Dep’t June 2, 2009) followed the Prichep principle. Judge Falanga’s award of an additional $35,000 in interim counsel fees was affirmed, based on the disparity of income between the parties and the husband’s obstructionist conduct.
Modification of support
Awaad v. Awaad, 62 AD3d 695, 880 NYS2d 292 (2d Dep’t 2009)
Family Court’s order granting the father downward modification of his child support obligations was re-versed on appeal. The father’s loss of employment is not enough to show a substantial and unanticipated change of circumstances. Rather, he must present evidence of his good-faith efforts to obtain new employment commensurate with his qualifications and experience.
Tomczyk v. Tomczyk, 61 AD3d 1029, 876 NYS2d 726 (3d Dep’t 2009)
Former wife did not have to allege a change in circumstances in order to be entitled to a hearing to modify spousal support where she alleged that she was unable to be self-supporting and is below the poverty guidelines.
Summer camp considered as child care expenses
Micciche v. Micciche, 62 AD3d 673, 879 NYS2d 502 (2d Dep’t 2009)
The court below properly found that summer camp expenses for the children constituted child care expenses within the meaning of DRL § 240 (b)(c)(4), and properly directed the payor spouse to pay a pro rata share of those expenses . The Appellate Division cited this author’s Cohen-Davidson v. Davidson, 255 AD2d 414, 680 NYS2d 564 (2d Dep’t 1998) which is the original case that stands for this proposition.
Relocation
Impastato v. Impastato, 62 AD3d 752, 879 NY52d 509 (2d Dep’t 2009)
The court properly denied the defendant’s motion for permission to relocate to Texas with the parties’ two children since she did not establish, by a preponderance of the evidence, that the proposed relocation would be in the children’s best interest. Rather, the interstate move would have an adverse impact on the quality and quantity of the children’s future contact with their father and would not guarantee the children any emotional, educational, or economic benefit.