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New York Divorce and Family Law

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The definitive site on the web for New York Divorce and Family Law.

Thursday, M ay 1, 2008 B its and Bytes ™ Volum e 4, N um ber 11

Welcome to B its and Bytes ™ our elec tronic new sletter published for the bench and bar as a public service by Joel R .
B randes C onsulting Services, Inc., the ultim ate source for litigation support and paralegal services for m atrim onial and fam ily
law attorneys throughout the United States.

W e teach attorney’s about all aspects of divorce and fam ily law , as w ell as how to prepare for and try su c h c a se s . W e act as
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Joel R . B randes is the author of the nine volum e treatise Law and the Fam ily N ew York, and Law and the Fam ily N ew York Form s
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B . B randes, is Vice-President of Joel R . B randes Consulting Services, Inc. and a m em ber of the Board of Editors of The New
York Fam ily Law M onthly. H e m aintains his office for the practice of law in New York, N ew York. Joel R . B randes, B ari
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Second Departm ent R em oves Law Guardian Failure to Com ply W ith Rules of C hief Judge

In Cervera v B ressler, --- N .Y.S.2d ----, 2008 W L 1748331 (N .Y.A.D . 2 Dept.) the parties' entered into a stipulation, later so-ordered
by the court, in w hich they agreed to joint custody, w ith prim ary physical custody w ith the m other, visitation to the father
on alternate w eekends and one w eekday per w eek, and the rem oval of certain restrictions on visitation that had been im posed
tem porarily. In July 2005, the attorney for the child m oved by order to show cause for supervised visitation, based on various
allegations by the m other, including one allegation of sexual m olestation. The sexual m olestation allegation w as subsequently
determ ined to be unfounded. Although a hearing on the m otion w as scheduled at least once, it never took place, and visitation
by the father rem ained supervised since July 28, 2005. The Appellate D ivision held that supervised visitation w as appropriately
required only w here it is established that unsupervised visitation w ould be detrim ental to the child and because no hearing w as
ever held on the order to show cause visitation rem ained supervised, and telephone contact betw een father and daughter w as
m onitored, for about 2 1/2 years, based solely on the hearsay allegations of the m other. These consisted of the allegations of
m olestation, w hich w ere determ ined by O C FS to be unfounded, and stories of various incidents, the details of w hich w ere
disputed by the father and, w ere insufficient to show that unsupervised visitation w ould be detrim ental to the child's w ell-being.
U nder these circum stances, it w as unacceptable to the Second D epartm ent that the hearing had not been held, although ordered
m ore than 2 1/2 years earlier. This arrangem ent resulted in the violation of the father's right to reasonable access and visitation.
It also held that the court should not have required the father to pay the cost of supervising his visitation w ithout determ ining
the econom ic realities, including his ability to pay and the actual cost of each visit. Finally, it held that the court im providently
exercised its discretion in denying the father's m otion to rem ove Joshua D . Siegel as the attorney for the child. It referred to
the new rules that had been recently prom ulgated by the C hief Judge and stated that an attorney for the child should not have
a particular position or decision in m ind at the outset of the case before the gathering of evidence. On the other hand, attorneys
for children are not neutral autom atons. After an appropriate inquiry, it is entirely appropriate, indeed expected, that an attorney
for the child form an opinion about w hat action, if any, w ould be in a child's best interest. An attorney for the child is not an
investigative arm of the court. While attorneys for the children, as advocates, m ay m ake their positions know n to the court orally
or in w riting (by w ay of, am ong other m ethods, briefs or sum m ations), presenting reports containing facts w hich are not part
of the record or m aking subm issions directly to the court ex parte are inappropriate practices. H ere, in the order to show cause
, and the affirm ation in support, as w ell as in every affirm ation subm itted thereafter, the attorney for the child included facts
w hich w ere not part of the record, but w hich constituted hearsay gleaned from the m other. This behavior on the part of the
a ttorney for the child, as w ell as his repeated ad hom inum attacks on the father's character, w as both unprofession a l a n d
im proper, as it am ounted to the attorney for the child acting as a w itness against the father, in violation of the Rules of the Chief
Judge (see 22 N YC R R 7.2[b] ).

Law Guardian R ebuked for Failure to Follow R ules of C hief Judge and W ishes of C hild

In M atter of D elaney v. Galeano,--- N .Y.S.2d ----, 2008 W L 1823048 (N .Y.A.D . 2 Dept.) the attorney for the child appealed from an
order of the Fam ily C ourt, w hich, after a hearing, denied his m otion to hold the respondent m other in contem pt. U pon receipt
of a copy of a letter dated June 15, 2007, from the 14-year-old child to the effect that he did not w ant the appeal to proceed, the
Appellate D ivision issued an order to show cause directing the parties or their attorneys to show cause w hy an order should
not be m ade dism issing the appeal in the above-entitled proceeding as w ithdraw n. After argum ent of the appeal the m otion w as
granted and the appeal w as dism issed as w ithdraw n. The Appellate D ivision held that w here "the child is capable of know ing,
voluntary and cons ide re d judgm ent, the attorney for the child should be directed by the w ishes of the child" (22 N YC R R
7.2[d][2]). H ere, the child on num erous occa sions has expressed concern that his attorney w as not representing his w ishes.
Additionally, he requested that the appeal be w ithdraw n, prom pting the Court to require the parties or their attorneys to show
cause w hy the appeal should not be dism issed as w ithdraw n. In response to that order to show cause, the attorney for the child
failed to dem onstrate any basis upon w hich the child's preference m ay properly be disregarded (see 22 N YC R R 7.2[d][3] ).

W ife’s Failure to D isclose B ank Statem ents and Transfers of R eal Property Justified an A dverse Inference A gainst H er

In Gering v Tavano, --- N .Y.S.2d ----, 2008 W L 879674 (N .Y.A.D . 1 D ept.) the Appellate D ivision held that the verdict of cruel and
inhum an treatm ent w as supported by legally sufficient evidence, w hich included evidence of defendant's denigrating com m ents
about plaintiff's religious background, accusations of infidelity, and interference w ith plaintiff's relationship w ith the children
and evidence of plaintiff's anxiety, depression, headaches and stom ach aches resulting the refrom . Plaintiff show ed a
reasonable excuse for not filing the com plaint alleging cruel and inhum an treatm ent until approxim ately tw o years after the
com m encem ent of the divorce action. The parties had stipulated that the issue of fault w as resolved and that p laintiff w ould
"take the divorce" on the ground of constructive abandonm ent. H ow ever, defendant objected to that ground tw o years later,
after the inquest. D efendant w as not prejudiced by the delay, since plaintiff's sum m ons w ith notice indicated that he sought a
divorce on the grounds of both constructive abandonm ent and cruel and inhum an treatm ent. Plaintiff w as not required to
subm it an affidavit of m erit. The court properly based its im putation of incom e to plaintiff on his adm ission that he took m oney
from his business for personal expenses and failed to report it on his incom e tax returns. W ith respect to defendant's financial
condition, her failure to disclose her bank statem ents and various transfers of real property am ong herself, her fam ily m em bers
and third parties justified an adverse inference against her (see 22 N YCR R 202.16[k][5][I]; W ildenstein v. W ildenstein, 251 A.D .2d
189 [1998] ). The m aintenance aw ard of $2,000 a m onth w as properly based upon the court's finding of defendant's failure to
com ply w ith discovery and disclose real estate transactions and bank statem ents and the fam ily's pre-divorce standard of living.
H ow ever, the one-year duration of the aw ard w as inadequate and it w as increased to three years. The court properly articulated
its reasons for setting the child support obligation at 25% of $150,000. Given the evidence of defendant's ow n substantial assets,
the court properly requ ired he r to contribute 13% during the first year and 14% thereafter The aw ard to defendant of a 15%
interest in plaintiff's business w as proper, given her failure to contribute to the business, lack of cooperation w ith respect to
discovery of her ow n assets, and receipt of tem porary m aintenance.

Proper To H old D efendant R esponsible for the Plaintiff's C ounsel Fees in Sam e A m ount A s H e Paid H is C ounsel

In Ciam pa v C iam pa, --- N .Y.S.2d ----, 2008 W L 193292 (N .Y.A.D . 2 D ept.), the Appellate D ivision held that Suprem e Court did not
err in aw arding the plaintiff counsel fees up to the am ount defendant paid for his ow n counsel of $201,437.80, as w ell as expert
fees of $50,00. This m atrim onial action required the expenditure of significant counsel fees to deal w ith the m yriad of legal
issues presented, as w ell as substantial expert fees in order to evaluate the parties' m ultim illion-dollar business asse ts and
residential and com m ercial real estate. The defendant's expenditure of $201,437.80 for his counsel fees paled in com parison
to the plaintiff's expenditure of m ore than $484,142 for her counsel and experts, the plaintiff having utilized at least five law firm s
during the course of this m atrim onial proceeding. Given, inter alia, the delay attributable to the plaintiff, the Suprem e C ourt
properly exercised its discretion.

Error to A dm it into Evidence D eterm ination of Social Security A dm inistration on Issue of W ife’s D isability

In G rasso v G rasso, --- N .Y.S.2d ----, 2008 W L 193262 (N .Y.A.D . 2 Dept.) the Appellate Division found that that w hile the husband
correctly contended that the court im properly adm itted into evidence and re lied upon a determ ination of the Social Security
Adm inistration as to the w ife's disability, there w as other sufficient adm issible evidence w hich supported the finding that the
w ife w as totally disabled.

Proper to Enjoin D efendant from M ailing A ny N onfinancial C orrespondence to the Plaintiff

In M eccariello v M eccariello, 847 N .Y.S.2d 618 (2d D ept., 2007) Suprem e C ourt perm anently enjoined the w ife from m ailing any
nonfinancial correspondence to the plaintiff. The Appellate D ivision held that S uprem e C ourt w as correct in perm anently
enjoined her from m ailing any nonfinancial correspondence to the plaintiff, since the plaintiff dem onstrated that he w ould suffer
irreparable harm absent the injunction (citing Icy Splash Food & B everage, Inc. v. H enckel, 14 A.D .3d 595, 596, 789 N .Y.S.2d 505;
K ane v. W alsh, 295 N .Y. 198, 205-206, 66 N .E.2d 53).

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