Monthly Archives: December 2008

Two New Articles

29 December 2008

Two new articles are posted on my website, http://www.jdbar.com/.In New York Estate, Probate and Administration Basics, estate versus non estate assets are explained, followed by a brief discussion as to how an estate is handled when someone dies with and without a will.

The New York Default Last Will and Testament is exactly that; the will which everybody has if they don’t make their own.

Grandparent ’s Right of Visitation

27 December 2008

I was recently introduced to Alexander Korotkin’s family law blog, and found this excellent summary of grandparent’s visitation rights in New York.

Grandparents’ Right of Visitation

December 21st, 2008
In New York, grandparents have a right to seek assistance of the court to obtain visitation with their grandchildren. That right is included in both the Domestic Relations Law and the Family Court Act. Section 72(1) of the Domestic Relations Law states that

“[w]here either or both of the parents of a minor child, residing within this state, is, or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and . . . the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.”

Section 72(1) “does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild”. Wilson v. McGlinchey, 2 N.Y.3d 375, 380 (2004). When grandparents seek visitation under §72(1), the court must undertake a two-part inquiry. “First, [the court] must find standing based on death or equitable circumstances”; and “[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild”. Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181 (1991).

Since 1976, visitation may be awarded to grandparents in matrimonial actions. The 1976 amendment added the following to DRL §240: “Such direction [of a court in a matrimonial action] may provide for reasonable visitation rights to the maternal or paternal grandparents of any child of the parties.” In New York, the statute provides that grandparents may obtain visitation rights even though their child is not deceased, and the nuclear family is intact.

Last year, the Court of Appeals in E.S. v. P.D., 8 N.Y.3d 150 (2007), unanimously rejected a constitutional challenge to New York’s grandparent visitation law. …

Visit the Rochester Family Lawyer blog for the rest of this article.

Family Court’s Failure to calculate child support in accordance with FCA 413 constitutes error

16 December 2008

In Miller v. Miller, the father filed a petition to modify the existing child support order on the basis they children now lived with him. In calculating the mother’s child support obligation, the Support Magistrate was required to calculate the combined parental income. Since the income exceeded the statutory cap of $80,000, the Magistrate was also required to either apply the statutory percentages to the amount exceeding $80,000 or set forth a detailed reason on how the support for the income over $80,000 was calculated.Since the Support Magistrate did neither, the Appellate Division, 4th Department remitted the matter back to Family Court for a calculation of Child Support in accordance with FCA 413 and Cassano v. Cassano.

What’s really surprising here is not only did the Support Magistrate fail to follow the well established rules in calculating child support, but a Family Court judge failed to do so as well, since the objections were denied by Judge Rivioli.

Real Estate Appraisals, Payment in Hay Accepted

12 December 2008

One of the benefits of having kids is that you get to search for all kinds of neat things on the internet. My twin girls are now seven, and have expressed an ever growing desire in horses. So like any diligent parent, I began my online quest to indulge their equine interests. I make no such promises of this kind of diligence when they express an interest in boys however, other than to let any potential suitor know that I own a shotgun, shovel, and 500 acres of unmarked land somewhere upstate. But I digress.

I was absolutely floored when I found my riding instructor from decades ago. It seems she is still on Long Island, and is still teaching. After the initial shock of finding each other wore off, we started talking about where our lives have taken us, and it turns out that my instructor is now a certified real estate appraiser.

Janine’s real estate specialties, in her own words:

I specialize in appraising high end homes in the Hamptons and North Fork of Long Island, and Apartment buildings in Brooklyn and Queens, New York. How diverse can you get?

Her other specialty, once again in her own words:

I also specialize in training “Chronologically Challenged” horse owners who have developed a fear of riding and horse owners who have lost that “special connection” to their horses.

In case you’re wondering where this post’s title came from, it’s simply a quote from one of Janine’s sites – “Will Appraise for Hay.” Horse people are like that.

So why is this on my family law blog? Well, it’s a cool story. But we’re also talking about her submitting some guest articles on my website.

But for now, I suppose my next question is whether I will actually ride again. While my riding days are long, long over, and I classify myself as more of a “never was” than a “has been,” stranger things have been known to happen.

Chief Judge Judith Kaye Retiring

8 December 2008

New York’s Chief Judge, Judith Kay has turned 70 which is the mandatory retirement age. Last month, she gave her farewell speech, as reported in the New York Times.During her tenure, she has campaigned for massive reorganization of New York’s fractured court system. Various proposals such as merging Family Court with Supreme Court, abolishing the Surrogate’s Court, and raising the number of Supreme Court Justices were part of her noble agenda. Unfortunately, her plans for greatly simplifying our unnecessarily complex court system fell victim to various opposing forces, and only incremental changes were made.

However, last summer she helped launch a new court, the foreclosure court, as reported in this Wall Street Journal article.

Judge Kaye has also been leading the push for higher judicial pay.

Judge Kaye was appointed to Chief Judge in 1993, following the Sol Wachtler scandle.

Graev v. Graev & Termination of Maintenance: The Court of Appeals Changes the Rules

7 December 2008

Graev v. Graev is one of those cases where once standard language is turned on its head by the courts, creating a sea of uncertainty it what was assumed to be a fairly straightforward provision of most divorce agreements.

In order to understand Graev, some background is necessary.

Spousal maintenance may be set either by the court or by agreement. Domestic Relations Law Section 248 gives the default conditions on which maintenance may be terminated. DRL 248 provides as follows:

§ 248. Modification of judgment or order in action for divorce or annulment. Where an action for divorce or for annulment or for a declaration of the nullity of a void marriage is brought by a husband or wife, and a final judgment of divorce or a final judgment annulling the marriage or declaring its nullity has been rendered, the court, by order upon the application of the husband on notice, and on proof of the marriage of the wife after such final judgment, must modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders, or of both, directing payments of money for the support of the wife. The court in its discretion upon application of the husband on notice, upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man, may modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders or of both, directing payment of money for the support of such wife.

The bold text is added.

Thus, if a wife who is receiving maintenance lives with her boyfriend, there shall be no termination of maintenance unless is “holding herself out as his wife.”

Ignoring the gender wording of this statute, which is a holdover from a bygone era, parties are free to stipulate to a different set of conditions under which maintenance will be terminated. One of the most common agreed upon conditions is to provide that maintenance will terminate when the wife cohabitates with an unrelated male or adult. The intent here of course, was to provide for a termination event when the former wife does not marry her live in significant other.

With this background in place, Graev v. Graev can be understood.

The facts in Graev are simple. When the Graevs divorced, their settlement agreement provided that Mrs. Graev’s maintenance would terminate upon her “cohabitation of the Wife with an unrelated adult for a period of sixty (60) substantially consecutive days.” The agreement was silent, as are most agreements, as to the definition of “cohabitation.”

Following the divorce, Mrs. Graev lived with an unrelated adult male, and Mr. Graev stopped paying maintenance. Mrs. Graev filed a motion to enforce the agreement, and Mr. Graev filed a cross motion to terminate his maintenance.

Following a hearing, the Supreme Court found in favor of Mrs. Graevs, holding that “an essential element of cohabitation is a shared residence with shared household expenses” and that Mrs. Graev did not function as an economic unit with her new boyfriend.

Mr. Graev appealed, and the Appellate Division affirmed in favor of Mrs. Graevs, holding the word “cohabitation” meant more than a romantic relationship, and required a sharing of finances or an economic relationship. In affirming, the Appellate Division found that Mrs. Graev and her boyfriend living together for sixty days in 2004, and were romantically involved in 2003 did not constitute “cohabitation.”

Mr. Graev appealed to the Court of Appeals, which reversed, holding the term “cohabitation” does not have a plain meaning, and that extrinsic evidence of the parties’ intent was necessary to determine what they meant in their stipulation of settlement. Therefore, the reversal required the case to be sent back to the Supreme Court for a hearing to determine what the parties meant by cohabitation.

In closing, Footnote 4 of the main opinion notes that

The wisest rule, of course, is for parties in the future to make their intention clear by more careful drafting.

The result now will be a new section in divorce agreements which define the term cohabitation in greater detail.