FAILURE TO PAY CHILD SUPPORT IN NEW YORK HAS DRASTIC CONSEQUENCES
April 27, 2013
Lisa Beth Older, Esq. an attorney in New York reports that the Appellate Division First Department affirmed a lower Court Decision that sentenced the Father for willful nonpayment of child support that sentenced him to incarceration for a p[period of four months, with the condition that if he paid $5000.00 his sentence would be purged.
This case was decided by the New York Supreme Court Appellate Division First Department on April 11, 2013.
This case shows how important it is for all parties charged with child support to pay their court ordered obligation.
The full Decision is recited below.
Decided on April 11, 2013
Gonzalez, P.J., Friedman, Abdus-Salaam, Román, Clark, JJ.
In re April G., Petitioner-Respondent, v Duane M., Respondent-Appellant.
Andrew J. Baer, New York, for appellant.
Order, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about May 16, 2012, which affirmed the Support Magistrate's finding of willfulness, and sentenced respondent-appellant father to incarceration for a period not to exceed four months with a purge amount set at $5,000.00, unanimously affirmed, without costs.
Although the father has paid the purge amount and completed his sentence, this appeal "is not academic, in light of the enduring consequences which might flow from the finding that he violated the order of support" (Matter of Saintime v Saint Surin, 40 AD3d 1103, 1104 [2d Dept 2007]).
The father, however, failed to rebut the prima facie evidence of his willful violation of the order of support (see Family Ct Act § 454[a]). Indeed, the father failed to present credible evidence that his medical condition renders him unable to provide support for the subject child, or that he is financially unable to pay (compare Matter of Ferrara v Ferrara, 52 AD3d 599, 600 [2d Dept 2008], lv denied 11 NY3d 706 , with Matter of John T. v Olethea P., 64 AD3d 484, 485 [1st Dept 2009]).
To the extent the father argues that the court failed to settle the record on appeal, he has failed to show that evidence exists to remedy the deficiencies in his proof.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 11, 2013
Attorney Fees in a Divorce Case
December 3, 2012
New York Divorce Lawyer Lisa Beth Older states that in the below New York Divorce case decided on November 28, 2012 the Supreme Court Appellate Division upheld an appeal from an award of attorney fees to the Wife in the amount of $168,000.00. In part, the Court upheld the award because the Father appealed from an Order which was superseded by Money Judgments, and he never appealed from the money judgments. The Court also held that the Father waived his right to argue against paying his spouse's attorney fees because he failed to ask for a hearing. The Decision as to attorney fees in a divorce case is set forth below.
Decided on November 28, 2012:
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ANITA R. FLORIO, J.P.
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
SHERI S. ROMAN, JJ.
(Index No. 4785/99)
[*1]Morgan Delijani, v
Parham Delijani, appellant; Robert G. Smith, nonparty- respondent.
Jan Ira Gellis, P.C., New York, N.Y., for appellant.
Anthony A. Capetola, Williston Park, N.Y. (Robert P. Johnson
and Michele R. Olsen of counsel), for
Robert G. Smith, New York, N.Y., nonparty-respondent pro se.
DECISION & ORDER
In a matrimonial action in which the parties were divorced by judgment entered December 4, 2003, the defendant former husband appeals (1), as limited by his notice of appeal and brief, from stated portions of an order of the Supreme Court, Nassau County (Maron, J.), dated February 24, 2011, as amended by an order of the same court dated February 28, 2011, which, after a hearing, inter alia, granted that branch of the plaintiff former wife's motion which was for reimbursement of lodging expenses in the sum of $10,752.57 and her application for an award of counsel fees in the sum of $168,880.54, (2) from an order of the same court entered March 9, 2011, which, upon the granting of that branch of the plaintiff's motion which was to allocate to the defendant 100% of the fees of the attorney for the children, directed him to pay such fees of the attorney for the children in the sum of $7,625, (3) from a money judgment of the same court dated May 5, 2011, which, upon the order dated February 24, 2011, as amended, is in favor of the plaintiff's counsel and against him in the principal sum of $150,000, (4) from a money judgment of the same court also dated May 5, 2011, which, upon the order dated February 24, 2011, as amended, is in favor of the plaintiff and against him in the principal sum of $10,752.57, and (5) from a money judgment of the same court entered June 20, 2011, which, upon the order dated February 24, 2011, as amended, is in favor of the plaintiff's former counsel, Robert G. Smith, and against him in the principal sum of $18,880.54.
ORDERED that the appeal from so much of the order dated February 24, 2011, as amended, as, after a hearing, granted that branch of the plaintiff's motion which was for reimbursement of lodging expenses in the sum of $10,752.57 and her application for an award of counsel fees in the sum of $168,880.54 is dismissed; and it is further, [*2]
ORDERED that the appeal from the second money judgment dated May 5, 2011, is dismissed as abandoned; and it is further,
ORDERED that the order dated February 24, 2011, as amended, is affirmed insofar as reviewed; and it is further,
ORDERED that the order entered March 9, 2011, is affirmed; and it is further,
ORDERED that the first money judgment dated May 5, 2011, and the money judgment entered June 20, 2011, are affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff and the nonparty-respondent, payable by the defendant.
The appeal from so much of the order dated February 24, 2011, as amended by an order of the same court dated February 28, 2011, as, after a hearing, granted that branch of the plaintiff former wife's motion which was for reimbursement of lodging expenses in the sum of $10,752.57 and her application for an award of counsel fees in the sum of $168,880.54 must be dismissed, as those portions of the order were superseded by the first money judgment dated May 5, 2011, the second money judgment dated May 5, 2011, and the money judgment entered June 20, 2011 (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from those portions of the order are brought up for review and have been considered on the appeals from the money judgments (see CPLR 5501[a]).
Since the defendant former husband raises no argument in his briefs with respect to his appeal from the second money judgment dated May 5, 2011, which is in favor of the plaintiff and against him in the principal sum of $10,752.57, the appeal from that money judgment must be dismissed as abandoned (see Seaway Capital Corp. v 500 Sterling Realty Corp., 94 AD3d 856, 857; Lutwin v Perelman, 76 AD3d 958, 961; Chu v Pan, 72 AD3d 866, 868).
The defendant did not object to the submission of applications for counsel fees on papers, and failed to request a hearing on the issue. Accordingly, he waived his right to a hearing on the plaintiff's request for an award of counsel fees (see Bogannam v Bogannam, 60 AD3d 985, 987; Schwartz v Schwartz, 54 AD3d 400, 403; Messinger v Messinger, 24 AD3d 631, 632; Sieratzki v Sieratzki, 8 AD3d 552, 554-555). To the extent the defendant further challenges the award of counsel fees to the plaintiff former wife, such contentions are raised by the defendant for the first time on appeal and, therefore, not properly before the Court.
The defendant's remaining contentions are without merit.
FLORIO, J.P., LEVENTHAL, AUSTIN and ROMAN, JJ., concur.
How the new New York Spousal Support Statute Applies to Your Case
May 14, 2012
Lisa Beth Older, Esq. an attorney in New York, cites a case on point as to how the new New York spousal support statute applies to your case:
KHAIRA v. KHAIRA
Camille KHAIRA, Plaintiff–Respondent, v. Jasvinder Singh KHAIRA, Defendant–Appellant.
-- February 07, 2012
DAVID B. SAXE, J.P., JOHN W. SWEENY, JR., LELAND G. DeGRASSE, SALLIE MANZANET–DANIELS, NELSON S. ROMÁN, JJ.
Moses Preston & Ziegelman, LLP, New York (Robert M. Preston and Judith Ackerman of counsel), for appellant.Mayerson Stutman Abramowitz, LLP, New York (Harold A. Mayerson and Stephen A. Zorn of counsel), for respondent.
This appeal gives us the opportunity to consider the new guidelines for awards of temporary spousal maintenance under Domestic Relations Law § 236(B)(5–a), particularly with regard to the circumstances in which the court may deviate from the guideline amount derived by formula (the presumptive award), and the procedures that must be undertaken to do so.
The parties married on July 8, 2006, having jointly purchased the marital residence the month before. They have two sons, born December 25, 2007 and December 1, 2009. The wife also has a son from a previous marriage, born February 1, 1992. In September of 2010, the husband voluntarily moved out of the marital residence, and in October 2010, the wife commenced this divorce proceeding. She moved for pendente lite support, asking for monthly maintenance of $11,500 and child support of $7,290, and a direction that the husband directly pay the carrying costs on the marital residence, child care expenses, and all health care expenses for the family.
Lisa Beth Older New York, a Brooklyn Divorce Lawyer, comments on the March 2011 amendment to the Domestic Relations law
February 3, 2012
Amendment DRL240(1) (a) and its impact on Battered woman's Syndrome: Abuse as a Mandatory Factor in "Best Interests" analysis
In March 2011 the Domestic Relations law was amended in recognition of the impact spousal abuse has on the best interest of children, requiring that the court consider the factor and affect domestic violence has upon the best interests of the child analysis. The Hallmark of the DRL amendment appears to mandate that a lower Court consider allegations of abuse as a statutory factor in its "best interests" analysis. DRL Section 240(1); 12 N.Y.Prac. New York Law of Domestic Relations § 21:38. This statute has a precondition that said allegations be set forth in a pleading. DRL 240(1). In interpreting DRL 240 (1)(a) courts have held that when violence occurs on multiple occasions in the presence of a child it is proper to award sole custody to the other parent. Jasmine Gillo v. Williams, 2008 WL 8013230 (N.Y.Fam.Ct.), 2008 N.Y. Slip Op. 33607(U); also see Khaykin v. Kanayeva, 47 A.D.3d 817 [2d Dept 2008]; Drew v. Gillin, 17 A.D.3d 719 [3d Dept 2005]; Assini v. Assini, 11 A.D.3d 417 [2d Dept 2004]; Matter of Scott JJ, 280 A.D.2d 4[3d Dept 2001]).Violent threatening spouses denigrated a parent’s future abilities to provide appropriate guidance to children. In the case of Neail v. Deshane, 19 A.D.3d 758, 796 N.Y.S.2d 435 (3d Dep’t 2005) 5 N.Y.3d 711, 806 N.Y.S.2d 161, 840 N.E.2d 130 (2005) the Court awarded the Father custody due because the mother had serious anger management problems. In the case of COSTIGAN v. RENNER, 76 A.D.3d 1039 (2nd Dept. September 28, 2010) the Second Department held it is well settled that when a children reside in a residence of domestic violence they themselves become secondary victims and are likely to suffer psychological injury. The Court also held that the children thus learn morally challenged precepts that abusive behaviors are the a means to an acceptable end., citing to Matter of Wissink v. Wissink, 301 A.D.2d 36, 40, 749 N.Y.S.2d 550. It further held that acts of domestic violence against the perpetrator should not be awarded custody, citing to Matter of DeJesus v. Tinoco, 267 A.D.2d 308, 308, 699 N.Y.S.2d 905 and Matter of Wissink v. Wissink, 301 A.D.2d at 40, 749 N.Y.S.2d 550