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Appeals and Appellate Procedure


Matter of Aho (Court of Appeals 1976)

In the Matter of Aho, the Court of Appeals ruled that the right to appeal from a non final order terminates when the final order or judgment is issued.


Alexandru v. Pappas (Appellate Division 2nd Dept. 2009)

In Alexandru v. Pappas the Second Department applied the long standing three elements necessary to sustain a preliminary injunction. A demonstration of the probability of success on the merits, the danger of irreparable injury, and a balance of equities in its favor. The purpose of a preliminary injunction is to preserve the status quo.


Ayen v. Sain (Appellate Division 4th Dept. 2011)

In Ayen v. Sain the notice of appeal had the wrong entry date for the order being appealed. The Fourth Department cured this defect using its discretionary powers authorized under CPLR 5520 and decided the appeal on the merits.


Baecher v. Baecher (Appellate Division 2nd Dept. 1983)

In Baecher v. Baecher the Appellate Division dismissed the appeal due to a lack of an appealable order. The order under appeal was on consent, and the appellate division noted the remedy was to move to vacate the consent order.


Brinkmann v Brinkmann (Second Department 2017)

In Brinkmann v Brinkmann, that portion of the appeal from an award of counsel fees was dismissed due to the failure to provide a sufficient record to allow appellate review.


Cornell v. T. V. Development Corp. (Court of Appeals 1966)

In Cornell v. T. V. Development Corp., the Court of Appeals held that when a lower court grantes some, but not all of the relief requested, accepting the benefit of partial relief does not affect the status of being aggrieved under CPLR 5511 and an appeal may be maintained.


Cuda v. Cuda (Appellate Division 4th Dept. 2005)

In Cuda v. Cuda, an appeal was taken from a QDRO by the filing of a notice of appeal. The Appellate Division noted that no appeal as of right lies from a QDRO. The Court treated the notice of appeal as a motion for leave to appeal and granted the motion and heard the appeal on the merits.


Dalton v. City of Saratoga Springs (Appellate Division 3rd Dept. 2004)

In Dalton v. City of Saratoga Springs the Appellant filed a notice of appeal in a timely fashion under CPLR 5515, but failed to serve a copy. The Third Department held that the filing was sufficient to establish jurisdiction and declined to dismiss the appeal even thought the notice of appeal was not served.


Matter of Angela M. Elacqua, on Behalf of Tiffany DD., an Infant, v, James EE (Appellate Division 3rd Dept. 1994)

In the Matter of Angela M. Elacqua, the Third Department noted that no appeal as of right was permitted in Family Court from a non final order pursuant to FCA 1112. However, the Court treated the notice of appeal as a motion and granted leave to appeal using its discretionary powers.


Elsayed v Edrees (Second Department 2016)

In Elsayed v Edress, the Second Department dismissed an interlocutory appeal as the final judgment terminated all prior appeals. The issues raised in the dismissed interlocutory appeal were considered in the appeal from the final judgment, as it allows appellate review of all prior orders.


Finkelstein v. Lincoln Natl. Corp. (Appellate Division 2nd Dept. 2013)

In Finkelstein v. Lincoln Natl. Corp., the Second Department held that a defendant was not aggrieved under CPLR 5511 by an order adding another defendant to the action, since under Mixon the plaintiff did not seek a ruling against the original defendant. The appeal was dismissed for lack of aggrievement under CPLR 5511.


Grisi v. Shainswit (Appellate Division 1st Dept. 1986)

Grisi v. Shainswit is one of the few published cases that address CPLR 5519, and held that the decision to grant or deny a stay of enforcement under CPLR 5519 lies within the discretion of the court.


Gupta v Kumar (Second Department 2017)

In Gupta v Kumar the Second Department dismissed the entire appeal because only a portion of the transcripts were submitted as part of the record and the papers provided were patently insufficient for the purpose of reviewing the issues that were raised in the appeal.


Hecht v. City of New York (Court of Appeals 1983)

In Hecht v. City of New York, the Court of Appeals held that only a party who took an appeal has the right to obtain any appellate relief. A non appealing party cannot be granted relief in an appeal.


James v. Powell (Court of Appeals 1967)

In James v. Powell, the Court of Appeals held that when a defendant's answer is stricken as a penalty for non disclosure, an appeal may still be taken from the final judgment, despite CPLR 5701's provision that no appeal lies from a default.


Jones Sledzik Garneau & Nardone, LLP v Galit Schloss (Appellate Division 2nd Dept. 2007)

In Jones Sledzik Garneau & Nardone, LLP v Galit Schloss the appellant filed an untimely notice of appeal from a non final order which did not correctly identify the order being appealed. Six month later, the appellant filed a notice of appeal from the final judgment. The Second Department dismissed both appeals as untimely holding the time requirements to take an appeal under CPLR 5513 are jurisdictional and nonwaivable.


Kubiszyn v. Terex (Appellate Division 4th Dept. 1994)

In Kubiszyn v. Terex the appellant timely served a notice of appeal, but it was rejected by the clerk because there was no pre-argument statement attached. The court enlarged the time to file the notice of appeal, on the basis that timely service was sufficient to establish appellate jurisdiction.


Kumar v Chander (Second Department 2017)

In Kumar v Chander, the appeal to determine if an award of counsel fees was excessive or not was dismissed due to the appendix not containing sufficient records to allow proper appellate review.


Leeds v. Leeds (Court of Appeals 1983)

In Leeds v Leeds, the Court of Appeals sua sponte reviewed whether the appellant was aggrieved under CPLR 5511 and dismissed the appeal.


Larkin-King v. King (Appellate Division 2nd Dept. 1990)

In Larkin-King v. King the Second Department dismissed an appeal based on a consent order. No appeal lies from a consent agreement, instead, the remedy is to move to set aside the agreement and appeal may be taken from that order.


Loy v. Loy (Appellate Division 4th Dept. 2013)

In Loy v. Loy the Fourth Department, citing Cuda v. Cuda, noted that no appeal as of right lies from a QDRO. The Court treated the notice of appeal as a motion for permission to appeal, granted the motion and determined the appeal on the merits.


Marin v Marin (Second Department 2017)

In Marin v Marin, that portion of the appeal which raised the lower court failed to award pendente lite arrears was dismissed as the appendix did not contain that portion of the record to allow proper appellate review.


M Entertainment v. Leydier (Court of Appeals 2009)

In M Entertainment v. Leydier the Court of Appeals held that the timely filing of a notice of appeal was sufficient to establish appellate jurisdiction, and thus the failure to serve the notice of appeal could be cured at the court's discretion under CPLR 5520.


Mixon v. TBV (Appellate Division 2nd Dept. 2010)

In Mixon v TBV, the Second Department provided a two prong test for determining aggrievement under CPLR 5511, holding that a party is aggrieved when they ask for relief but is denied in whole or part, or when relief against a party is requested by another party and it is granted in whole or part.


Newton v McFarlane (Second Department 2019)

In Newton v McFarlane, the Second Department specifically addressed the issue whether or not an A.F.C. has the authority to file and prosecute an appeal on behalf of a child. The Court found that an A.F.C. has the authority to do so under FCA 1120(b).


Nicole J.R. v Jason M.R. (Appellate Division 4th Dept. 2011)

In Nicole J.R. v Jason M.R. the appellant used the wrong entry date in the notice of appeal. The Court cured this defect under CPLR 5520 and allowed the appeal to proceed on the merits.


Parochial Bus Systems, Inc., v. Board of Education of the City of New York (Court of Appeals 1983)

In Parochial Bus v Board of Ed, the Court of Appeals held there is no right to appeal from a judgment in that party's favor. But if the relief is incomplete, that party is still aggrieved under CPLR 5511. This definition was further refined in Mixon v. TBV.


Park East Corp. v. Whalen (Court of Appeals 1976)

In Park East Corp. v. Whalen, the Court of Appeals held the additional time to file a notice of appeal under CPLR 5514, following the denial of an improperly filed motion seeking permission to appeal runs from the service of the order, and not the date of the order itself. This holding has not been consistently applied. See Retamozzo v. Quinones.


Pezzollo v Pezzollo (Second Department 2019)

In Pezzollo v Pezzollo, a law firm sought counsel fees under DRL 237 and requested relief and alternate relief.  The Supreme Court granted the alternate relief only. The Second Department rejected the defendant's argument that the law firm was not aggrieved and considered the appeal on the merits.


Plowden v. Manganiello (Supreme Court Bronx County 1989)

In Plowden v. Manganiello the Bronx Supreme Court held that a motion for a stay of enforcement under CPLR 5519 cannot be entertained until an appeal is actually taken. A notice of an intention to appeal is insufficient.


Pramco III, LLC v. Partners Trust Bank (Appellate Division 4th Dept. 2008)

In Pramco III, LLC v. Partners Trust Bank, the Appellate Division dismissed the defendant's cross appeal as the defendant did not seek any affirmative relief and the plaintiff's relief was denied in its entirety. The defendant was not aggrieved under CPLR 5511. Merely disagreeing with the court's reasoning is not sufficient to grant standing to appeal.


Retamozzo v. Quinones (Appellate Division 1st Dept. 2012)

In Retamozzo v. Quinones, the First Department did not follow the Court of Appeals holding in Park East v Whalen, and dismissed an appeal as untimely, as it used the date of the order denying leave to appeal instead of using the date the order was served under the holding of Park East. This case is in direct contradiction to the Court of Appeals holding in Part East.


Rhodes v. Mosher (Appellate Division 4th Dept. 1985)

The Fourth Department in Rhodes v. Mosher provides a clear explanation and distinction between the relief available under CPLR 2201 and CPLR 5519. The appellant brought a motion in the Appellate Division seeking a stay of all trial level proceedings under CPLR 2201 and CPLR 5519. The motion was denied, as a motion for a stay of proceedings under CPLR 2201 may only be brought in front of the court where the action is pending, relief under CPLR 2201 may only be obtained in the appellate division from an order granting or denying a 2201 motion. Nor can a stay of proceedings be granted under CPLR 5519, as that provision only authorizes a stay of enforcement of the order under appeal.


Seitzman v. Hudson River Associates (Appellate Division 1st Dept. 1987)

In Seitzman v. Hudson River Associates the First Department restated and applied the three prerequisites necessary for obtaining a preliminary injunction. (1) the likelihood of success on the merits, (2) irreparable injury, and (3) the balancing of the equities.


Schwartz v. Schwartz (Appellate Division 2nd Dept. 2010)

In Schwartz v. Schwartz the Appellant failed to provide a sufficient record and transcripts for the appeal, resulting in the dismissal of the appeal.


Shifer v. Shifer (Appellate Division 2nd Dept. 2006)

In Shifer v. Shifer, the parties were divorced and an appeal was taken. The Appellate Division dismissed the portion of the appeal as to grounds, holding the preliminary conference order which resolved grounds acted as a waiver to any challenge and precluded appellate review. The remaining issues were decided on the merits and affirmed.


Thomas J. Rubeo v. National Grange Mutual Insurance Co. (Court of Appeals 1999)

In Rubeo v. National Grange, the Court of Appeals held that a dismissal of an appeal based on a failure to perfect it is a dismissal on the merits and will bar an appeal from a subsequent order on the same issues.


Tina X v. John X (Appellate Division 3rd Dept. 2015)

In Tina X v. John X, the Third Department noted that no appeal as of right lies from a non final order issued by Family Court under FCA 1112. The Court declined to treat the notice of appeal as a motion and dismissed the appeal.


Wohl v. Wohl (Appellate Division 2nd Dept. 2006)

In Wohl v Wohl, an appeal was taken from a Quadro. The Second Department dismissed the appeal, as no appeal lies from a default. The remedy was to move to vacate the default or move to resettle the Quadro.


Zaikowski v. Monzon (Appellate Division 2nd Dept. 2010)

In Zaikowski v. Monzon the Appellant failed to order and settle the transcripts. The appeal was dismissed.


 

Residency Requirements for Matrimonial Actions


Lacks v. Lacks (Court of Appeals 1976)

In Lacks v. Lacks, the Court of Appeals ruled that New York residency is not jurisdictional but is part of the cause of action for a divorce, and may only be challenged while the divorce is pending.


Stancil v Stancil (Supreme Court New York County 2015)

In Stancil v. Stancil the Supreme Court of New York County determined that no fault divorce under DRL 170(7) is not a cause of action, and therefore the one year residency provision under DRL 230(3) could not be established when DRL 170(7) is the basis for divorce.


Divorce Grounds


A.C. v. D.R. (Supreme Court Nassau County 2011)

In A.C. v. D.R., the trial court ruled that there is no defense to no fault divorce filed under DRL 170(7). As such, there is no right to a trial on grounds. However, the court denied a motion for summary judgment on grounds, since the statute permits a judgment of divorce only when all ancillary issues are resolved. Contrast with Strack v. Strack.


Brady v. Brady (Court of Appeals, 1985)

The holding of Hessen v. Hessen was upheld by the Court of Appeals in Brady v. Brady, and continues to apply to divorce actions filed under the adoption of DRL 236 B's equitable distribution.


Diemer v. Diemer (Court of Appeals, 1960)

In Diemer v. Diemer the Court of Appeals expanded the grounds of abandonment, and, ruling that the lack of sexual relations was to be constructively held to constitute abandonment.


Golub v. Ganz (Appellate Division 3rd Dept. 2005)

In Golub v. Ganz, the divorce was granted on the basis of adultery, despite the adultery occurring after the divorce action was commenced.


Hessen v. Hessen (Court of Appeals, 1974)

In Hessen v. Hessen, which was decided before DRL 236 B was enacted, held that in order to grant a divorce under cruel and inhuman treatment, longer marriages will be held to a higher standard of proof than a short marriage. At the time of Hessen, only wives could obtain alimony and title controlled the disposition of property. Marital property did not exist as a concept. The holding of Hessen was continued after DRL 236 B was enacted in the case of Brady v Brady.


King v. King (Supreme Court, Kings County 1986)

The Supreme Court of Kings County denied a conversion divorce in King v. King. The plaintiff failed to substantially comply with the essential terms of judicial separation by failing to pay support in a timely fashion, and further failed to repair the roof of the marital premises as agreed.


Nahl v. Nahl (Appellate Division, 3rd Dept. 1989)

The court held in Nahl v. Nahl that in order to grant a conversion divorce, literal compliance with the terms of a separation agreement is not necessary if the essentials of the agreement are met.


Stern v. Stern (Appellate Division 2nd Dept. 1985)

In Stern v. Stern, the Appellate Division held that while literal compliance with a separation agreement is not required, the support provisions are the essential duty imposed by the agreement, and the failure to comply with them precludes the use of the separation agreement as the basis for a conversion divorce.


Strack v. Strack (Supreme Court, Essex County 2011)

In Strack v. Strack, the trial court held that New York's new no fault divorce statute, DRL 170(7), simply added a new cause of action for a divorce, and did not preclude the right to a jury trial under DRL 173. Contrast with A.C. v D.R.C.


Walczak v. Walczak (Appellate Division 4th Dept. 1994)

The Appellate Division held in Walczak v. Walczak that strained relations is insufficient to meet the high degree of proof required in a long-term marriage to establish cruel and inhuman treatment. As divorce was improperly granted by trial court, the marital property was not subject to equitable distribution.


Child Support


Ball v Ball (Third Department 2017)

In Ball v Ball, the Court restated the mandatory three step process in determining child support. First, the court must calculate the parties combined parental income. Second, that amount, up to the statutory cap, is multiplied by the specified percentage based upon the number of children which is then allocated to each parent in a ratio equal to their incomes. Third, when the combined parental income exceeds the statutory cap, the court must "determine the amount of child support for the amount of the combined parental income in excess of such dollar amount. The court must apply either the percentage or statutory factors to the excess income, "or some combination of the two and must set forth a record articulation for deviating or not deviating from the statutory guideline/ 


Baraby v. Baraby (Appellate Division 3rd Dept., 1998)

In Baraby v. Baraby, the court held that when both parents have the child equal amounts of time, the parent with the greater income is deemed to be the non custodial parent under DRL 240 for CSSA compliance purposes. There can be no recoupment of overpayments of temporary child support by the non custodial parent.


Bast v. Rossoff (Court of Appeals, 1998)

The Court of Appeals held in Bast v. Rossoff that when calculating child support, joint custody awards must follow CSSA guidelines in calculation support; the parent who has child the majority of the time is the custodial parent for child support calculations.


Boden v. Boden (Court of Appeals 1977)

In Boden v. Boden, the Court of Appeals held that in order to modify a child support order when there is an unmerged stipulation requires a showing of an unanticipated and unreasonable change in circumstances.


Brescia v. Fitts (Court of Appeals, 1982)

The holding of Boden was clarified by the Court of Appeals in Brescia v. Fitts, which held that a modification of child support will be granted if the child's needs are not being met without a showing of unanticipated and unreasonable change in circumstances as set forth in Boden v. Boden.


Cassano v. Cassano (Court of Appeals, 1995)

The Court of Appeals in Cassano v. Cassano held that New York child support guidelines may be applied past the then existing $80,000 cap without enumerating the factors in DRL 240 so long as a the court gives some basis for their application beyond the then existing $80,000 cap so as to permit appellate review.


Cimons v Cimons (Second Department 2008)

In Cimons v Cimons the Second Department held that college expenses of the children is not part of basic child support obligation and is not subject to the CSSA requirement that any deviation from statutorily-mandated child support obligations must be recited and explained in a stipulation of settlement. 


Cummins v Lune (Third Department 2017)

In Cummins v Lune, the provision in a marital agreement which opted out of child support was held to be unenforceable as it failed to comply with the requirements of the CSSA.


Dallin v. Dallin (Appellate Division 2nd Dept. 1996)

In Dallin v. Dallin the Appellate Division noted that the former husband's agreement provided for a reduction of maintenance if his income dropped below $300,000 per year. The reduction of maintenance was granted but reduction of child support denied despite his drop in income, as it was not unanticipated and unreasonable.


David v Cruz (First Department 2013)

In David v Cruz, the parties had an agreement which purported to opt out of CSSA guidelines. The agreement was unenforceable as all child support agreements must include a provision stating that the parties have been advised of the provisions of the CSSA, and must specify the amount that the basic child support obligation would have been, and the reason or reasons for the deviation. This provision cannot be waived.


Elsayed v Edrees (Second Department 2016)

In Elsayed v Edrees, the Court properly imputed income to the non custodial parent, noting that his testimony was not credible.


Foxx v. Foxx (Appellate Division 3rd Dept. 1985)

The Appellate Division in Foxx v. Foxx held that no credit is given for overpayment on a temporary order of support.


Fleming v McCloskey (Second Department 2019)

In Fleming v McCloskey, the court imputed income to the father. However, the father's additional income of $11,000 was used by the court as additional monthly income, while the record appeared to show it was annual income. Matter remitted back to court to determine the father's income.


Gravlin v. Ruppert ( Court of Appeals 2002)

The Court of Appeals held in Gravlin v. Ruppert that an unanticipated change in the father's relationship with his daughter created a need to modify the support agreement. The visitation agreement broke down through through no fault of either party, resulting in only the custodial parent providing support. In such circumstances, the Family Court should establish the support obligation of the non custodial parent by modifying the existing award.


Heverin v. Heverin (Appellate Division 2nd Dept. 1997)

The Appellate Division in Heverin v. Heverin held that a party seeking a downward modification of child support has the burden of establishing an unanticipated and unreasonable change of circumstance. Loss of employment may constitute such a change, but a downward modification may be denied where the moving party has not made a good faith effort to obtain employment commensurate with his or her qualifications and experience.


Imhof v. Imhof (Appellate Division 2nd Dept. 1999)

The Appellate Division in Imhof v. Imhof held that separate property can be transmuted into marital property when the actions of the titled spouse demonstrate his intent to transform the character of the property from separate to marital. Non custodial parent entitled to credit for amounts contributed to the costs of child's education when the child lived away from home while attending college.


Justino v. Justino (Appellate Division 2nd Dept. 1997)

In Justino v. Justino, the non custodial parent who was directed to pay child support and contribute to college expenses was entitled to a provision reducing the level of child support or crediting the husband for any amounts he contributes toward college expenses when the children live away from home while attending college.


Kaplan v. Kaplan (Appellate Division 2nd. Dept. 2005)

The husband's income in Kaplan v. Kaplan was capped at 300,000 per year for CSSA calculations of child support, less maintenance award to wife and FICA deductions.


Kashman v Kashman (Second Department 2017)

In Kashman v Kashman the Court failed to articulate how it arrived at an order of temporary child support and the matter was remitted back to the court to determine if it should apply CSSA guidelines and if not, to state the reason.


Klauer v Abeliovich (Second Department 2017)

In Klauer v Abeliocvich, the Court properly applied the CSSA guidelines and used a cap of $800,000 to determine child support.


Kumar v Chander (Second Department 2017)

In Kumar v Chander, the Court providently exercised its discretion in imputing income to the defendant.


Litwack v. Litwack (Appellate Division 2nd Dept 1997)

The Appellate Division held in Litwack v. Litwack that a non custodial parent is entitled to a credit towards child support for the amounts contributed to the costs of college education during periods when the children live away from home while attending college.


Marin v Marin (Second Department 2017)

In Marin v Marin, it was correct not to direct payment towards collage as the parties had already set aside a significant amount of resources for that expense.


Picone v Golio (Second Department 2019)

In Picone v Golio, the Second Department held the Support Magistrate properly imputed income as the court is not bound to rely upon a party's own account of their finances, but may impute income on the basis of the party's past income or demonstrated potential earnings.


Preischel v. Preischel (Appellate Division 4th Dept. 1983)

In Preischel v. Preischel, the Appellate Division granted a downward modification of child support granted. Petitioner showed unanticipated and unreasonable change in circumstances. Petitioner established that he lost his job through no fault of his own, made diligent efforts to seek employment, and that once he found a job, he filed an amended petition.


Reinisch v. Reinisch (Appellate Division 2nd Dept., 1996)

In Reinisch v. Reinisch, the Appellate Division held that the non custodial Parent is entitled to a reduction of basic child support for payments made to room and board when a child is attending college.


Rodgers v. Rodgers (Appellate Division 2nd Dept. 1983)

In Rodgers v. Rodgers, the Appellate Division held that retroactive payments of permanent maintenance are made only if the award is in excess of any temporary maintenance award. Denied credits for overpayments of temporary maintenance over the final award.


Rosenberg v Rosenberg (Second Department 2016)

In Rosenberg v Rosenberg, the court did not accept the defendant's representation of his income, finding his income as reported "suspect" and imputed income to him. 


Tompkins v. Chamberlin (Court of Appeals, 2003)

In Tompkins v. Chamberlin, the Support Collection Unit's objected to its own request for a COLA adjustment to child support, which triggered a de novo calculation of support which increased the father's support obligation. The Court of Appeals affirmed, despite mother's lack of a request for such a modification.


Vainchenker v. Vainchenker (Appellate Division 2nd Dept. 1997)

The Appellate Division in Vainchenker v. Vainchenker held that the husband entitled to a provision in the judgment of divorce reducing the level of child support or crediting him for any amounts he contributes towards college expenses when the child lives away from home while attending college.


Legal Fees & Expert Fee Awards in Matrimonial Actions


Ahern v. Ahern (Appellate Division 2nd Dept. 1983)

In Ahern v. Ahern, the Appellate Division held that Pendente Lite requests for expert fees must set forth (1) the nature of the marital property involved; (2) the difficulties involved, if any, in identifying and evaluating same; (3) the services to be rendered and an estimate of the time involved; and (4) the movant's financial status.


Brinkmann v Brinkmann (Second Department 2017)

In Brinkmann v Brinkmann, the Second Department dismissed that part of the appeal from the award of counsel fees due to the defendant's failure to include any of the papers submitted to the Supreme Court in connection with the application for counsel fees.


Cummins v Lune (Third Department 2017)

In Cummins v Lune the Third Department reversed the Supreme Court's denial of an award of pendente lite counsel fees. DRL 237 creates a rebuttable presumption that the monied spouse shall pay counsel fees to the non monied spouse and the husband failed to rebut that presumption. The Third Department exercised its discretion and based on the record before it, awarded the wife $3,500.


DeCabrera v. Cabrera-Rosete (Court of Appeals, 1987)

In DeCabrera v. Cabrera-Rosete, the Court of Appeal ruled that neither necessity nor indigency is required to obtain an award of counsel fees under DRL 237. Instead, DRL 237 was designed to give the court broad discretionary powers in awarding counsel fees based upon the finances of the parties as well as all the other circumstances, including the merits of each party's position.


Evelyn v Henry (Second Department 2018)

In Evelyn v Henry, the award of pendente lite counsel fees was reversed. The motion failed to include the necessary documentation required under 22 NYCRR 202.16[k][3].


Grant v Frank (Second Department 2017)

In Grant v Frank, an award of counsel fees was requested under DRL 237. The Court sua sponte awarded fees under 22 NYCRR 130-1.1(a) as a sanction. The Second Department reversed, as any sanction must give an opportunity to be heard and the sua sponte award deprived the plaintiff of meaningful due process.


Johnson v Chapin (Court of Appeals 2009)

In Johnson v Chapin, the Court of Appeals affirmed an award of counsel fees as the lower court considered the parties' financial positions and delays caused by the husband's obstructionist tactics.


Kaprov v Stalinsky (Second Department 2016)

In Kaprov v Stalinsky, the wife was awarded $125,000 in counsel fees given the financial circumstances of the parties, the relative merits of their positions, and the husband unnecessarily prolonging the litigation.


Kashman v Kashman (Second Department 2017)

In Kashman v Kashman the parties agreement which waived counsel fees did not bar temporary relief while the action was pending.


Kaufman v Kaufman (Second Department 2015)

In Kaufman v Kaufman, an interim award of counsel fees was increased from $25,000 to $75,000 due to the financial disparity between the parties and the likelihood that the matter will be protracted.


Klauer v Abeliovich (Second Department 2017)

In Klauer v Abeliovich, the Referee recommended that neither side be awarded counsel fees. The Supreme Court rejected that portion of the report, and awarded defendant $373,000, which was in addition to the $127,000 previously awarded. The Second Department affirmed based on the amount of the award, the manner of payment balances, the inequity of the incomes, and financial disposition of the case, and the relative merits of the legal arguments advanced by both sides.


Kumar v Chander (Second Department 2017)

In Kumar v Chander, the defendant was awarded counsel fees and the plaintiff appealed. The plaintiff's appeal of the award of counsel fees was dismissed as plaintiff's appellate record failed to contain a sufficient portion of the record to allow appellate review.


Levin v Blum (Second Department 2018)

In Levin v Blum, a support proceeding seeking an order of child support authorizes the court to exercise its discretion and award counsel fees under DRL 237. 


Maliah-Dupass v Dupass (Second Department 2018)

In Maliah-Dupass v Dupass, the defendant was denied counsel fees as the plaintiff was the monied spouse.


Marin v Marin (Second Department 2017)

In Marin v Marin, the Second Department affirmed an award of counsel fees, holding that the decision to award counsel fees is in the discretion of the trial court and then in the Appellate Division whose discretion is equal to that of the trial court.


Massina v Massina (Second Department 2017)

In Massina v Massina, an award of counsel fees was vacated as the attorney failed to submit any documentation as to the value of the services performed. The lower court's order failed to contain how it determined the award reasonable.


Pezzollo v Pezzollo (Second Department 2019)

In Pezzollo v Pezzollo, the Defendant was the monied spouse who failed to rebut the statutory presumption that counsel fees shall be awarded. The award of interim counsel fees was increased, based upon the determination that the Plaintiff required this award to continue the matter on an equal footing. 


Prichep v. Prichep (Appellate Division, 2nd Dept. 2008)

The Appellate Division in Prichep held that it was improper for the trial court to defer a counsel fee award until trial, and granted the wife's request for pendente lite counsel fees. The wife should not be expected to deplete her finite resources when a counsel fee award would not substantially impact the husband's lifestyle. Any inequity in a pendente lite counsel fee award could be offset against the equitable distribution of the parties.


Turret v Turret (First Department 2017)

In Turret v Turret, the First Department affirmed a pendente lite award of $175,000 in interim counsel fees as a proper exercise of discretion, stating the husband's remedy is a speedy trial.


Marital Agreements


Anonymous v. Anonymous (First Department 2016)

In Anonymous v. Anonymous, the First Department held that a temporary maintenance provision in a preliminary conference order was not enforceable as it failed to comply with the non waivable provisions of the temporary maintenance provisions under DRL 236 B (5-a).


Blonder v Blonder (Second Department 2019)

In Blonder v Blonder, the former husband made a motion in Family Court to set aside the maintenance provisions of his divorce agreement. In dismissing the motion, the Court held that the Family Court lacked the authority to entertain this motion as it was a court of limited jurisdiction.


Christian v. Christian (Court of Appeals 1977)

In Christian v. Christian, the Court of Appeals established the standards of unconscionability to set aside a marital agreement.


Cimons v Cimons (Second Department 2008)

In Cimons v Cimons, the Court held that a college provision is not part of the basic support and is not under the mandatory CSSA language provisions, and that part of a separation agreement may be enforceable while another part is not.


Cioffi-Petrakis v Petrakis (Second Department 2010)

In Cioffi-Petrakis v Petrakis, a motion for summary judgment to set aside a marital agreement was denied. An agreement between spouses or prospective spouses which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability. The opposition to the motion contained no factual claims but instead only made conclusory and unsubstantiated assertions insufficient to defeat a motion for summary judgment


Cummins v Lune (Third Department 2017)

In Cummins v Lune, upon review of the parties' agreement, the court found the agreement fixed the amount of support but not the duration. One part of a separation agreement may be found to be unenforceable without invalidating the entire agreement. The child support provision was determined to be in violation of the mandatory language of the CSSA guidelines.


David v Cruz (First Department 2013)

In David v Cruz, the marital agreement failed to include the mandatory CSSA language making the child support provision unenforceable. 


DeCamello v DeCamello (Appellate Division 2nd Dept. 2017)

In DeCamello v DeCamello, the court applied the long standing rule that when an agreement is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence.


Graev v. Graev (Court of Appeals 2008)

In Graev v. Graev, the Court of Appeals held that the term "cohabitation" is ambiguous, and remitted the case back to Supreme Court for a hearing to determine the parties' intent.


Kashman v Kashman (Second Department 2017)

In Kashman v Kashman, the Court denied a motion to set aside a marital agreement, as an agreement which is fair on its face will be enforced according to its terms unless there is proof of unconscionability, or fraud, duress, overreaching, or other inequitable conduct.


Lowe v Lowe (Second Department 2017)

In Lowe v Lowe, the parties transferred title of the marital residence to one party in exchange for $60,000. This was not held to be an enforceable agreement which would preclude equitable distribution as it failed to comply with DRL 236 B(3) by not being in writing or acknowledged. The Court found the property subject to equitable distribution and found the exchange was fair.


Matisoff v. Dobi (Court of Appeals 1997)

In Matisoff v. Dobi, the Court of Appeals held that a marital agreement must be acknowledged and not simply notarized, failure to do so makes it invalid.


McKenna v. McKenna (Second Department 2014)

In McKenna v McKenna, the court decided a motion for summary judgment to determined the validity of a prenuptial agreement. The plaintiff made a prima facie case by showing it appeared fair on its face, it was not a product of fraud or duress, there was full disclosure to the other and each party had independent counsel. The Defendant raised a raised triable issues of fact with regard to the fairness of the agreement, the circumstances surrounding the negotiation and execution of the agreement, and the absence of any meaningful financial disclosure by the plaintiff. Summary judgment could not dispose of this issue and a hearing was necessary. 


 

Maintenance & Spousal Support


Anonymous v. Anonymous (First Department 2016)

In Anonymous v. Anonymous, a preliminary conference order that contained a temporary maintenance provision was held unenforceable when the wife sought an upwards modification.  The order did not contain a guideline amount nor did it contain a reason why there was a deviation. There was no need to consider whether there was a change in circumstances and a de novo calculation was correct.


Arnone v. Arnone (Appellate Division 3rd Dept. 1997)

In Arnone v. Arnone, the Appellate Division denied an award of maintenance despite defendant having a limited work history. Defendant obtained a college degree while married, but made no effort to transition back into the work force despite deterioration of marriage.


Ball v Ball (Third Department 2017)

In Ball v Ball, the Supreme Court declined to award the wife maintenance. In affirming, the Third Department held since the wife is an educated person who is able to support herself, there was no abuse of discretion in denying her maintenance.


Bliss v. Bliss (Court of Appeals 1985)

The Court of Appeals held in Bliss v. Bliss that the clear language of DRL 248 imposes two requisites for the termination of alimony [to a former wife] in the absence of remarriage: (1) habitually living with a man, and (2) holding herself out as his wife. Habitually lived with another man by itself is insufficient to satisfy this two-pronged test.


Blonder v Blonder (Second Department 2019)

In Blonder v Blonder, the ex husband filed a motion in Family Court to set aside the maintenance provisions of a divorce agreement. The motion was dismissed as the Family Court is a court of limited jurisdiction and without authority to set aside or modify an agreement.


Brinkmann v Brinkmann (Second Department 2017)

In Brinkmann v Brinkmann, the Second Department restated the pre 2016 standard for deciding maintenance, that the amount and duration of maintenance is a matter committed to the sound discretion of the trial court and every case must be determined on its unique facts.


Florio v. Florio (Appellate Division 3rd Dept. 2006)

In Florio v. Florio, the Appellate Division stated that DRL 248 requires both cohabitation and that the wife is holding herself out as his wife, although not married to such man. Both elements must be shown to terminate maintenance, and any attempt by Supreme Court to impose a less stringent requirement clearly would be erroneous.


Foxx v. Foxx (Appellate Division 3rd Dept. 1985)

In Foxx v. Foxx, the Appellate Division held that no credit is given for overpayment on a temporary order of support.


Galanopoulos v Galanopoulos (Second Department 2017)

In Galanopoulos v Galanopoulos, the Court restated the well established rule that the amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts, and the overall purpose of maintenance is to allow a spouse to become self sufficient.


Garver v. Garver (Appellate Division 2nd Dept. 1998)

Garver v. Garver held that despite the failure of the divorce action, the trial court was still authorized to award permanent maintenance to the wife.


Iannone v. Iannone (Appellate Division 2nd Dept. 2006)

In Iannone v. Iannone, the Appellate Division held that the purpose of pendente lite maintenance is to tide over the needs of the less monied spouse and not to make a final determination of support. This ruling is no longer the standard under the new temporary maintenance formula.


Johnson v Chapin (Court of Appeals 2009)

The Court of Appeals ruled in Johnson v Chapin that a husband was entitled to a credit to offset the amount of pendente lite maintenance that exceeded his obligation under the final order. The offset was through equitable distribution. The Court of Appeals reiterated the long standing rule that no credit is given for overpayments of temporary child support.


Kaprov v Stalinsky (Second Department 2016)

In Kaprov v Stalinsky, the Second Department affirmed the award of maintenance, citing one of the statutory factors in determining maintenance was the existence of a pre marital joint household. While this discretionary provision replaced in 2016, it remains a statutory factor when a deviation from guideline maintenance is warranted. See DRL 236 B(6)(e)(1)(f).


Kaufman v Kaufman (Second Department 2015)

In Kaufman v Kaufman, the Second Department remitted the matter back to Supreme Court for a new determination of temporary maintenance. The Supreme Court deviated from the guideline amounts based on one factor alone, direct payments being made. The lower court failed to explain how it determined this set amount was sufficient to cover reasonable and necessary expenses.


Kumar v Chander (Second Department 2017)

In Kumar v Chander, the Court imputed income to the non custodial parent, as a court is not bound by a party's account of his or her own finances, and when a party's account is not believable, the court can set an income higher than that claimed.  However, as the Court imputed different incomes for the purposes of child support and maintenance and incorrectly failed to deduct maintenance before calculating child support. As a result, the case was sent back to Supreme Court for the calculations.


Marin v Marin (Second Department 2017)

In Marin v Marin, the Court properly imputed income of $350,000 in calculating child support.  The court is not bound by a party's account of their finances, and when a party's account is not believable, the court is justified in finding a true or potential income higher than claimed. 


Mora v. Mora (Appellate Division 2nd Dept. 2007)

In Mora v. Mora, the Appellate Division held that an award of maintenance properly denied due to wife's capacity to earn a living as a computer specialist despite being disabled, and that she had been awarded maintenance during the pendency of the action. Husband was responsible for the support of the parties' children of whom he has custody and his income was insufficient for him to provide for his own and their needs without assistance from his mother.


Orr v. Orr (United States Supreme Court, 1979)

The Supreme Court of the United States ruled in Orr v. Orr that gender based divorce statute which authorizes wives but not husbands, to be awarded alimony is unconstitutional.


Rodgers v. Rodgers (Appellate Division 2nd Dept. 1983)

The Appellate Division held in Rodgers v. Rodgers that retroactive payments of maintenance will be awarded only if the final award is in excess of any temporary maintenance award. Public policy is against any setoff or credits for overpayments when temporary maintenance exceeds a final award.


Scott M. v. Ilona M. (Supreme Court, Kings County 2011)

The Supreme Court issued a detailed analysis of the new temporary maintenance rules in Scott M. v. Ilona M. This decision articulates the problems in the temporary maintenance formula, and how these calculations are at odds with the revised laws for counsel fees.


Turret v Turret (First Department 2017)

In Turret v Turret, the First Department affirmed the Supreme Court's deviation from the temporary maintenance formula, which was higher than the guidelines. In doing so, the Supreme Court considered two factors, the difference in income and the standard of living. The deviation was explained in a written decision.


Wisseman v Wisseman (Supreme Court, Dutchess County 2019)

In Wisseman v Wisseman the Court considered the tax change to maintenance and found it a sufficient reason to lower the wife's maintenance award, which gave her the same amount had she still been required to report it as income.


 

Equitable Distribution in Matrimonial Actions


Adamo v. Adamo (Appellate Division 2nd Dept. 2005)

The court in Adamo v. Adamo reiterated the rule that prior to the marital status being changed, and absent consent, courts lack the authority, to direct the sale of the marital residence owned by the parties as tenants by the entirety.


Ball v Ball (Third Department 2017)

In Ball v Ball, the Third Department found the lower court failed to distributed a credit card debt which was used to pay for marital expenses.  


Brinkmann v Brinkmann (Second Department 2017)

In Brinkmann v Brinkmann, the Second Department affirmed the lower Court's determination of equitable distribution as it was based on the circumstances of the particular case and the consideration of a number of statutory factors.


Dolan v. Dolan (Court of Appeals 1991)

In Dolan v. Dolan, the Court of Appeals held that a portion of a disability pension is marital, equal to the value of what the pension would have been worth had the spouse not been disabled.


Elkus v. Elkus (Appellate Division 1st Dept. 1991)

The Appellate Division in Elkus v. Elkus held that an artistic career and celebrity status constitutes marital property subject to equitable distribution.


Elsayed v Edrees (Second Department 2016)

In Elsayed v Edrees, the lack of establishing a value on a marital asset precluded the court from distributing that asset.


Fields v Fields (Court of Appeals 2010)

In Fields v Fields, the Court of Appeals held that since marriage is an economic partnership, marital property is to be construed broadly and separate property is to be construed narrowly.


Galanopoulos v Galanopoulos (Second Department 2017)

In Galanopoulous v Galanopoulos the Court properly declined to direct the sale of the marital residence as the defendant obtained a credit which reflected his share of the home. If a party wishes the Court to consider the tax consequences when determining equitable distribution, that party must present competent evidence of the tax liabilities.


Grunfeld v. Grunfeld (Court of Appeals 2000)

In Grunfeld v. Grunfeld, the Court of Appeals reversed the Appellate Division, as it engaged in double dipping in modifying trial court's distributive and maintenance award. Once a court converts a specific stream of income into an asset, that income may no longer be calculated into the maintenance formula.


Hartog v. Hartog (Court of Appeals, 1995)

The holding of Price was expanded by the Court of Appeals in Hartog v. Hartog. The court held that the non titled spouse need only show some contribution to classify appreciation of separate property as marital.


Holterman v. Holterman (Court of Appeals 2004)

In Holterman v. Holterman, the Court of Appeals ruled that any formula that requires a deduction of a distributive award, including one made for future earnings, paid over a period of years from the licensed spouse's income for purposes of calculating child support is impermissible under the CSSA.


Johnson v. Chapin (Court of Appeals 2009)

In Johnson v Chapin, the Husband was properly given a separate property credit for inherited property. The appreciation was property held to be marital, but reduced the wife's award from 50% to 25% based on the husband having contributed far more than the wife to the appreciation.


Kaprov v Stalinsky (Second Department 2016)

Marital waste was found in Kaprov v Stalinsky when the husband abandoned several business ventures, causing a loss of $285,000. 


Klauer v Abeliovich (Second Department 2017)

In Klauer v Abeliovich, the Court restated the presumption that marital property is to be construed broadly while separate property is to be construed narrowly.


Larowitz v Lebetkin (First Department 2019)

In Larowitz v Lebetkin, an award of 5% in equitable distribution was affirmed. The Court rejected the argument that such awards were limited to egregious conduct, holding the court had broad discretion in awarding marital property.


Lipton v. Lipton (Supreme Court, New York County 1986)

In Lipton v. Lipton the court found that engagement rings are separate property.


Lisetza v. Lisetza (Appellate Division 3rd Dept. 1988)

The Appellate Division held in Lisetza v. Lisetza that post-marital conveyance of separate property into jointly held title converts them to marital property.


Lowe v Lowe (Second Department 2017)

The parties in Lowe v Lowe jointly owned the marital residence. Prior to the divorce being commenced, it was transferred to one party for $60,000. The Court held that while this transfer was not an enforceable agreement and the house was subject to equitable distribution, the transfer constituted a fair exchange under the facts of the case.


Majauskas v. Majauskas (Court of Appeals 1984)

In Majauskas v. Majauskas, the Court of Appeals held that vested pensions are marital property. This holding was expanded in later cases to include unvested and other retirement accounts.


Mahoney-Buntzman v. Buntzman (Court of Appeals 2009)

In Mahnoney-Buntzman, the New York Court of Appeals ruled that payments and expenses made before a divorce is contemplated will not be second guessed by the court. Instead, the court will look to the assets and obligations that exist when the marriage is at an end. A student loan taken out during the marriage and paid in full using marital assets will be divided between the parties. The court also ruled that a party in litigation may not take a position contrary to a position taken on a tax return.


Marin v Marin (Second Department 2017)

In Marin v Marin, the Second Department affirmed the lower court's decision to distribute debts incurred during the marriage as part of equitable distribution.


McSparron v. McSparron (Court of Appeals 1995)

In McSparron v. McSparron, the Court of Appeals rejected the merger doctrine of Marcus, and held that a professional license and practice do not merge. Instead, both must be valued.


Meier v. Meier (Appellate Division 2nd Dept. 1989)

Following a jury trial which granted a divorce on the grounds of cruel and inhuman treatment, the Appellate Division in Meir v. Meir reversed. Since the divorce was denied, the equitable distribution made by the trial court was vacated.


Nehorayoff v. Nehorayoff (Supreme Court, Nassau County 1981)

Nehorayoff v. Nehorayoff ruled that wedding gifts other than those which are peculiarly adaptable to the personal use of either spouse, and those gifts which are specifically and unequivocally 'earmarked' as intended exclusively for the one or the other of the spouses, commonly intended for general use in the household, are the joint property of both parties to the marriage and are therefore marital property subject to equitable distribution.


Newell v. Newell (Supreme Court, Queens County 1983)

In Newell v. Newell, the Supreme Court held that the value of the marital part of a disability pension is the present value less the value of the separate portion.


O'Brien v. O'Brien (Court of Appeals, 1985)

The landmark case of O'Brien v. O'Brien created a new concept of marital property when the Court of Appeals found that professional Licenses are marital property subject to equitable distribution under DRL 236 B. Direct awards under the O'Brien ruling was legislatively overruled in 2016 by an amendment to DRL 236 B(5), but indirect awards of enhanced earnings and licenses were expressly authorized.


Pangea Capital Mgt., LLC v Lakian (Court of Appeals 2019)

In Pangea Capital v Lakian, the Court of Appeals held that an award of marital property is more than a simple judgment creditor. A judgment acts as a final settling of all accounts between spouses and need not be docketed to have priority over non party creditors.  


Pierre v Pierre (First Department 2016)

In Pierre v Pierre, the First Department considered marital fault in modifying the award of property from a 50-50 division to 95% 5%. Marital fault is to be considered when it is so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship—misconduct that shocks the conscience of the court. That standard was met because the husband stabbed wife two times with a steak knife, slammed her head against the toilet and put it into the bowl, causing her to enter a coma, require months of hospitalization and five surgeries, and rendering her disabled. The husband had plead guilty to attempted assault in the first degree.


Price v. Price (Court of Appeals, 1986)

The Court of Appeals in Price v. Price held that appreciation of separate property is marital to the extent it results from the contributions of the non titled spouse. Holding expanded by Hartog.


Raviv v. Raviv (Appellate Division 2nd Dept. 1989)

In Raviv v. Raviv, the court held that property acquired during the marriage is presumed to be marital, this burden may be rebutted by the party seeking to show it is separate.


Robertson v. Robertson (Appellate Division, 2nd Dept. 1992)

In Robertson v. Robertson, the court held that when separate property is contributed towards marital property, a credit should be given equal to the value of the separate property prior to the equitable distribution of that asset.


Rosenberg v Rosenberg (Second Department 2016)

In Rosenberg v Rosenberg, the defendant's testimony alone, without additional documentation, was insufficient to overcome the presumption of a boat being marital property as it was acquired during the marriage. Separate property credits are given before the remaining value is equitably distributed. Financial obligations should also be distributed between the parties.


Schacter v Schachter (First Department 2017)

In Schacter v Schacter, the plaintiff's brief testimony about a piano being a gift was insufficient to rebut the presumption that property acquired during the marriage was marital property.


Sedgh v. Sedgh (Supreme Court, Nassau County 1989)

The Supreme Court of Nassau County in Sedgh v. Sedgh ruled that Domestic Relations Law § 236B does not authorize disposition of any asset under equitable distribution, including a marital home, prior to the severance of the marriage.


Trafelet v Trafelet (First Department 2017)

In Trafelet v Trafelet, the issue of using a summary judgment motion to partially resolve equitable distribution arose. While the motion itself was proper, the existence of disputed facts meant the motion itself must be denied.


Walczak v. Walczak (Appellate Division 4th Dept. 1994)

The Appellate Division in Walczak v. Walczak held that strained relations are insufficient to meet the high degree of proof required in a long-term marriage to establish cruel and inhuman treatment. As divorce was improperly granted by trial court, the marital property was not subject to equitable distribution.


 

Family Offense and Orders of Protection

Anthony B. v Judy M. (First Department 2018)

In

Custody of Minor Children


Adams v. Franklin (Appellate Division 3rd Dept. 2004)

In Adams v. Franklin, the Appellate Division held that modification of custody requires showing of substantial change in circumstances to insure best interests of child. Factors considered - length of current arrangement, fitness parents, ability to provide for child's development. Deterioration of relationship may constitute change in circumstances. Mother interfered with father's access to the child, made poor personal choices which affected child. Trial Court given great deference on appeal due to judge's ability to assess credibility of witnesses.


Aldous v. Aldous (Appellate Division 3rd Dept. 1984)

Court's view on religious beliefs constitutionally proscribed as basis for deciding custody. Aldous v. Aldous was affirmed on other grounds. Record showed abundant evidence to support determination of custody. Trial court's analysis of other factors fully supported in the record negated any implication that religion was an issue.


Auffhammer v. Auffhammer (Appellate Division 3rd Dept. 1984)

In Auffhammer v. Auffhammer, the Appellate Division ruled that informal custodial arrangements are one factor to be weighed in determining custody on the basis best interest given the totality of the circumstances. Mother, while not unfit, was less fit than the father, and had less concern for the emotional well-being the children than for her own life style. Evaluating the testimony is best left to the nisi prius court, which had the opportunity to see and hear witnesses.


Ball v Ball (Third Department 2017)

In Ball v Ball, the parties had shared custody, but the lower court incorrectly designated the father as having primary custody for purposes of calculating child support. This designation, while harmless, was corrected by the Third Department.


Bennett v. Jefferies (Court of Appeals 1976)

In Bennett v. Jefferies, the Court of Appeals held that a non parent may be granted custody over a parent only upon a showing of extraordinary circumstances.


Bergson v. Bergson (Appellate Division 2nd Dept. 1979)

In Bergson v. Bergson, the Appellate Division held that it was error to award joint custody when relationship between the parties is acrimonious. Error to allow 15 year old child to freely decide with whom he will live and for how long. Such discretion would make child the focal point of family discord and subject him to undue pressure. Child's wishes do not appear to have been based upon impulse, whim, or pressure, therefore preference entitled to great weight.


Bishop v. Lansley (Appellate Division 3rd Dept. 1984)

The Appellate Division in Bishop v. Lansley ruled that it was error to award joint custody when parents are unable to communicate and make rational, joint decisions. As children resided for an extensive time with petitioner and as there is no indication that a change would significantly enhance the children's well-being, the stability resulting from continuing the present arrangement is an important consideration.


Blank v. Blank (Appellate Division 4th Dept. 1986)

In Blank v. Blank, the court held that a parent's infidelity will be a consideration in a custody dispute only if it adversely affects the child's welfare. Trial court was heavily influenced by the mother's extramarital affair in denying her custody, despite that she was not neglectful of her children or unfit to handle the responsibilities of parenting.


Braiman v. Braiman (Court of Appeals, 1978)

The Court of Appeals in Braiman v. Braiman found that domestic relations law 240 grants the courts authority to award joint custody.


Coakley v. Goins (Appellate Division 2nd Dept. 1997)

The Appellate Division in Coakley v. Goins held that the record demonstrated that child thrived in the care of the father and members of his family since he obtained temporary custody, both the psychologist and law guardian recommended that the father retain custody.


Eastman v. Drennen (Appellate Division 3rd Dept. 1986)

Court transferred custody to father from mother, despite mother being primary caretaker of them. In Eastman v. Drennen, the court found that both parties showed sincere affection for their children, and mother attended to all their basic needs. However, she blocked the exercise of visitation rights by father numerous ways, the most dramatic being false child abuse accusations which subjected the four year old daughter to invasive and traumatic physical examination. While the longevity of mother's care is in her favor, her immaturity gravely reflects on her ability to handle the emotional development of the children. The likeliest assurance that the best interests of the children are served by awarding custody to father.


Elisa N. v Yoav I. (First Department 2019)

In Elisa N. v Yoav I. a summary judgment motion was appropriate to dispose of all matters as there were no disputed facts sufficient to warrant a full hearing. 


Eschbach v. Eschbach (Court of Appeals 1982)

In Eschbach v. Eschbach, the Court of Appeals held there are no absolutes in making a custody determination, there are policies which do not bind the courts but guide them in determining what is in the best interests of the child. When the parties have entered into a custody agreement, it is not as an absolute but as a weighty factor, and an agreement is but one factor to be weighed by the court in deciding whether a change of custody is warranted. Trial court was not bound by the stipulation of the parties but was required to review the totality of the circumstances to determine what would be in child's best interests.


Entwistle v. Entwistle (Appellate Division 2nd Dept. 1978)

The Appellate Division, 2nd Dept. held in Entwistle v. Entwistle that the intentional withholding of children in violation of a visitation order and relocation to another state without permission or court order warrants a hearing for contempt and possible change in custody.


Frank R. v. Deborah Ann R. (Appellate Division 2nd Dept. 1994)

The Appellate Division held in Frank R. v. Deborah Ann R. that the best interests of the children served by changing custody from their mother to their father. Court did not follow court appointed psychologist who recommended that custody remain with the mother. His recommendation was partially misrepresentations made to him which would have affected his recommendation. The mother substantially interfered with the relationship between the children and their father, frequently denying him visitation, telephone contact, and unsuccessfully tried to bar the father from attending each child's "First Holy Communion" ceremony.


Friederwitzer v. Friederwitzer (Court of Appeals 1982)

In Friederwitzer v. Friederwitzer, the Court of Appeals held the only absolute in the law governing custody of children is that there are no absolutes. Custody determined by circumstances and best interests of the child. No one factor is determinative. Stability is important, but disruption of change is determinative, the desires of the child are to be considered, priority given to the first custody awarded in litigation or by voluntary agreement, but prior agreement not absolute.


Grassi v. Grassi (Appellate Division 2nd Dept. 2006)

In Grassi v. Grassi, the Appellate Division held that a parent seeking a change in custody is not automatically entitled to a hearing, but must make some evidentiary showing sufficient to warrant a hearing.


Graham v. Graham (Appellate Division 3rd Dept. 2005)

The Appellate Division stated in Graham v. Graham that it was Improper for the law guardian to file a report or make a recommendation. Instead, the law guardian's job was to take a position which must be supported by the evidence on the record.


Harrington v. Harrington (Court of Appeals, 1943)

The Court of Appeals held in Harrington v. Harrington that marital fault may not be the decisive factor in the determination of custody.


Hatz v. Hatz (Appellate Division 3rd Dept. 1983)

In Hatz v. Hatz, the custodial mother was injured and became a paraplegic. Following a trial, the court continued mother's custody order, considering the effect of her disability as a custodial parent, as well as child's academic performance, social responses and activities, economic provision and child's wishes.


Heather SS. v Ronald SS. (Third Department 2019)

In Heather SS. v Ronald SS., the Third Department modified the Family Court's parenting schedule which let the child decide the time to be spent with the father. The Court found it was in the child's interest to have time with the father and nothing in the record indicated that depriving the father of parenting time was correct.


Ingalls v. Ingalls (Appellate Division 4th Dept. 1977)

Custody transferred to father in Ingalls v. Ingalls upon a finding that the mother's new boyfriend was an alcoholic, that there were many quarrels between them, and that on occasions, mother was unable to provide heat or adequate food for children.


Jacobs v. Jacobs (Appellate Division 2nd Dept. 1986)

The Appellate Division held in Jacobs v. Jacobs that custody cannot be measured solely on a qualitative basis. Consideration must be given to the availability of a parent to tend to the children's needs and to participate in their development. Custody options which allow for the direct care and guidance of children by a parent rather than by third parties are naturally preferred.


Juneau v. Juneau (Appellate Division 3rd Dept. 1997)

Interference with visitation can be basis for finding custodial parent unfit for that role, in totality of the circumstances, but in Juneau v. Juneau, the court found that the defendant's violations were insufficiently egregious to warrant a change of custody. Family Court justified in concluding children's welfare would not be substantially enhanced by change in custody, such a change would be detrimental as it would create additional, and unnecessary, stress, anxiety and disruption in their lives.


Karen PP v. Clyde QQ (Appellate Division 3rd Dept. 1993)

Karen PP v. Clyde QQ, held that after a hearing with expert testimony, Family Court found that the allegations of sexual abuse were fabricated by mother, and granted sole custody to father with no visitation to mother until the Probation Department set up counseling and made a recommendation to the court. The court found that mother had programmed the child to make the sexual abuse allegations in order to obtain sole custody and deny access to father.


King v. King (Appellate Division 3rd Dept. 1996)

Awarding two children to one parent and the third child to the other is appropriate based on the best interests of the children. The Appellate Division in King v. King held that while splitting siblings is to be avoided if possible, that factor alone is not dispositive.


Lincoln v. Lincoln (Court of Appeals 1969)

The Court of Appeals held in Lincoln v. Lincoln that an in camera interview with a child is appropriate during a custody proceeding.


Lionel PP. v Sherry QQ. (Third Department 2019)

In Lionel PP. v Sherry QQ., the Third Department found the lower court's reliance on a single factor to determine custody was not correct and remitted the matter for a new hearing. The lower court took several factors into account in modifying the custody order, but incorrectly conditioned a change in custody upon the child being matriculated in a new school making that the dispositive factor. 


Lowe v Lowe (Second Department 2017)

In Lowe v Lowe, the parties agreed on custody. At trial, the court properly found the custodial parent needed to occupy or own the marital home.


McCrocklin v. McCrocklin (Appellate Division 2nd Dept. 1980)

Wishes of 15 year old child must be considered but are not dispositive. In McCrocklin v. McCrocklin, the Appellate Division stated that the court must be convinced that the child is not acting impulsively, capriciously, or pursuant to pressure exerted by one parent. The child failed to prosper in the mother's home, and had begun to mirror the mother's depression. Child's preference was based in part on the lack of discipline at her mother's house, and while this was appealing to a 15 year old, it was not in her best interests in the long run, when combined with negative reinforcement of depressive behavior.


Newton v McFarlane (Second Department 2019)

In Newton v McFarlane, the Second Department reversed the lower court's award of custody to the mother. The lower court failed to explain its reasons, and failed to first determine if there was a change of circumstances. The Second Department also found the A.F.C. had standing to file an appeal and is authorized to prosecute an appeal on behalf of a child.


Pajek v Feketi (Fourth Department 2019)

In Pajek v Feketi, the Fourth Department affirmed the use of a motion for summary judgment to resolve the case without a hearing, as there were no disputed facts. The father was incarcerated for murdering the mother and the presumption is that the murdering parent should not have custody or visitation. The presumption is rebuttable under some circumstances, but the father failed to do so.


Pawelski v. Bucholtz (Appellate Division 4th Dept. 1983)

In Pawelski v. Bucholz, the court held that a parent's infidelity or sexual indiscretions should be a consideration in a custody dispute only if it can be shown that such factor may adversely affect the child's welfare.


Roberts v. Roberts (Appellate Division, 3rd Dept. 1986)

The Appellate Division held in Roberts v. Roberts that a disparity in financial resources will not be a significant factor in determining custody when part of the reason is the failure to pay child support.


Rosenberg v Rosenberg (Second Department 2016)

In Rosenberg v Rosenberg, the Second Department affirmed the lower court determination of custody as it had a sound basis in the record. When an initial custody determination is made, the courts must consider the best interests of the child, which includes maintaining stability, the child's wishes, the home environment with each parent, each parent's past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent


Royea v. Hutchings (Appellate Division 3rd Dept. 1999)

In Royea v. Hutchings, the Appellate Division modified a joint custody and granted the father sole custody upon finding that mother's home life had become "increasingly stressful and chaotic". Child was not thriving under present conditions, and the trial court concluded that father was capable of providing a more economically and emotionally stable home environment for the child.


Salk v. Salk (New York County, 1975) (Affirmed on Appeal)

In Salk v. Salk, the Supreme Court, New York County (affirmed on appeal without further opinion) held the fact that one parent is better able to offer the child adequate support than the other is not controlling in deciding custody. Custody may be awarded to the parent financially best able to care for the child's upbringing and education, and the lack of a permanent or suitable home or firm source of income may bar custody to the parent.


Sandman v. Sandman (Appellate Division 2nd Dept. 1978)

The Appellate Division held in Sandman v. Sandman that split custody of two children was proper. Twelve year old son remained with mother and there was no basis to disturb that arrangement. Fourteen year old daughter was estranged from mother and desired to live with father.


Saunders v. Saunders (Appellate Division 3rd Dept. 1977)

In Saunders v. Saunders, the Appellate Division reversed the trial court, holding that it improperly denied custody to mother based on her adulterous affair. The prospective educational opportunity a child has with each parent is a factor in determining custody.


Schussler v. Schussler (Appellate Division 2nd Dept 1985)

In Schussler v. Schussler, the Appellate Division held that although the courts are often reluctant to separate siblings, continuation of a split custody arrangement found to serve the best interests of the children.


Shali D. v Victoria V. (First Department 2019)

In Shali D. V Victoria V., the First Department affirmed the lower court, finding that it looked at the totality of the circumstances and did not rely on one factor too greatly. The child's wishes were not properly preserved for appellate review, but had they been, the Court found the child was not equipped to address which parent could better handle her learning challenges or mental health issues.


Sooy v. Sooy (Appellate Division 3rd Dept. 1984)

The Appellate Division held in Sooy v. Sooy that the failure to conduct in camera interview with child does not warrant a new hearing. No one factor controls in deciding custody and there are sufficient other factors to uphold trial court's decision. Any temporary disruption in child's life due to a change in residence is but one factor to be considered and is less important than child's long-term development.


Thomas J.D. v. Catherine K.D. (Appellate Division 2nd Dept. 1981)

In Thomas J.D. v. Catherine K.D., the trial Court awarded mother, who suffered from various mental illnesses, custody and directed that father to take custody whenever mother became disabled due to mental illness. In reversing, the appellate division sympathized with the mother but held that best interests and welfare of the child resolve custody disputes, not sympathy for the circumstances of the parent.


Tropea v. Tropea (Court of Appeals 1996)

The Court of Appeals case of Tropea v. Tropea is the leading case on New York relocation. The old three tier approach to relocation was abolished. Relocation of a minor child will be determined by the best interests of the child.


Walden v. Walden (Appellate Division 2nd Dept. 1985)

In Walden v. Walden, the Appellate Division held Custody stipulation may be modified when the totality of the circumstances warrants a modification in the best interests of the children. Stability is a consideration but not determinative, nor is child's preference. Father's attempts to alienate mother significant factor in awarding custody to mother.


Williams v. Boger (Appellate Division 3rd Dept. 2006)

In a joint custody order, the trial court gave the mother the final say in the event the parties could not reach a mutual agreement. In reversing, the appellate division held in Williams v. Boger that such a directive is antithetical to the concept of joint legal custody, especially given the parties' history of cooperation, there was simply no basis upon which to award petitioner superior decision-making authority.


Worowski v. Worowski (Appellate Division 1st Dept. 1983)

In Worowski v. Worowski, Joint custody was reversed on appeal as joint custody not favored when parents are severely antagonistic and embattled. Sole custody awarded to 54 year old mother with history of alcoholism. While not the perfect parent, she was deemed to be the more fit parent than the 74 year old father who is very rigid in his views, authoritarian in his discipline, bigoted in his views and delusional as to his status.


Young v. Young (Appellate Division 2nd Dept. 1995)

In Young v. Young, the Appellate Division held that a transfer of Custody from mother to father upon finding the mother was intentionally alienating the children from the father. In reversing, the Appellate Division noted the trial court failed to give reasons why it ignored the recommendation of the court psychologist and law guardian. Trial Court improperly followed mother's psychologist, who did not interview the father; such opinion is worthless.


Jurisdiction to Grant a Divorce


Williams v. State of North Carolina (United States Supreme Court 1945)

The Supreme Court in Williams v. North Carolina held that a court's jurisdictional basis to grant a divorce is based on domicile. A divorce which is granted by a court in which neither party is the domicile of is a nullity.


Rosenstiel v. Rosenstiel (Court of Appeals 1965)

In Rosenstiel, the New York Court of Appeals held that New York will recognize a foreign divorce issued by a court of foreign jurisdiction where neither party is domiciled, provided that both parties appear and consent to that court's jurisdiction.