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Godfrey v Spano, 2007 NY Slip Op 27105, 2007 N.Y. Misc. LEXIS 853 (Westchester County 3/12/2007)
As discussed in my previous column, the recent Court of Appeals decision Hernandez v Robles, 7 NY3d 338, 821 NYS2d 770 (2006) held that the New York State Constitution does not compel the recognition of same-sex marriage in New York, and deferred to the legislatureís determination on the issue.

However, recently, Judge Lefkowitz of the Westchester County Supreme Court determined that the Westchester County Executive's Executive Order requiring county agencies to recognize same-sex marriages where validly contracted out-of-state, is lawful. The court distinguished the holding in Hernandez as prohibiting intrastate same-sex marriage, not prohibiting comity of validly executed same-sex marriages of foreign jurisdictions. The court reasoned that New York recognizes out-of-state marriages of heterosexuals that would have been invalid if made in New York if the marriage was valid where contracted even if the purpose was to evade New York law. Absent legislation or appellate court ruling that declares out-of-state same-sex marriages void in New York, though valid there, there is no positive law to prevent recognition of the marriage. The trial court is not bound by the holdings of courts of coordinate jurisdiction, and the trial court was not persuaded by the reasoning in Funderburke and Martinez that the New York Court of Appeals in Hernandez v. Robles has changed the law with respect to comity.

New Jersey Legislature Passes Civil Union Bill
As mentioned in my previous column, on December 14, 2007, our neighbor, New Jersey, voted 23 to 12 to recognize civil unions for same-sex couples, based on the New Jersey Supreme Courtís mandate to provide equal rights and financial benefits to gay couples. The legislature was permitted to decide whether to permit gay marriage or provide a separate parallel track. The bill was signed into law on February 19, 2007. Critics of the new bill deem that separate but equal is not equal, much like in the days of racial segregation.

Among the many new benefits under the civil unions law, gay couples gain the rights to adoption, child custody, visiting a hospitalized partner and making medical decisions, and the right not to testify against a partner in state court. However, the federal government does not recognize the unions, which means that certain important rights will not be recognized. For example, a surviving member of a civil union would not be entitled to his/her deceased partnerís Social Security benefits. If a partner is hospitalized in another state, and that state does not recognize the civil union, the other may not have an automatic visitation right.
New Jersey is the third state in our country to establish civil unions, joining Connecticut and Vermont. California offers domestic partnerships. Massachusetts is currently the only state to recognize gay marriage, and it has a residency requirement. In addition, our neighboring country Canada, recognizes gay marriage.

Court of Appeals Round-up
Equitable distribution and maintenance: rental property
Keane v Keane, 2006 NY Slip Op 9660 (12/21/2006)
The Court of Appeals determined that the Grunfeld prohibition against double-counting the income stream of an intangible professional license for purposes of equitable distribution and maintenance does not extend to the distribution of a tangible, income-producing asset.
The trial court awarded the husband a rental property and awarded the wife maintenance of $1,292 per month to continue through a period of time to coincide with the lease term of the property.
The Appellate Division modified, over a partial dissent, by deleting the $1,292 monthly maintenance award, reasoning that such sum was derived from impermissible "double counting" of the husband's income from the rental property after that income had been included in the valuation of the previously distributed property
The high court reversed and remitted the matter to the trial court, finding that double-counting does not occur with the rental property because the husband will not only receive rental income, but when the lease terminates, the property itself is a marketable asset separate and distinct from the lease payments.

Grandparent Visitation
E.S. v P,.D. OíLeary, NY Slip Op 1336, 2007 N.Y. LEXIS 118, 2007 (2/15/2007)
The maternal grandmother moved into her grandchildís home to care for him after the child's mother was diagnosed with cancer, and continued to live there and care for the child after the mother died, until the father asked her to leave some five years later. The trial court considered the father's right to rear the child but found the grandmother had a close relationship with the child and respected her and the father's separate roles in the child's life, and that no credible evidence supported his claim that she sought to usurp his parental role.

The high court determined that the grandparent in this case was properly granted visitation with her grandson pursuant to DRL: 72(1). The grandmother had automatic standing to sue for visitation since one of the childís parents was deceased. The court then determined that it was in the childís best interest to continue his close relationship with his grandmother. The father did not present competent proof that the grandmother attempted to usurp his parental role.
Moreover, the high court determined that the New York grandparent visitation statute is constitutional in view of the United States Supreme Courtís decision in Troxel v Granville, 530 US 57, 120 S Ct 2054 (2000)

Other Cases of Interest
Equitable Distribution
Equitable distribution of lottery winnings
Damon v Damon, ___AD3d____, 823 NYS2d 540 (2d Dept 2006)
The proceeds of a winning lottery ticket acquired by the husband during the marriage constituted marital property. Since the jackpot award was predominately the result of luck and not of either spouse's labor, the contributions to the marriage of each party had little relevance to the manner in which the lottery jackpot should be distributed. The wife was awarded only 25% of the proceeds.

Authorís note: There is no explanation why the wife was not awarded 50%, nor was there any other facts mentioned regarding the length of the partiesí marriage or respective finances. But see Ullah v Ullah, 161 AD3d 699, 555 NYS2d 834 (2d Dept 1990), lv to app den, 76 NY2d 704, 559 NYS2d 983 (1990) where the court divided the lottery winnings equally based on the same reasoning, that neither party contributed any labor to the winnings, and therefore neither should receive a windfall.

Pension Benefits
Stachowaski v Stachowaski, ___AD3d____, 825 NYS2d 416, 2006 (4th Dept 2006)

Pursuant to the terms of the partiesí separation agreement which was incorporated into the judgment of divorce, the wife was to receive 50% of the husbandís pension plan benefits in accordance with the Majaukas formula. The husbandís attorney objected to the wifeís second proposed QDRO, which provided, in part, that benefits to the wife may commence, at her option, at any time after the husband has attained eligibility to retire and that benefits would be payable for the duration of her lifetime. The trial court properly denied the motion to confirm the QDRO because this separate interest right was not explicitly stated in the agreement (see generally Kazel v Kazel, 3 NY3d 331, 819, 786 NYS2d 420 (2004) (in order to receive death benefits from a pension plan, the agreement and hence the QDRO must specifically state this separate and distinct interest) In addition, the court noted tin dicta that since the agreement did not specifically state that the wife was entitled to survivorship benefits, she was not entitled to it.


Authorís note: When drafting an agreement regarding pension benefits, the practitioner should be mindful to explicitly state that his/her client is entitled to pre and post retirement benefits.

Wallach v Wallach, 2007 NY Slip Op 1559, 2007 N.Y. App. Div. LEXIS 2126 (2d Dept 2007)
The lower court erred in failing to reduce the value of the husbandís pension by the portion of the value that is equivalent to Social Security benefits. As a member of the Federal Employees Civil Service Retirement System, the husband neither contributes to, nor is eligible to receive, Social Security benefits and his pension constitutes, in part, the Social Security benefits to which he would be entitled if he were not a federal employee.

Maintenance and Child Support
Nondurational maintenance
Grumet v Grumet, 2007 NY Slip Op 1253, 2007 N.Y. App. Div. LEXIS 1721 (2d Dept 2/13/2007)
The appellate court modified the divorce judgment by reducing the wifeís award of nondurational maintenance in the sum of $16,000 per month, nontaxable to the wife to the sum of $ 9,000 per month, taxable to the wife. The trial court improperly focused almost exclusively on the husband's income and assets to the exclusion of all other factors, including the reasonable needs of the wife, her ability to be self-supporting and the pre-separation standard of living. The wifeís updated net worth statement revealed that she needed $13,500/month for two people (her late son) but the trial courtís award was greater than that amount. The appellate court determined that the reduced amount of maintenance, combined with any investment income from her ďsubstantialĒ equitable distribution award and future potential employment, would be sufficient. In addition, the trial court failed to state any rationale for its decision to award nontaxable maintenance, which is a deviation from the norm envisioned by the IRC.
The appellate court reduced the wifeís award of counsel and expert fees in the sum of $260,636.48 to $130,318.24 because the wife will receive a ďlargeĒ distributive award and she possesses substantial assets which are sufficient to enable her to pay one-half of the litigation expenses.

Child Support: Definition of Income
Wallach v Wallach, 2007 NY Slip Op 1559, 2007 N.Y. App. Div. LEXIS 2126 (2d Dept 2007)
The CSSA requires that the court determine basic child support based on the partyís income as reported or should have been reported on his most recently filed tax return. Therefore, the court cannot exclude actual overtime wages nor average a party's earnings over several years.

The court properly deducted maintenance from the husbandís income before applying the CSSA, but improperly included the maintenance to be paid in determining the wifeís income for purposes of the CSSA. The court failed to state the amount of child support to be paid once maintenance terminates.
The trial court properly found that the wife was capable of earning $35,000 annually, based upon her education, past employment, and earnings potential, and therefore imputed that income to her.

Authorís note: There were no facts recited by the appellate division to support the imputation of income to the wife where she had no actual earnings.

Child Support: Emancipation
Matter of Cellamare v Lakeman, __ AD3d____, 829 NYS.2d 588 (2d Dept 2007)
The court found that the child was not emancipated despite the fact that he was not living in either parentís home since he was not economically independent since the childís father still provided the child with food, the child still received mail at his fatherís house and still had hies own telephone line at that house, and was still covered by his fatherís medical insurance.

Custody
Change in Joint Custody Agreement
The court below properly modified the partiesí joint custody agreement and awarded sole custody to the mother where the partiesí relationship three years after the execution of the agreement became acrimonious. Therefore, the mother showed a sufficient change in circumstances and the modification would serve the childís best interests.

Authorís note: The opinion does not state any facts to support its conclusion, and simply recited black letter law. Another example of the courtís failure to recite the facts of the case is Matter of Held v Gomez, 824 N.Y.S.2d 741(2d Dept 2006), where the court changed custody from the mother to the father and granted the mother supervised visitation.

Award of Custody to the Father
Allain v Allain, 826 N.Y.S.2d 411 ( 2d Dept 2006)

The father was awarded sole custody of the partiesí son, which was upheld on an appeal, One of the primary considerations of the court was that the father was more likely to assure meaningful contact between the son and the mother. The mother's animosity towards the father, demonstrated by the repeated filing of baseless charges against him, her questionable judgment with regard to her sonís health matters, and her lack of veracity on a number of issues, rendered her the less fit parent. In addition, the forensic psychologist also recommended that the father have custody.
Authorís note: The practitioner should warn his/her client that expressing animosity towards the other parent can be detrimental to the clientís quest for custody.

Counsel Fees
Charging Lien
Zelman v Zelman, 2007 NY Slip Op 27039; 2007 N.Y. Misc. LEXIS 281 (New York County 2/6/2007) J. Beeler
After representing a client in a matrimonial litigation for approximately one year, the client discharged the attorney, retained new counsel, and a few months later settled the case. The client owed the attorney $169,192 of $393,192 billed. The court granted the attorney's motion to enforce a charging lien in the amount owed, and referred the matter to a special referee for a hearing to determine the amount of legal fees due. The court also granted the attorneyís motion to place the amount allegedly owed in legal fees in escrow.
A charging liens does not attach to maintenance or child support awards, but can attach to equitable distribution awards. A charging lien is available pursuant to Judiciary Law 475 only where the attorney's efforts have created proceeds to which the lien may attach. But, where the attorney's services do not create any proceeds, but consist solely of defending a title or interest already held by the client, no lien on that title or interest can be awarded.

The client argued that the attorney's efforts on her behalf did not create any new funds in the form of equitable distribution to which a charging lien could attach. She claimed that the money she received represented her one-half interest in properties which she jointly owned with her husband. Therefore, she argued that the settlement awarded her equitable distribution equal only to the value of real property that she already had legal title to.

The court held that the $1.6 million payable to the wife in a lump sum was not a simple translation of her share of the marital property into cash, and thus immune to a charging lien. There were issues such as each of the partiesí respective separate property credits and the distribution of the husbandís business which was valued by the neutral expert at $785,000.. These respective claims would have affected the extent of the marital assets subject to equitable distribution.

The attorney's calculation that the $1.6 million settlement exceeded the wife's share of the actual real estate proceeds by at least $ 321,875 was reasonable. This amount represented the creation of a new fund by the attorney's efforts to which a charging lien could attach.

ABOUT THE AUTHOR: Wendy B. Samuelson
Wendy Samuelson is a partner at Samuelson, Hause & Samuelson, LLP and is the author of the column "Recent Cases and Trends" of the New York State Bar Association's quarterly Family Law Review (Summer 2002 - present).

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.