New York, NY
Appeals Lawyer at New York, NY
Practice Areas: Appeals, Family
OUTCOME: Client successful
The Appellate Division modified the judgment of divorce to provide, inter alia, that the value of the contingency fee cases in the husbands law practice, commenced during the marriage is to be determin ... ed by comparing the percentage of time spent by defendant during the marriage with the total time he spent in reaching each ultimate recovery; and the case was remanded for consideration of equitable distribution based on that methodology,
OUTCOME: Client successful
Court of Appeals held, inter alia, that the letter and spirit of its holding in O'Brien is best served by eliminating the concept of "merger" . The merger doctrine should be discarded in favor of a com ... monsense approach that recognizes the ongoing independent vitality that a professional license may have and focuses solely on the problem of valuing that asset in a way that avoids duplicative awards. O'Brien permits the court to include in the marital estate the present value of any increased earning capacity attributable to a professional license earned during the marriage. That increased earning capacity continues to exist, to a greater or lesser degree, throughout the life of the license. Even after the licensee has had the time and opportunity to exploit the license and to realize a portion of the enhanced earning potential it affords, the license itself retains some residual economic value, although in particular cases it [*286] may be nominal. That value can be measured and distributed just as a newly acquired license is valued through various actuarial techniques that are well known to valuation experts.
OUTCOME: Client successful
The Appellate Division held, inter alia, that a party may not perfect a cross appeal by using the record furnished by the appellant, absent the consent of the appellant. Therefore, the wife's cross app ... eals were dismissed. It also held that in arriving at a valuation of a marital asset, a trial court must state the valuation date it selects and the reasons therefor. It should also set forth the method by which it arrived at that value . In assigning a value of $350,000 to the husband's business in this case, the trial court did neither, and the reasons for its determination do not appear on the face of the record. There was insufficient information in the record which would enable a court to arrive at an appropriate valuation. It, therefore, remitted this matter to the court of first instance for further proceedings and for a new determination based upon proper findings of fact
OUTCOME: Client successful
The Appellate Division held that a defendant challenging the provisions of a separation agreement which is incorporated into a judgment of divorce, to survive, must challenge these provisions by commen ... cing a plenary action on the agreement itself, rather than by a motion to vacate the judgment. Where a separation agreement executed by the parties does not merge into the judgment of divorce but survives as a separate contract. Accordingly, even if Special Term had granted the defendant's application and modified the terms of the divorce judgment, or vacated the judgment in its entirety, the plaintiff's contractual rights and remedies with respect to the child support allocation and to the property provision contained in the underlying agreement would have remained unimpaired. The defendant should, therefore, have proceeded by way of a direct attack on the separation agreement and not the judgment.
OUTCOME: Client successful
The Appellate Division held that a defendant challenging the provisions of a separation agreement which is incorporated into a judgment of divorce, to survive, must challenge these provisions by commen ... cing a plenary action on the agreement itself, rather than by a motion to vacate the judgment. Where a separation agreement executed by the parties does not merge into the judgment of divorce but survives as a separate contract. Accordingly, even if Special Term had granted the defendant's application and modified the terms of the divorce judgment, or vacated the judgment in its entirety, the plaintiff's contractual rights and remedies with respect to the child support allocation and to the property provision contained in the underlying agreement would have remained unimpaired. The defendant should, therefore, have proceeded by way of a direct attack on the separation agreement and not the judgment.
OUTCOME: Client successful
The New York Court of Appeals reversed the order of the Appellate Division and the matter was remitted for a hearing to determine whether defendant's alleged inability to be self-supporting is such as ... to warrant an upward modification of maintenance. The Court held that since defendant was seeking modification of maintenance on the basis of her "inability to be self-supporting" (Domestic Relations Law § 236 [B] [9] [b]), allegations of change in circumstance were not necessary in order for the court to grant a hearing on whether modification was warranted. As long as the party seeking modification on the basis of "inability to be self-supporting" presents allegations sufficient to raise an issue of fact as to whether he or she has been unable to be self-supporting, as defendant did here, the court should refer the matter for a hearing on whether modification is warranted. Accordingly, inasmuch as it could not be said that defendant's allegations of inability to find employment over a six-week period were insufficient to justify upward modification of maintenance on "inability to be self-supporting" grounds as a matter of law, a hearing was ordered.
OUTCOME: Client successful
In this case Special Term held that, since the advent of the Equitable Distribution Law, the courts of our State are empowered to grant interim maintenance, support or other ancillary relief in an acti ... on which seeks, inter alia, a declaration of nullity of a foreign judgment of divorce which was entered prior to July 19, 1980, the effective date of the Equitable Distribution Law (Domestic Relations Law, §236, part B). The Appellate Division affirmed.
OUTCOME: Client successful
In this case Special Term held that, since the advent of the Equitable Distribution Law, the courts of our State are empowered to grant interim maintenance, support or other ancillary relief in an acti ... on which seeks, inter alia, a declaration of nullity of a foreign judgment of divorce which was entered prior to July 19, 1980, the effective date of the Equitable Distribution Law (Domestic Relations Law, §236, part B). The Appellate Division affirmed.
OUTCOME: Client successful
The New York Court of Appeals held that notwithstanding defendant's claim that plaintiff's true motive in seeking a discontinuance was to bring another action in which equitable distribution would be a ... vailable, it was not improper for the Appellate Division to have granted the discontinuance with prejudice to the institution of a subsequent matrimonial action based on any conduct which might have been the basis for an action prior to January 7, 1983.
OUTCOME: Client successful
The Appellate Division held that although pendente lite awards for the services of certain experts is authorized in matrimonial actions governed by the Equitable Distribution Law, these awards should n ... ot be granted routinely. Rather, they must be based upon sound judicial discretion after weighing applications which set forth in detail (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.
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