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Recent Appellate Division Family Law Decisions- November 27, 2013

On November 27, 2013, the Second Department decided the following New York Family Law cases:

Kessler v. Kessler: In this action for divorce the Court denied the wife’s request for a credit of $20,000 for marital funds used to pay a premarital debt of the husband. The Court held that the parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected and the Court should not second guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end. Furthermore, the Court held that when determining an award of maintenance, the Court need not rely on a party’s own account of his or her finances, but may, in the exercise of considerable discretion, impute income to a party based upon his or her employment history, future earnings capacity, and educational background and what he or she is capable of earning, based upon prevailing market conditions and prevailing salaries paid to individuals with the party’s credentials in his or her chosen field. Based on the foregoing factors, the Court reduced the amount of income imputed to the wife from $65,000 to $30,000.

Dimaio v. Dimaio: In this action for a downward modification of a child support obligation the Court held that the party seeking the modification had the burden of showing a substantial and unanticipated change in circumstances because the support obligation arose prior to the 2010 amendments to the Family Court Act. Loss of employment may, at times, constitute a substantial and unanticipated change in circumstances. A party seeking a downward modification of their child support obligation based upon a loss of employment has the burden of demonstrating that he or she diligently sought to obtain employment commensurate with his or her earning capacity. Here, the father testified that he could not pay his child support obligation because he lost his job as a manager and head waiter of a restaurant. He was able to procure employment as a manager of a restaurant at a lesser salary, but could not find a position working in the dual capacity of a manager and head waiter. The court found that the father demonstrated that his loss of employment and obtainment of new employment at a lesser salary constituted a substantial and unanticipated change in circumstances, and that he made a good faith effort to obtain new employment which was commensurate with his qualifications and experience. Therefore, the Court granted the father a downward modification of his child support obligation based on his new income.

Bechette v. Feraud: The father’s petition for a downward modification of his child support obligation was denied because he failed to demonstrate a substantial change in circumstances warranting the modification. The Court held that a parent’s child support obligation is not necessarily determined by his or her current financial condition, but rather by his or her ability to provide support. Here, the father failed to demonstrate that he was unable to provide support at the same level as directed in a prior order. The medical documents he presented were inadmissible and insufficient to establish that his purported medical conditions prevented him from obtaining employment that was commensurate with his education and skills.

Anonymous v. Anonymous: In a child custody dispute between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances. Only if the nonparent meets this burden does the Court determine whether the best interests of the child warrant awarding custody to the nonparent. Here, the maternal grandmother was awarded custody of the subject child after she gave testimony regarding the unstable and unsafe living situation the mother created for the child through her drug use and her physically and verbally abusive behavior toward the child, which demonstrated the existence of extraordinary circumstances.


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