Decisions of Interest

The court noted that if the parties were married, the husband would not be able to bring a summary proceeding to evict the wife until other existing obligations were addressed by a court and the marriage terminated. However, even though these parties had not solemnized their relationship, they had two children together and had cohabited and mingled their funds for several years, creating a de facto family. Therefore, although the respondent does not hold the legal status of a wife, she is nevertheless more than a licensee who can be forced to leave at the homeowner's whim. In addition, as father to the couple's children, the petitioner has a duty to support and shelter his children. Thus, the court concluded, “Petitioner should not be permitted to circumvent or ignore this obligation by evicting his children in this proceeding … The parties' legal responsibilities should be handled before one court whereby all pertinent aspects of their obligations of support may be addressed.” Accordingly, the petition was dismissed.

Father's Bid to Change Visitation Schedule Fails

The Appellate Division, First Department, affirmed the Supreme Court, New York County's denial of a father's application to change his visitation schedule with his children, finding he had shown only that the change would make visits more convenient for himself. Steck v. Steck, N.Y. App. Div. LEXIS 8644, (App. Div., 1st Dept., 8/7/03) (Nardelli, J.P., Tom, Rosenberger, Gonzalez, J.J.).

Incorporated but not merged into the parties' divorce agreement was a separation agreement calling for shared custody, with the father having visitation with the children on alternate weekends and two nights during the week. Pending final resolution of the dissolution proceeding, the father voluntarily moved to California, his home state, where he bought a ranch. He was well enough off that he was able to return to New York twice a month to visit the children. Because of the inconvenience of this arrangement, the father petitioned the court to alter the visitation schedule so that he could have physical custody of the children for 7 to 10 consecutive days per month. The lower court declined to modify the terms of the agreement, as the father could not cite to a change in circumstances warranting such modification and could not show that the agreed-upon visitation arrangements were in any way harmful to the children. The First Department here affirmed.

Husband's Extra-Marital Spending Spree Costs Him

A husband who took $100,000 from his 401(k) plan to finance his adulterous affairs was not entitled to a credit for the money he spent to improve the parties' second home and to pay its mortgage, as the dissipated funds more than covered the amount of his expenses and cancelled them out. Doute v. Doute, N.Y.L.J. 8/4/03, Vol. 230; Pg. 17, col. 1 (Sup. Ct., IA Part 14, New York Cty.) (Stackhouse, J.).

After 21 years of marriage, plaintiff wife sued for divorce. The parties' limited resources included a home and trailer in Tallahassee, FL, a 401(k) savings account and a Virgin Islands time-share. The court found that defendant husband had maintained absolute control over the parties' “joint” checking account and had willfully dissipated over $100,000 of the once $170,000 in marital funds from the 401[k] account in order to support his adulterous affairs. He had also squandered an additional $70,000, for which he could give no accounting to the court.

The court awarded plaintiff title, possession and use of the Tallahassee property, concluding that defendant's dissipation of funds cancelled any expenses he contributed in repairing and improving the property, to which he was no more than a visitor. It also ruled that defendant's dissipation of the 401(k) account cancelled plaintiff's share of $37,600 of marital debt. The Virgin Islands time-share was ordered to be sold, with its proceeds equally divided between the parties. Real property and a trailer home in Havana, FL., were deemed to be plaintiff's separate property.

No Interim Child Support for Evasive Father

A husband's request for an order of interim child support was denied because he gave conflicting information to the court concerning his income and assets, appeared to be influencing his children to refuse to visit with their mother, and repeatedly avoided court-ordered drug-test appointments. DeLeonardis v. DeLeonardis, N.Y.L.J. 8/1/03, DOI; Vol. 230; Pg. 19, col. 3 (Sup. Ct., Integrated Domestic Violence Part, Bronx Cty.) (Kiesel, J.).

Support Orders Preclude Action for Necessaries

Because a judgment of divorce established the standard of support for the period in time that plaintiff sought necessaries, there was no cause of action for necessaries available. Roach v. Mamakos, N.Y.L.J. 8/29/03, DOI; Pg. 22, col. 3 (Sup. Ct., Nassau Cty.) (Jonas, J.).

Plaintiff, father of defendant's former wife, brought an action for necessaries against defendant, seeking $1500 in monthly rent arrears from May 2000 until June 2002. (At common law, there is a rebuttable presumption that necessaries purchased by a married woman are purchased by her as agent of her husband.) Defendant and plaintiff's daughter had for several years rented their marital residence from plaintiff. After defendant's departure from the home, plaintiff let his daughter and grandchildren continue to reside there, rent-free. Although plaintiff served an eviction notice on them, he never enforced it.

In May 2000, plaintiff's daughter brought a divorce action. A pendente lite order awarded her child support. After trial, she was awarded retroactive maintenance and child support. The court found that the pendente lite order of support and the final support orders entered on the judgment of divorce fixed the amount of the defendant son-in-law's liability for support. Although the court denied plaintiff's necessaries action based on the pendente lite order and divorce judgment for maintenance and support, it observed that plaintiff failed to show that allowing his daughter and grandchildren to remain on the premises was not a gift. It also noted that plaintiff's failure to name his daughter as a necessary party was fatal under Civil Practice Law and Rules ' 3211(a)(10), noting that she was a holdover incurring a use and occupancy debt.

Court Won't Evict Longtime Live-in Girlfriend

Petitioner brought this licensee-holdover proceeding to recover possession of his Staten Island home on the grounds that he had revoked his girlfriend's license to occupy the premises, but the court dismissed the action, holding that although the couple were never married, their relationship was tantamount to a family relationship such that their dispute should be heard in Family Court. DeJesus v. Rodriguez, 2003 N.Y. Misc. LEXIS 1053, (Civ. Ct. of the City of New York, Richmond Cty., 8/7/03) (Birnbaum, J.).

Petitioner and respondent lived together for 10 years and are the parents of two children, ages 5 and 8. Petitioner's name is the only one on the deed to the home because, respondent asserted, her credit history at the time the home was purchased would have hindered the sale. Nevertheless, she claimed to have contributed to the down payment and to the mortgage payments. In January 2003, the parties had a violent argument, after which petitioner vacated the home. Later, respondent obtained a permanent order of protection forbidding petitioner to come near her except to visit with his children. A child support proceeding is currently pending in Family Court.

The court noted that if the parties were married, the husband would not be able to bring a summary proceeding to evict the wife until other existing obligations were addressed by a court and the marriage terminated. However, even though these parties had not solemnized their relationship, they had two children together and had cohabited and mingled their funds for several years, creating a de facto family. Therefore, although the respondent does not hold the legal status of a wife, she is nevertheless more than a licensee who can be forced to leave at the homeowner's whim. In addition, as father to the couple's children, the petitioner has a duty to support and shelter his children. Thus, the court concluded, “Petitioner should not be permitted to circumvent or ignore this obligation by evicting his children in this proceeding … The parties' legal responsibilities should be handled before one court whereby all pertinent aspects of their obligations of support may be addressed.” Accordingly, the petition was dismissed.

Father's Bid to Change Visitation Schedule Fails

The Appellate Division, First Department, affirmed the Supreme Court, New York County's denial of a father's application to change his visitation schedule with his children, finding he had shown only that the change would make visits more convenient for himself. Steck v. Steck, N.Y. App. Div. LEXIS 8644, (App. Div., 1st Dept., 8/7/03) (Nardelli, J.P., Tom, Rosenberger, Gonzalez, J.J.).

Incorporated but not merged into the parties' divorce agreement was a separation agreement calling for shared custody, with the father having visitation with the children on alternate weekends and two nights during the week. Pending final resolution of the dissolution proceeding, the father voluntarily moved to California, his home state, where he bought a ranch. He was well enough off that he was able to return to New York twice a month to visit the children. Because of the inconvenience of this arrangement, the father petitioned the court to alter the visitation schedule so that he could have physical custody of the children for 7 to 10 consecutive days per month. The lower court declined to modify the terms of the agreement, as the father could not cite to a change in circumstances warranting such modification and could not show that the agreed-upon visitation arrangements were in any way harmful to the children. The First Department here affirmed.

Husband's Extra-Marital Spending Spree Costs Him

A husband who took $100,000 from his 401(k) plan to finance his adulterous affairs was not entitled to a credit for the money he spent to improve the parties' second home and to pay its mortgage, as the dissipated funds more than covered the amount of his expenses and cancelled them out. Doute v. Doute, N.Y.L.J. 8/4/03, Vol. 230; Pg. 17, col. 1 (Sup. Ct., IA Part 14, New York Cty.) (Stackhouse, J.).

After 21 years of marriage, plaintiff wife sued for divorce. The parties' limited resources included a home and trailer in Tallahassee, FL, a 401(k) savings account and a Virgin Islands time-share. The court found that defendant husband had maintained absolute control over the parties' “joint” checking account and had willfully dissipated over $100,000 of the once $170,000 in marital funds from the 401[k] account in order to support his adulterous affairs. He had also squandered an additional $70,000, for which he could give no accounting to the court.

The court awarded plaintiff title, possession and use of the Tallahassee property, concluding that defendant's dissipation of funds cancelled any expenses he contributed in repairing and improving the property, to which he was no more than a visitor. It also ruled that defendant's dissipation of the 401(k) account cancelled plaintiff's share of $37,600 of marital debt. The Virgin Islands time-share was ordered to be sold, with its proceeds equally divided between the parties. Real property and a trailer home in Havana, FL., were deemed to be plaintiff's separate property.

No Interim Child Support for Evasive Father

A husband's request for an order of interim child support was denied because he gave conflicting information to the court concerning his income and assets, appeared to be influencing his children to refuse to visit with their mother, and repeatedly avoided court-ordered drug-test appointments. DeLeonardis v. DeLeonardis, N.Y.L.J. 8/1/03, DOI; Vol. 230; Pg. 19, col. 3 (Sup. Ct., Integrated Domestic Violence Part, Bronx Cty.) (Kiesel, J.).

Support Orders Preclude Action for Necessaries

Because a judgment of divorce established the standard of support for the period in time that plaintiff sought necessaries, there was no cause of action for necessaries available. Roach v. Mamakos, N.Y.L.J. 8/29/03, DOI; Pg. 22, col. 3 (Sup. Ct., Nassau Cty.) (Jonas, J.).

Plaintiff, father of defendant's former wife, brought an action for necessaries against defendant, seeking $1500 in monthly rent arrears from May 2000 until June 2002. (At common law, there is a rebuttable presumption that necessaries purchased by a married woman are purchased by her as agent of her husband.) Defendant and plaintiff's daughter had for several years rented their marital residence from plaintiff. After defendant's departure from the home, plaintiff let his daughter and grandchildren continue to reside there, rent-free. Although plaintiff served an eviction notice on them, he never enforced it.

In May 2000, plaintiff's daughter brought a divorce action. A pendente lite order awarded her child support. After trial, she was awarded retroactive maintenance and child support. The court found that the pendente lite order of support and the final support orders entered on the judgment of divorce fixed the amount of the defendant son-in-law's liability for support. Although the court denied plaintiff's necessaries action based on the pendente lite order and divorce judgment for maintenance and support, it observed that plaintiff failed to show that allowing his daughter and grandchildren to remain on the premises was not a gift. It also noted that plaintiff's failure to name his daughter as a necessary party was fatal under Civil Practice Law and Rules ' 3211(a)(10), noting that she was a holdover incurring a use and occupancy debt.