Litigation

Modification of Settlement Agreement Designed to Educate Children

In this case, the powers of the husband's Guardian were expanded to modify the parties' judgment of divorce to include the educational support of the parties' children. In the Matter of the Appointment of Carol Pitkewicz, Index. No. 13372/98, N.Y. Sup.Ct., Suffolk County, July 23, 2003.

Steven and Linda Cimino were divorced in 1992. Steven was required to maintain hospital and medical insurance coverage for the benefit of the parties' children during the time he was obligated to make child support payments. The parties' agreement was silent regarding the issue of college tuition payments. After the divorce, Steven suffered physical injuries that required the appointment of a Guardian. A Supplemental Needs Trust was established from which the Guardian paid certain of Steven's obligations, including child support, health and life insurance premiums, medical expenses and half of the annual college tuition costs for the parties' child, Anthony. The wife moved for an order expanding the Guardian's powers to provide, inter alia, for the educational support of the parties' other two children, Stefany and Joseph. The court (a non-matrimonial part) granted the wife's motion to expand the Guardian's powers, but made no determination regarding the wife's substantive issues and referred those issues to the matrimonial part. The court also noted that if Steven's Guardian wished to obtain counsel, she was required to choose from a prearranged list of appropriate counsel for Guardians.

Unequal Division of Marital Property

A party seeking to have certain assets declared as separate property bears the burden of proof on that issue. Upchurch-Embler v. Embler, No. COA02-279, N.C.Ct. App., July 15, 2003.

The parties were married in 1976 and divorced in 1996. The wife, a teacher with a master's degree, earned $35,000 per year and the husband held a management position with Bell South, earning $69,000 per year. The wife was awarded 60% of the marital estate and the husband was required to make a lump sum payment to the wife of $24,000, 60 days after the divorce. As part of the division of the marital estate, the court concluded that the husband's pension plan was 100% marital. The husband appealed, arguing he had no liquid assets to make the payment of $24,000 to the wife. The husband also argued that the unequal division of the marital estate was inequitable and that the court improperly labeled his pension plan as 100% marital. The appellate court held that the trial court's findings of fact were insufficient. First, it held that the trial court should have considered the nature of the husband's assets before making an order to transfer a lump sum cash payment to the wife of $24,000. The appellate court held that if, in fact, the husband did not have any liquid assets to make a lump sum payment to the wife, the trial court was required to make such a determination and then decide how the husband should pay the amount, including any adjustments to offset any adverse financial consequences of using non-liquid assets. Second, the court held that the trial court failed to specify the factors it considered when making a division of 60/40 in favor of the wife. Although such a division is not impermissible, the court was required to specify the factors it considered when making the award. Finally, although the husband contributed to his BellSouth pension plan for 8 years prior to the parties' marriage, the husband failed to introduce any evidence of the premarital portion and stipulated that the entire pension was marital. The appellate court held that the defendant bore the burden of proving which part of the pension was separate, and failed to do so. Therefore, he was not entitled to any credit for the separate portion of the pension. The appellate court remanded the matter for further proceedings consistent with its opinion.

Wife Wins 50% of Assets via Lump Sum and 'Alimony'

In a long-term marriage where the husband was the primary wage earner, the appellate court approved an award to the wife of 50% of the marital assets by a partial lump sum payment and a partial payout labeled “alimony”; the husband was ordered to pay the wife's attorney's fees. Klauser v. Klauser, No. 2002-CA-00269-COA, Mo.Ct.App., July 22, 2003.

The parties were married in 1970 and separated in 1999. The husband was a veterinarian and the primary financial provider during the marriage. The wife had supported the husband as a teacher when the parties were first married and he attended veterinary school. The wife then worked in the husband's veterinary practice until 15 years prior to the termination of the marriage, when she went back to teaching. The trial court awarded the wife $122,749 of the marital assets and the husband was awarded $216,106. The difference, totaling $93,357, was awarded to the wife in monthly installments of $1000 per month payable as “alimony” by the husband until the sum was paid in full. The husband was also ordered to pay the wife's attorney's fees. The appellate court affirmed the order of the trial court. It held that the large difference in the parties' incomes warranted the monthly installments of $1000 per month as alimony to the wife. The property distribution was appropriate because the court properly considered all factors required by the State of Mississippi to make a proper distribution of property, including, inter alia, the economic contributions of the parties, contribution to the education of each of the spouses, the needs of the parties, and any other factor that the court might deem significant. The award of attorney's fees to the wife was also appropriate because the husband was in a superior financial position.

Modification of Settlement Agreement Designed to Educate Children

In this case, the powers of the husband's Guardian were expanded to modify the parties' judgment of divorce to include the educational support of the parties' children. In the Matter of the Appointment of Carol Pitkewicz, Index. No. 13372/98, N.Y. Sup.Ct., Suffolk County, July 23, 2003.

Steven and Linda Cimino were divorced in 1992. Steven was required to maintain hospital and medical insurance coverage for the benefit of the parties' children during the time he was obligated to make child support payments. The parties' agreement was silent regarding the issue of college tuition payments. After the divorce, Steven suffered physical injuries that required the appointment of a Guardian. A Supplemental Needs Trust was established from which the Guardian paid certain of Steven's obligations, including child support, health and life insurance premiums, medical expenses and half of the annual college tuition costs for the parties' child, Anthony. The wife moved for an order expanding the Guardian's powers to provide, inter alia, for the educational support of the parties' other two children, Stefany and Joseph. The court (a non-matrimonial part) granted the wife's motion to expand the Guardian's powers, but made no determination regarding the wife's substantive issues and referred those issues to the matrimonial part. The court also noted that if Steven's Guardian wished to obtain counsel, she was required to choose from a prearranged list of appropriate counsel for Guardians.

Unequal Division of Marital Property

A party seeking to have certain assets declared as separate property bears the burden of proof on that issue. Upchurch-Embler v. Embler, No. COA02-279, N.C.Ct. App., July 15, 2003.

The parties were married in 1976 and divorced in 1996. The wife, a teacher with a master's degree, earned $35,000 per year and the husband held a management position with Bell South, earning $69,000 per year. The wife was awarded 60% of the marital estate and the husband was required to make a lump sum payment to the wife of $24,000, 60 days after the divorce. As part of the division of the marital estate, the court concluded that the husband's pension plan was 100% marital. The husband appealed, arguing he had no liquid assets to make the payment of $24,000 to the wife. The husband also argued that the unequal division of the marital estate was inequitable and that the court improperly labeled his pension plan as 100% marital. The appellate court held that the trial court's findings of fact were insufficient. First, it held that the trial court should have considered the nature of the husband's assets before making an order to transfer a lump sum cash payment to the wife of $24,000. The appellate court held that if, in fact, the husband did not have any liquid assets to make a lump sum payment to the wife, the trial court was required to make such a determination and then decide how the husband should pay the amount, including any adjustments to offset any adverse financial consequences of using non-liquid assets. Second, the court held that the trial court failed to specify the factors it considered when making a division of 60/40 in favor of the wife. Although such a division is not impermissible, the court was required to specify the factors it considered when making the award. Finally, although the husband contributed to his BellSouth pension plan for 8 years prior to the parties' marriage, the husband failed to introduce any evidence of the premarital portion and stipulated that the entire pension was marital. The appellate court held that the defendant bore the burden of proving which part of the pension was separate, and failed to do so. Therefore, he was not entitled to any credit for the separate portion of the pension. The appellate court remanded the matter for further proceedings consistent with its opinion.