Decisions of Interest

Wife's Stolen Diary May Be Suppressed

A wife whose diary was stolen by her husband succeeded in having its contents suppressed in her husband's direct action against her, but the husband retained the right to use its contents for impeachment purposes. Robinson v. Robinson, N.Y.L.J. 2/4/03 (Sup. Ct., New York Cty., IA Part 50L) (Silbermann, J.).

In a divorce action, the defendant wife claimed that her husband had stolen her diary and used the information in it to add a cause of action alleging that he had been fraudulently induced into signing an antenuptial agreement. The wife sought the fraud charge's dismissal or alternatively, the diary's suppression. Plaintiff husband claimed that the book was in plain view and that he 'borrowed' it in order to make a copy and to avoid spoliation of evidence. He admitted to amending his complaint after reading the entire diary.

The court prohibited the diary's introduction as evidence in the husband's direct case but permitted its use to impeach the wife's credibility. The court ruled that plaintiff had improperly obtained the diary despite having the opportunity to legitimately secure it as evidence pursuant to CPLR ' 3102[c]. It refused dismissal of the fraud charge, because neither plaintiff's conduct nor the seriousness of the prejudice sustained by the wife reached the levels required under Lipin v. Bender, 84 N.Y.2d 562.

Noncustodial Father Cannot Claim Children As Tax Deductions

A noncustodial father who moved for an order permitting him to claim his children as tax deductions was denied on the basis that absent a waiver by the custodial parent, that parent has the right to claim the child as a dependent. Goodman v. Goodman, N.Y.L.J. 2/7/03 (Sup. Ct., Queens Cty., MM Part 52) (Gavrin, J.).

The parties had orally agreed to divorce settlement terms regarding equitable distribution and child support. Defendant former husband, the non-custodial parent, moved for an order permitting him to claim his infant children as income tax deductions. Plaintiff former wife opposed, arguing that because the stipulation was silent on the issue of tax benefits, the Internal Revenue Code requires that the custodial parent be given the benefit of any available tax deduction.

The court denied defendant's motion. Looking to 26 U.S.C.A. ' 152 ' an Internal Revenue Code provision that defines an income tax deductible dependent ' the court reasoned that unless the right is waived, the custodial parent is entitled to any tax deduction benefit provided by claiming a child as a dependent. The court noted that defendant father had not provided evidence of a written declaration that the custodial parent would not claim the children as dependents for any taxable year beginning in the calendar year.

Non-paying Father Held in Contempt After Stating He Cannot Pay

The court refused to vacate a commitment order issued after it found a father in contempt for failing to pay child support, finding that the father had not provided documentation to prove that he was unable to pay. Isaacs v. Isaacs, N.Y.L.J. 7/14/03 (Sup. Ct., New York Cty.) (Drager, J.). A bankruptcy court order previously discharged defendant's dischargeable debts, but not his debts to plaintiff. Additionally, the parties had stipulated that defendant's child support arrears were not discharged.

The court denied vacatur of the commitment order and its contempt finding. It rejected defendant's argument, among others, that the bankruptcy court's discharge should satisfy the court that he was incapable of purging himself of contempt. The court, noting defendant's repeated failure to provide documentation concerning his personal finances or those of his company, which he had claimed to have closed, determined that defendant had failed to establish, pursuant to Domestic Relations Law
' 246, that he was financially unable to make the ordered payments. The bankruptcy proceeding also lent no support to defendant's claim of changed circumstances.

Wife Granted Motion for Leave to Serve Verified Claim

The court granted a wife's motion for leave to serve a verified claim for necessaries in addition to a cause of action for divorce, as the addition of claim for necessaries would neither delay nor prejudice the defendant husband. Lavery v. Moser, N.Y.L.J. 2/10/03 (Sup. Ct., Nassau Cty.) (Raab, J.).

Defendant wife sought leave to serve a verified claim for necessaries as well as a cause of action for divorce grounded on abandonment. The court granted defendant wife's motion, holding that plaintiff husband had not sufficiently established prejudice to deny defendant leave to interpose her claim. The court observed that there had been extensive pre-trial litigation regarding the parties' finances. It also determined that because none of the financial issues had been resolved, the addition of a defendant wife's claim for necessaries would neither delay nor prejudice plaintiff. The court found that defendant's claim for necessaries was intertwined with larger financial issues such as the parties' standard of living and their respective financial resources. Additionally, the court determined that when a claim for necessaries is made when the parties are living apart, the issue of fault for the separation is an element of that claim.

Non-Biological Father Estopped from Denying Paternity

The court found that under the exceptional circumstances presented in this case, the respondent father was stopped from denying paternity even though he was not the children's biological father. Matter of Gila K. v. Farag K., N.Y.L.J. 2/7/03 (Fam. Ct.) (Goldstein, Referee).

Petitioner, the mother of two children, petitioned the court on their behalf to declare the man who had held himself out to be their father as their legal father. Respondent had met the children's mother after they were born, but the children were at that time too young to remember a time when he was not a part of their lives.

The respondent, although knowing he was not the biological father, had for 10 years held himself out as such, giving the children his surname and telling them that he was their father. During this time, respondent got married to the petitioner and had a biological son with her. When respondent left the marital home in 2000, he told the children he loved them and would return, but he has since attempted primarily to keep in contact with his biological child and not with the other two children. After his departure, the mother petitioned for a declaration of paternity.

The court here stated that it had found no reported cases in New York 'utilizing the doctrine of equitable estoppel under exactly the fact pattern presented here ' where a woman comes to a marriage with young out-of-wedlock children who are sought to be declared the legal children of the mother's husband. However, the doctrine is flexible enough to incorporate a variety of scenarios affecting paternity when equity and the interests of the child or children so demands.'

The court noted as significant the facts that the children's names had been changed with respondent's permission, he had claimed them as dependents on his tax returns and on his immigration papers and he had told school officials that he was their father. In addition, because all parties are Orthodox Jews, declaring the children illegitimate would have held them out to ridicule within their community and might even have interfered with their future marriageability. Finally, declaring the respondent their father would entitle them to child support.

Consequently, the court held that the respondent was estopped from denying paternity and declared him the children's legal father.

Wife's Stolen Diary May Be Suppressed

A wife whose diary was stolen by her husband succeeded in having its contents suppressed in her husband's direct action against her, but the husband retained the right to use its contents for impeachment purposes. Robinson v. Robinson, N.Y.L.J. 2/4/03 (Sup. Ct., New York Cty., IA Part 50L) (Silbermann, J.).

In a divorce action, the defendant wife claimed that her husband had stolen her diary and used the information in it to add a cause of action alleging that he had been fraudulently induced into signing an antenuptial agreement. The wife sought the fraud charge's dismissal or alternatively, the diary's suppression. Plaintiff husband claimed that the book was in plain view and that he 'borrowed' it in order to make a copy and to avoid spoliation of evidence. He admitted to amending his complaint after reading the entire diary.

The court prohibited the diary's introduction as evidence in the husband's direct case but permitted its use to impeach the wife's credibility. The court ruled that plaintiff had improperly obtained the diary despite having the opportunity to legitimately secure it as evidence pursuant to CPLR ' 3102[c]. It refused dismissal of the fraud charge, because neither plaintiff's conduct nor the seriousness of the prejudice sustained by the wife reached the levels required under Lipin v. Bender, 84 N.Y.2d 562.

Noncustodial Father Cannot Claim Children As Tax Deductions

A noncustodial father who moved for an order permitting him to claim his children as tax deductions was denied on the basis that absent a waiver by the custodial parent, that parent has the right to claim the child as a dependent. Goodman v. Goodman, N.Y.L.J. 2/7/03 (Sup. Ct., Queens Cty., MM Part 52) (Gavrin, J.).

The parties had orally agreed to divorce settlement terms regarding equitable distribution and child support. Defendant former husband, the non-custodial parent, moved for an order permitting him to claim his infant children as income tax deductions. Plaintiff former wife opposed, arguing that because the stipulation was silent on the issue of tax benefits, the Internal Revenue Code requires that the custodial parent be given the benefit of any available tax deduction.

The court denied defendant's motion. Looking to 26 U.S.C.A. ' 152 ' an Internal Revenue Code provision that defines an income tax deductible dependent ' the court reasoned that unless the right is waived, the custodial parent is entitled to any tax deduction benefit provided by claiming a child as a dependent. The court noted that defendant father had not provided evidence of a written declaration that the custodial parent would not claim the children as dependents for any taxable year beginning in the calendar year.

Non-paying Father Held in Contempt After Stating He Cannot Pay

The court refused to vacate a commitment order issued after it found a father in contempt for failing to pay child support, finding that the father had not provided documentation to prove that he was unable to pay. Isaacs v. Isaacs, N.Y.L.J. 7/14/03 (Sup. Ct., New York Cty.) (Drager, J.). A bankruptcy court order previously discharged defendant's dischargeable debts, but not his debts to plaintiff. Additionally, the parties had stipulated that defendant's child support arrears were not discharged.

The court denied vacatur of the commitment order and its contempt finding. It rejected defendant's argument, among others, that the bankruptcy court's discharge should satisfy the court that he was incapable of purging himself of contempt. The court, noting defendant's repeated failure to provide documentation concerning his personal finances or those of his company, which he had claimed to have closed, determined that defendant had failed to establish, pursuant to Domestic Relations Law
' 246, that he was financially unable to make the ordered payments. The bankruptcy proceeding also lent no support to defendant's claim of changed circumstances.

Wife Granted Motion for Leave to Serve Verified Claim

The court granted a wife's motion for leave to serve a verified claim for necessaries in addition to a cause of action for divorce, as the addition of claim for necessaries would neither delay nor prejudice the defendant husband. Lavery v. Moser, N.Y.L.J. 2/10/03 (Sup. Ct., Nassau Cty.) (Raab, J.).

Defendant wife sought leave to serve a verified claim for necessaries as well as a cause of action for divorce grounded on abandonment. The court granted defendant wife's motion, holding that plaintiff husband had not sufficiently established prejudice to deny defendant leave to interpose her claim. The court observed that there had been extensive pre-trial litigation regarding the parties' finances. It also determined that because none of the financial issues had been resolved, the addition of a defendant wife's claim for necessaries would neither delay nor prejudice plaintiff. The court found that defendant's claim for necessaries was intertwined with larger financial issues such as the parties' standard of living and their respective financial resources. Additionally, the court determined that when a claim for necessaries is made when the parties are living apart, the issue of fault for the separation is an element of that claim.

Non-Biological Father Estopped from Denying Paternity

The court found that under the exceptional circumstances presented in this case, the respondent father was stopped from denying paternity even though he was not the children's biological father. Matter of Gila K. v. Farag K., N.Y.L.J. 2/7/03 (Fam. Ct.) (Goldstein, Referee).

Petitioner, the mother of two children, petitioned the court on their behalf to declare the man who had held himself out to be their father as their legal father. Respondent had met the children's mother after they were born, but the children were at that time too young to remember a time when he was not a part of their lives.

The respondent, although knowing he was not the biological father, had for 10 years held himself out as such, giving the children his surname and telling them that he was their father. During this time, respondent got married to the petitioner and had a biological son with her. When respondent left the marital home in 2000, he told the children he loved them and would return, but he has since attempted primarily to keep in contact with his biological child and not with the other two children. After his departure, the mother petitioned for a declaration of paternity.

The court here stated that it had found no reported cases in New York 'utilizing the doctrine of equitable estoppel under exactly the fact pattern presented here ' where a woman comes to a marriage with young out-of-wedlock children who are sought to be declared the legal children of the mother's husband. However, the doctrine is flexible enough to incorporate a variety of scenarios affecting paternity when equity and the interests of the child or children so demands.'

The court noted as significant the facts that the children's names had been changed with respondent's permission, he had claimed them as dependents on his tax returns and on his immigration papers and he had told school officials that he was their father. In addition, because all parties are Orthodox Jews, declaring the children illegitimate would have held them out to ridicule within their community and might even have interfered with their future marriageability. Finally, declaring the respondent their father would entitle them to child support.

Consequently, the court held that the respondent was estopped from denying paternity and declared him the children's legal father.