Decisions of Interest

No Suspension of Child Support Without Proof of Alienation

A petitioner father was not entitled to suspension or termination of his child support obligation because he wasn't able to establish that his son's alienation from him was the result of his ex-wife's actions. Matter of Philip D. v. Marietta E., N.Y.L.J. 6/4/04, Vol. 107; Pg. 21 (Fam. Ct., Kings Cty) (Morgenstern, J.).

The parties were divorced in 1998 after several years of separation. The petitioner father was granted weekly visits during the daytime. These visits were increased by mutual consent over time. However, in 1999, the father accused the mother of inappropriate sexual behavior toward the child. Children's Services investigated and found no basis for the allegation. Thereafter, the visitation deteriorated to the point where the subject child feared his father and resisted having visitation with him.

The child's anxiety was exacerbated by an incident that occurred at a Nathan's restaurant. The child, at an in-camera interview, told the court that when he and his mother coincidentally met the petitioner at the restaurant, petitioner grabbed the child by the arm and pulled him away from his mother. The alleged incident led to the filing of criminal charges, but they were ultimately dismissed. As a result of this incident, the child's anxiety heightened drastically and he reported to the treating therapist and to the forensic expert that he feared that petitioner would kidnap him. The child began to display physical symptoms of anxiety such as facial tics and hand tremors. Despite the child's clear aversion to visitation with petitioner father, the respondent mother continued to comply with all court ordered visitation and with the court's direction to place the child in counseling. Unfortunately, the child, even after intensive therapy and attempts at supervised visitation, continued to reject the idea of having any relationship with the petitioner.

The petitioner sought suspension or termination of child support, maintaining that the respondent instilled fear of petitioner in the child. The court found, however, that petitioner failed to show that the child's mother willfully and deliberately alienated the child from him, and that the petitioner, while quick to blame the mother, the court system and the various therapists hired to help his son, had accepted no responsibility for his own role in alienating his child. The mother had, in fact, taken the child to all court-ordered visits with the petitioner and had cooperated in his therapy to help him overcome his fear of his father.

The court also rejected the petitioner's contention that the child had relinquished his right to child support by abandoning his relationship to his father, finding that a young child cannot be said to relinquish this right by such actions. Therefore, the court declined to suspend or terminate petitioner's child support obligation.

Oral Agreement on Matrimonial Issues Not Enforceable

A plaintiff wife was unable to enforce an oral agreement between herself and her ex-husband in which he agreed to pay her half his retirement income because nuptial agreements must be in writing, signed and provable in order to be enforceable. Summerlin v. Summerlin, N.Y.L.J. 6/11/04, DOI; Vol. 112; Pg. 24 (Sup. Ct., Kings Cty.) (Sunshine, J.).

Plaintiff wife and defendant husband were married in 1970 and separated in January 1989. At that time, the couple's two sons were 16- and 12-years-old, and continued to reside with the plaintiff in the marital home. At or about the time they separated, plaintiff and defendant reached an oral agreement that defendant, who was retired from service in the police force, would pay plaintiff 50% of his retirement income: $900 per month. Defendant alleges that in full acknowledgment of his obligation to pay child support for his two sons and without consulting an attorney, he agreed with plaintiff to give his wife 50% of his retirement income, or $900 per month, for that purpose. Plaintiff claimed that defendant had agreed to give her this amount indefinitely in exchange for her relinquishing her rights to any other equitable distribution of the marital estate. Shortly after defendant left the marital residence, he accepted $20,000 from plaintiff, without seeking legal counsel, in return for relinquishing his ownership rights to the property. Title was transferred and currently remains in the plaintiff's name.

In 1995, plaintiff filed for divorce, retaining counsel to represent her. Defendant chose not to retain separate counsel and, after meeting with the wife's counsel, agreed to an uncontested divorce. The divorce was finalized in November 1995. Custody of the parties' younger son was with the plaintiff, but the settlement papers were silent on the issues of child support and equitable distribution. Nevertheless, the defendant continued to pay the plaintiff $900 per month, although at the time of the parties' divorce, their sons were 22- and 18-years-old. The payments continued every month until May 2003, when the defendant informed the plaintiff that he would no longer make them.

Plaintiff then sought an order directing that defendant resume making payments to her. Defendant opposed, contending that he only belatedly learned that his obligations to provide child support had actually ceased in 1998 when his younger son reached the age of majority. The court looked to D.R.L. ' 236 (B)(3), which provides that a nuptial agreement made before or during the marriage must in writing, subscribed by the parties and acknowledged or proven in the manner required to entitle a deed to be recorded. Strict compliance with the requisite formalities explicitly specified in the statute is mandated. See Matisoff v. Dobi, 90 NY2d 127. Thus, although plaintiff correctly argued that the defendant's pension earned during the marriage and prior to the commencement of the matrimonial action is marital property subject to equitable distribution, this fact had no effect toward making the oral agreement enforceable. Moreover, even assuming arguendo that the explicit holding in Matisoff was not applicable to the facts in the case at bar, the Statute of Frauds (GOL ' 5-701) would have rendered the alleged agreement unenforceable.

Because the plaintiff failed to demonstrate the existence of an enforceable nuptial agreement and also failed to demonstrate that she had been deprived of a full and fair opportunity to litigate the issue of support in the uncontested divorce action – which she commenced and in which she alone was represented by counsel – the court found that plaintiff was barred by the doctrine of res judicata from now asserting a claim that she is entitled to relief under New York's equitable distribution laws.

No Suspension of Child Support Without Proof of Alienation

A petitioner father was not entitled to suspension or termination of his child support obligation because he wasn't able to establish that his son's alienation from him was the result of his ex-wife's actions. Matter of Philip D. v. Marietta E., N.Y.L.J. 6/4/04, Vol. 107; Pg. 21 (Fam. Ct., Kings Cty) (Morgenstern, J.).

The parties were divorced in 1998 after several years of separation. The petitioner father was granted weekly visits during the daytime. These visits were increased by mutual consent over time. However, in 1999, the father accused the mother of inappropriate sexual behavior toward the child. Children's Services investigated and found no basis for the allegation. Thereafter, the visitation deteriorated to the point where the subject child feared his father and resisted having visitation with him.

The child's anxiety was exacerbated by an incident that occurred at a Nathan's restaurant. The child, at an in-camera interview, told the court that when he and his mother coincidentally met the petitioner at the restaurant, petitioner grabbed the child by the arm and pulled him away from his mother. The alleged incident led to the filing of criminal charges, but they were ultimately dismissed. As a result of this incident, the child's anxiety heightened drastically and he reported to the treating therapist and to the forensic expert that he feared that petitioner would kidnap him. The child began to display physical symptoms of anxiety such as facial tics and hand tremors. Despite the child's clear aversion to visitation with petitioner father, the respondent mother continued to comply with all court ordered visitation and with the court's direction to place the child in counseling. Unfortunately, the child, even after intensive therapy and attempts at supervised visitation, continued to reject the idea of having any relationship with the petitioner.

The petitioner sought suspension or termination of child support, maintaining that the respondent instilled fear of petitioner in the child. The court found, however, that petitioner failed to show that the child's mother willfully and deliberately alienated the child from him, and that the petitioner, while quick to blame the mother, the court system and the various therapists hired to help his son, had accepted no responsibility for his own role in alienating his child. The mother had, in fact, taken the child to all court-ordered visits with the petitioner and had cooperated in his therapy to help him overcome his fear of his father.

The court also rejected the petitioner's contention that the child had relinquished his right to child support by abandoning his relationship to his father, finding that a young child cannot be said to relinquish this right by such actions. Therefore, the court declined to suspend or terminate petitioner's child support obligation.

Oral Agreement on Matrimonial Issues Not Enforceable

A plaintiff wife was unable to enforce an oral agreement between herself and her ex-husband in which he agreed to pay her half his retirement income because nuptial agreements must be in writing, signed and provable in order to be enforceable. Summerlin v. Summerlin, N.Y.L.J. 6/11/04, DOI; Vol. 112; Pg. 24 (Sup. Ct., Kings Cty.) (Sunshine, J.).

Plaintiff wife and defendant husband were married in 1970 and separated in January 1989. At that time, the couple's two sons were 16- and 12-years-old, and continued to reside with the plaintiff in the marital home. At or about the time they separated, plaintiff and defendant reached an oral agreement that defendant, who was retired from service in the police force, would pay plaintiff 50% of his retirement income: $900 per month. Defendant alleges that in full acknowledgment of his obligation to pay child support for his two sons and without consulting an attorney, he agreed with plaintiff to give his wife 50% of his retirement income, or $900 per month, for that purpose. Plaintiff claimed that defendant had agreed to give her this amount indefinitely in exchange for her relinquishing her rights to any other equitable distribution of the marital estate. Shortly after defendant left the marital residence, he accepted $20,000 from plaintiff, without seeking legal counsel, in return for relinquishing his ownership rights to the property. Title was transferred and currently remains in the plaintiff's name.

In 1995, plaintiff filed for divorce, retaining counsel to represent her. Defendant chose not to retain separate counsel and, after meeting with the wife's counsel, agreed to an uncontested divorce. The divorce was finalized in November 1995. Custody of the parties' younger son was with the plaintiff, but the settlement papers were silent on the issues of child support and equitable distribution. Nevertheless, the defendant continued to pay the plaintiff $900 per month, although at the time of the parties' divorce, their sons were 22- and 18-years-old. The payments continued every month until May 2003, when the defendant informed the plaintiff that he would no longer make them.

Plaintiff then sought an order directing that defendant resume making payments to her. Defendant opposed, contending that he only belatedly learned that his obligations to provide child support had actually ceased in 1998 when his younger son reached the age of majority. The court looked to D.R.L. ' 236 (B)(3), which provides that a nuptial agreement made before or during the marriage must in writing, subscribed by the parties and acknowledged or proven in the manner required to entitle a deed to be recorded. Strict compliance with the requisite formalities explicitly specified in the statute is mandated. See Matisoff v. Dobi , 90 NY2d 127. Thus, although plaintiff correctly argued that the defendant's pension earned during the marriage and prior to the commencement of the matrimonial action is marital property subject to equitable distribution, this fact had no effect toward making the oral agreement enforceable. Moreover, even assuming arguendo that the explicit holding in Matisoff was not applicable to the facts in the case at bar, the Statute of Frauds (GOL ' 5-701) would have rendered the alleged agreement unenforceable.

Because the plaintiff failed to demonstrate the existence of an enforceable nuptial agreement and also failed to demonstrate that she had been deprived of a full and fair opportunity to litigate the issue of support in the uncontested divorce action – which she commenced and in which she alone was represented by counsel – the court found that plaintiff was barred by the doctrine of res judicata from now asserting a claim that she is entitled to relief under New York's equitable distribution laws.