Decisions of Interest

Without Economic Partnership, Distributive Share Award Unfounded

A trial court erroneously awarded a husband a distributive share of certain assets titled solely in the plaintiff wife's name because, except for the marital home, the parties kept their finances separate during the course of the marriage, they conducted themselves during the marriage in a manner inconsistent with the typical “economic partnership”; the husband played an extremely limited role in the marriage and failed to provide any significant resources to it. Galvin v. Francis, 2005 N.Y. App. Div. LEXIS 8087 (2d Dept. 7/25/04) (Prudenti, P.J., Goldstein, Crane and Mastro, JJ.).

UCCJEA, Not UCCJA, Controls

A mother who disputed the New York courts' jurisdiction over a child whose custody was decided by a New York court incorrectly relied on the provisions of the Uniform Child Custody Jurisdiciton Act (UCCJA) rather than the Uniform Child Custody Jurisdiciton and Enforcement Act (UCCJEA), which superceded it. Bjornson v. Bjornson, 2005 N.Y. App. Div. LEXIS 7864 (2d Dept. 7/18/05) (Miller, J.P., Cozier, Ritter and Fisher, JJ).

By judgment of divorce in 2002, the parties were awarded joint custody of their child, with physical custody to the mother and reasonable visitation to the father. Pursuant to a written agreement between the parties, the mother and child lived in Norway for the period beginning in the summer of 2002 through the summer of 2004, to permit the mother to further her education. The father had visitation during that period. By letter dated June 3, 2004, the father was advised by the mother's attorney in Norway that she wished to remain there permanently with the child and would not return to the United States until the matter was resolved. The father retained an attorney and the parties agreed that the child would be returned to New York for visitation with the father from Sept. 10, 2004, until Oct. 2, 2004. In Septem-ber 2004, while the child was in the custody of the father in New York, the father moved, among other things, to modify the custody provisions of the judgment to award him sole custody of the child. The mother cross-moved, inter alia, in effect, to dismiss the matter on the ground that the Supreme Court lacked jurisdiction under the Uniform Child Custody Jurisdiciton Act (UCCJA) (see Domes-tic Relations Law (DRL) former article 5-A) because New York was no longer the child's “home state.” The Supreme Court, determined that New York State had jurisdiction over the matter pursuant to the Uniform Child Custody Jurisdiciton and Enforcement Act (UCCJEA) (see Domestic Relations Law former article 5-A), and directed that the child remain in New York pending a determination of the father's motion. The mother appealed.

The Second Department found that, contrary to the mother's contention, the UCCJEA, not the UCCJA, is controlling. The UCCJEA, which superseded the UCCJA, is applicable to all actions commenced on or after its effective date of April 28, 2002, and to all motions or other requests for relief in a child custody proceeding made on or after the effective date, even if the child custody proceeding was commenced before that date (L 2001, ch 386, ' 2). A child custody proceeding is defined in the UCCJEA as, among other things, a proceeding where custody is at issue, including an action for a divorce (see DRL ' 75-a (4)). Here, the father's motion was made in the matrimonial action in September 2004, after the effective date of the UCCJEA. Thus the UCCJEA controlled.

In relevant part, the UCCJEA provides: 1) Except as otherwise provided for in section seventy-six-c of this title [provisions concerning temporary emergency jurisdiction], a court of this state which has issued a child custody determination consistent with section seventy-six or seventy-six-b of this title has exclusive, continuing jurisdiction over the determination until:

a.) a court of this state determines that neither the child, the child and a parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships; or

b.) a court of this state or a court of another state determines that the child or the child's parents, and any person acting as a parent do not presently reside in this state.” DRL ' 76-a (1).

Here, it was undisputed that the child custody determination made in the judgment of divorce was consistent with the UCCJEA. Further, the record did not support a conclusion that neither the mother nor the child had a significant connection to New York and that substantial evidence was no longer available in this state concerning the child's care, protection, training, and personal relationships. Thus, the New York Supreme Court has jurisdiction over the matter under the UCCJEA.

Appearance of Conflict Negates Need for Hearing

Defendant wife's cross motion to disqualify the law firm of Wolfson, Greller, Egitto & Klein, LLP, (WGEK) as the plaintiff husband's counsel in this divorce proceeding was granted without hearing by the Second Department because the firm had access to confidential financial information concerning defendant's family that could have a bearing on the divorce action. Galanos v. Galanos, 797 N.Y.S.2d 774 (2d Dept. 7/11/05) (Adams, J.P., Goldstein, Crane and Skelos, JJ.).

The law firm representing the plaintiff in this action had for a number of years represented the defendant's father. The representation gave WGEK access to confidential information concerning defendant's father's assets and business. In this action WGEK, on behalf of the plaintiff, was challenging the transfer of assets from the defendant to her father. This triggered a presumption that every WGEK attorney was in possession of defendant's father's confidences on matters that were substantially related to those in the divorce action. Thus, citing to Cardinale v. Golinello, 43 NY2d 288, the court here found that the very appearance of a conflict of interest in this case was sufficient to warrant disqualification of WGEK as a matter of law without an evidentiary hearing.

Without Economic Partnership, Distributive Share Award Unfounded

A trial court erroneously awarded a husband a distributive share of certain assets titled solely in the plaintiff wife's name because, except for the marital home, the parties kept their finances separate during the course of the marriage, they conducted themselves during the marriage in a manner inconsistent with the typical “economic partnership”; the husband played an extremely limited role in the marriage and failed to provide any significant resources to it. Galvin v. Francis , 2005 N.Y. App. Div. LEXIS 8087 (2d Dept. 7/25/04) (Prudenti, P.J., Goldstein, Crane and Mastro, JJ.).

UCCJEA, Not UCCJA, Controls

A mother who disputed the New York courts' jurisdiction over a child whose custody was decided by a New York court incorrectly relied on the provisions of the Uniform Child Custody Jurisdiciton Act (UCCJA) rather than the Uniform Child Custody Jurisdiciton and Enforcement Act (UCCJEA), which superceded it. Bjornson v. Bjornson , 2005 N.Y. App. Div. LEXIS 7864 (2d Dept. 7/18/05) (Miller, J.P., Cozier, Ritter and Fisher, JJ).

By judgment of divorce in 2002, the parties were awarded joint custody of their child, with physical custody to the mother and reasonable visitation to the father. Pursuant to a written agreement between the parties, the mother and child lived in Norway for the period beginning in the summer of 2002 through the summer of 2004, to permit the mother to further her education. The father had visitation during that period. By letter dated June 3, 2004, the father was advised by the mother's attorney in Norway that she wished to remain there permanently with the child and would not return to the United States until the matter was resolved. The father retained an attorney and the parties agreed that the child would be returned to New York for visitation with the father from Sept. 10, 2004, until Oct. 2, 2004. In Septem-ber 2004, while the child was in the custody of the father in New York, the father moved, among other things, to modify the custody provisions of the judgment to award him sole custody of the child. The mother cross-moved, inter alia, in effect, to dismiss the matter on the ground that the Supreme Court lacked jurisdiction under the Uniform Child Custody Jurisdiciton Act (UCCJA) (see Domes-tic Relations Law (DRL) former article 5-A) because New York was no longer the child's “home state.” The Supreme Court, determined that New York State had jurisdiction over the matter pursuant to the Uniform Child Custody Jurisdiciton and Enforcement Act (UCCJEA) (see Domestic Relations Law former article 5-A), and directed that the child remain in New York pending a determination of the father's motion. The mother appealed.

The Second Department found that, contrary to the mother's contention, the UCCJEA, not the UCCJA, is controlling. The UCCJEA, which superseded the UCCJA, is applicable to all actions commenced on or after its effective date of April 28, 2002, and to all motions or other requests for relief in a child custody proceeding made on or after the effective date, even if the child custody proceeding was commenced before that date (L 2001, ch 386, ' 2). A child custody proceeding is defined in the UCCJEA as, among other things, a proceeding where custody is at issue, including an action for a divorce (see DRL ' 75-a (4)). Here, the father's motion was made in the matrimonial action in September 2004, after the effective date of the UCCJEA. Thus the UCCJEA controlled.

In relevant part, the UCCJEA provides: 1) Except as otherwise provided for in section seventy-six-c of this title [provisions concerning temporary emergency jurisdiction], a court of this state which has issued a child custody determination consistent with section seventy-six or seventy-six-b of this title has exclusive, continuing jurisdiction over the determination until:

a.) a court of this state determines that neither the child, the child and a parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships; or

b.) a court of this state or a court of another state determines that the child or the child's parents, and any person acting as a parent do not presently reside in this state.” DRL ' 76-a (1).

Here, it was undisputed that the child custody determination made in the judgment of divorce was consistent with the UCCJEA. Further, the record did not support a conclusion that neither the mother nor the child had a significant connection to New York and that substantial evidence was no longer available in this state concerning the child's care, protection, training, and personal relationships. Thus, the New York Supreme Court has jurisdiction over the matter under the UCCJEA.

Appearance of Conflict Negates Need for Hearing

Defendant wife's cross motion to disqualify the law firm of Wolfson, Greller, Egitto & Klein, LLP, (WGEK) as the plaintiff husband's counsel in this divorce proceeding was granted without hearing by the Second Department because the firm had access to confidential financial information concerning defendant's family that could have a bearing on the divorce action. Galanos v. Galanos, 797 N.Y.S.2d 774 (2d Dept. 7/11/05) (Adams, J.P., Goldstein, Crane and Skelos, JJ.).

The law firm representing the plaintiff in this action had for a number of years represented the defendant's father. The representation gave WGEK access to confidential information concerning defendant's father's assets and business. In this action WGEK, on behalf of the plaintiff, was challenging the transfer of assets from the defendant to her father. This triggered a presumption that every WGEK attorney was in possession of defendant's father's confidences on matters that were substantially related to those in the divorce action. Thus, citing to Cardinale v. Golinello, 43 NY2d 288, the court here found that the very appearance of a conflict of interest in this case was sufficient to warrant disqualification of WGEK as a matter of law without an evidentiary hearing.