Decisions of Interest

The Appellate Division, Third Department, agreed that, where parties have executed a valid stipulation or agreement, a domestic relations order may convey only those rights and awards upon which the parties agreed. See McCoy v. Feinman, 99 NY2d 295 (2002); Smith v. Smith, 59 AD3d 905 (2009). However, it found that such agreement was made in the stipulation in the provision stating that the wife “shall opt to have said pension throughout the life of [husband] and [wife].” Stated the Third Department, “[A]s [husband's] interest in [wife's] pension is measured 'throughout' his own life, and not just [wife's] life, the plain meaning of this term in the stipulation is that [wife] must choose a pension option that ensures lifetime benefits to [husband].”

Wife Is 'Unavailable to Testify,' So Heresay
Exception Applies

Acting Supreme Court Justice Joseph Zayas has held that prosecutors trying a man accused of threatening his wife and attempting to murder her may present the wife's out-of-court accounts of the assaults because a “mountain” of direct and circumstantial evidence indicated that she changed her story due to the defendant's continued threats against her. People v. Turnquist, 602-2011, NYLJ 1202540295399, at *1 (Sup., QU, Decided Jan. 25, 2012).

The defendant is charged with attempted murder in the first and second degree, assault in the first and second degree, and first-degree reckless endangerment. His wife originally told the prosecutor, police and treating medical personnel that the defendant came to her workplace and yelled at her in front of her colleagues, accusing her of having an affair. She says she got into the car with him, but during that ride he broke her finger, punched her repeatedly in the face and threw her from the moving vehicle when it was travelling at about 40-45 miles per hour. The witness later recanted her story after the accused allegedly repeatedly coerced her through family and friends. Therefore, the prosecution asked the court to declare the witness unavailable and permit the submission of her out-of-court statements to support the case. The defendant countered that the witness was indeed available and prepared to testify at his trial ' on his behalf ' because she was ready to truthfully recant her original false statements. As such, she was neither “silent” nor “absent,” and admission of her out-of-court statements should not be permitted. In granting the prosecution's request, Judge Zayas stated, “The evidence demonstrates quite convincingly that defendant's misconduct ' his two surprise visits to [the witness's] home, his barrage of telephone calls to [the witness], and his use of various third parties to contact [the witness], all in violation of the extant orders of protection ' caused the once completely cooperative complainant to become unavailable.”

Father's Miscalculations Entitle Mother to Seek Reimbursement of College Costs

Because a father's method for calculating his pro-rata share of college costs was contrary to the terms of the couple's stipulation of settlement, the Second Department reversed the trial court's erroneous determination that a woman could not seek reimbursement for overpayment because her payments were “voluntarily” made. Ayers v. Ayers, 2012 N.Y. App. Div. LEXIS 970; 2012 NY Slip Op 920 (2d Dept. 2/7/12) (Skelos, J.P., Balkin, Roman and Sgroi, JJ.).

The parties divorced in 1995. The divorce judgment incorporated but did not merge the terms of their 1994 stipulation of settlement, a provision of which required each of them to pay “on a pro rata basis in accordance with their income and assets” the costs of their children's college tuition, room and board. One of the couple's children entered college in 2004, the other in 2008. The father undertook the job of calculating how much each parent should pay for the children's educational expenses. In so doing, he determined the parties' incomes and assets by deducting the amount of child support payments he made from his income and adding that amount to his ex-wife's income. The mother paid her pro-rata share, based on these calculations, from 2004 until 2009. In 2010, however, she decided her ex-husband's method of calculating income for each of them was incorrect. Consequently, she moved the court for a money judgment for amounts she allegedly overpaid and for an order to compel the father to produce his W-2 statements and tax returns for the years 2003 through 2009. Supreme Court denied these requests, finding that the ex-wife's college expense payments were “voluntary” and that she was therefore barred from seeking reimbursement for them.

The Second Department reversed, finding that the parties' stipulation of settlement, which was a contract subject to normal contract-law interpretations, contained no evidence that they ever intended for the father's child support payments to be deducted from his income or added to the mother's income. The appellate court also found no basis for the Supreme Court's determination that the mother's college expense payments should be deemed “voluntarily made.” The court noted also that “although a noncustodial parent who is paying child support and is contributing to the expenses of a child's college education is entitled to a credit for the amounts contributed to college expenses during periods when the child lives away from home, such a credit covers only those expenses associated with the child's room and board, rather than college tuition.” The father's formula for calculating each parent's pro-rata share did not account for the distinction between tuition expenses and room and board expenses; instead, he incorrectly credited all of the child support payments toward the payment of all of the college expenses.

Finally, the Second Department found that the father's tax data for the years 2003 to 2009 must be produced, as only in this way could a determination be made as to how much each parent should have contributed to their children's college education funds. “Accordingly,” stated the court, “the matter must be remitted to the Supreme Court for further proceedings, including a hearing if warranted, and a new determination of that branch of the plaintiff's motion which was for leave to enter a money judgment for alleged overpayment of her pro rata share of college expenses.”

Support Magistrate Not Authorized to Determine Child Emancipated

Finding that a Support Magistrate overstepped jurisdictional bounds by declaring a teen emancipated ' thus freeing his father from paying child support ' a Monroe County Family Court judge vacated the determination of emancipation. Matter of Stephen L. v. Karole A., 2012 N.Y. Misc. LEXIS 558, F-01599-00/08G (Fam. Ct., Monroe Cty. 2/9/12) (Gallaher, J.).

“It is absolutely clear as a matter of statutory law that the support magistrate did not have the authority to hear and determine whether or not the boy could be held to have constructively abandoned the father, or whether the mother could have so alienated the child's affections as to cause an end to visitation,” wrote Judge Patricia E. Gallaher. “Support magistrates determine child support. Family Court judges determine issues of custody and visitation. Because of the complete lack of jurisdiction, the magistrate's determination must be vacated in its entirety.”

In addition, the court noted error in the Magistrate's determination that the boy was emancipated and able to support himself as of the day he turned 16 years of age. This she found contrary to New York Education Law '3205(1), which required the boy to remain enrolled full-time in school until the end of school year in which he turned 17.

And, finally, Judge Gallaher determined that the father was not entitled to be relieved from his child support obligations because he was primarily responsible for the breakdown in the father/son relationship.

Stipulation Dictates Survivor Benefits

Because the wording of a divorced couple's stipulation of settlement referred to the lifetimes of both parties when discussing the wife's pension, she was properly ordered to choose a pension option that ensures lifetime benefits for her ex-husband. Dagliolo v. Dagliolo , 2012 N.Y. App. Div. LEXIS 452 (3d Dept. 1/26/12) (Mercure, Acting P.J., Peters, Rose and Lahtinen, J.J.).

The parties were divorced in February 2002. The judgment of divorce incorporated but did not merge a stipulation of settlement that directed distribution of the wife's pension. It said that the wife “shall opt to have said pension throughout the life of [husband] and [wife].” In 2010, the husband moved for entry of a proposed domestic relations order granting him survivor benefits in his ex-wife's pension. Supreme Court granted that motion, prompting the wife to appeal. She argued that the domestic relations order could not grant her ex-husband survivor benefits because the underlying stipulation did not provide him with such benefits.

The Appellate Division, Third Department, agreed that, where parties have executed a valid stipulation or agreement, a domestic relations order may convey only those rights and awards upon which the parties agreed. See McCoy v. Feinman , 99 NY2d 295 (2002); Smith v. Smith , 59 AD3d 905 (2009). However, it found that such agreement was made in the stipulation in the provision stating that the wife “shall opt to have said pension throughout the life of [husband] and [wife].” Stated the Third Department, “[A]s [husband's] interest in [wife's] pension is measured 'throughout' his own life, and not just [wife's] life, the plain meaning of this term in the stipulation is that [wife] must choose a pension option that ensures lifetime benefits to [husband].”

Wife Is 'Unavailable to Testify,' So Heresay
Exception Applies

Acting Supreme Court Justice Joseph Zayas has held that prosecutors trying a man accused of threatening his wife and attempting to murder her may present the wife's out-of-court accounts of the assaults because a “mountain” of direct and circumstantial evidence indicated that she changed her story due to the defendant's continued threats against her. People v. Turnquist, 602-2011, NYLJ 1202540295399, at *1 (Sup., QU, Decided Jan. 25, 2012).

The defendant is charged with attempted murder in the first and second degree, assault in the first and second degree, and first-degree reckless endangerment. His wife originally told the prosecutor, police and treating medical personnel that the defendant came to her workplace and yelled at her in front of her colleagues, accusing her of having an affair. She says she got into the car with him, but during that ride he broke her finger, punched her repeatedly in the face and threw her from the moving vehicle when it was travelling at about 40-45 miles per hour. The witness later recanted her story after the accused allegedly repeatedly coerced her through family and friends. Therefore, the prosecution asked the court to declare the witness unavailable and permit the submission of her out-of-court statements to support the case. The defendant countered that the witness was indeed available and prepared to testify at his trial ' on his behalf ' because she was ready to truthfully recant her original false statements. As such, she was neither “silent” nor “absent,” and admission of her out-of-court statements should not be permitted. In granting the prosecution's request, Judge Zayas stated, “The evidence demonstrates quite convincingly that defendant's misconduct ' his two surprise visits to [the witness's] home, his barrage of telephone calls to [the witness], and his use of various third parties to contact [the witness], all in violation of the extant orders of protection ' caused the once completely cooperative complainant to become unavailable.”

Father's Miscalculations Entitle Mother to Seek Reimbursement of College Costs

Because a father's method for calculating his pro-rata share of college costs was contrary to the terms of the couple's stipulation of settlement, the Second Department reversed the trial court's erroneous determination that a woman could not seek reimbursement for overpayment because her payments were “voluntarily” made. Ayers v. Ayers , 2012 N.Y. App. Div. LEXIS 970; 2012 NY Slip Op 920 (2d Dept. 2/7/12) (Skelos, J.P., Balkin, Roman and Sgroi, JJ.).

The parties divorced in 1995. The divorce judgment incorporated but did not merge the terms of their 1994 stipulation of settlement, a provision of which required each of them to pay “on a pro rata basis in accordance with their income and assets” the costs of their children's college tuition, room and board. One of the couple's children entered college in 2004, the other in 2008. The father undertook the job of calculating how much each parent should pay for the children's educational expenses. In so doing, he determined the parties' incomes and assets by deducting the amount of child support payments he made from his income and adding that amount to his ex-wife's income. The mother paid her pro-rata share, based on these calculations, from 2004 until 2009. In 2010, however, she decided her ex-husband's method of calculating income for each of them was incorrect. Consequently, she moved the court for a money judgment for amounts she allegedly overpaid and for an order to compel the father to produce his W-2 statements and tax returns for the years 2003 through 2009. Supreme Court denied these requests, finding that the ex-wife's college expense payments were “voluntary” and that she was therefore barred from seeking reimbursement for them.

The Second Department reversed, finding that the parties' stipulation of settlement, which was a contract subject to normal contract-law interpretations, contained no evidence that they ever intended for the father's child support payments to be deducted from his income or added to the mother's income. The appellate court also found no basis for the Supreme Court's determination that the mother's college expense payments should be deemed “voluntarily made.” The court noted also that “although a noncustodial parent who is paying child support and is contributing to the expenses of a child's college education is entitled to a credit for the amounts contributed to college expenses during periods when the child lives away from home, such a credit covers only those expenses associated with the child's room and board, rather than college tuition.” The father's formula for calculating each parent's pro-rata share did not account for the distinction between tuition expenses and room and board expenses; instead, he incorrectly credited all of the child support payments toward the payment of all of the college expenses.

Finally, the Second Department found that the father's tax data for the years 2003 to 2009 must be produced, as only in this way could a determination be made as to how much each parent should have contributed to their children's college education funds. “Accordingly,” stated the court, “the matter must be remitted to the Supreme Court for further proceedings, including a hearing if warranted, and a new determination of that branch of the plaintiff's motion which was for leave to enter a money judgment for alleged overpayment of her pro rata share of college expenses.”

Support Magistrate Not Authorized to Determine Child Emancipated

Finding that a Support Magistrate overstepped jurisdictional bounds by declaring a teen emancipated ' thus freeing his father from paying child support ' a Monroe County Family Court judge vacated the determination of emancipation. Matter of Stephen L. v. Karole A., 2012 N.Y. Misc. LEXIS 558, F-01599-00/08G (Fam. Ct., Monroe Cty. 2/9/12) (Gallaher, J.).

“It is absolutely clear as a matter of statutory law that the support magistrate did not have the authority to hear and determine whether or not the boy could be held to have constructively abandoned the father, or whether the mother could have so alienated the child's affections as to cause an end to visitation,” wrote Judge Patricia E. Gallaher. “Support magistrates determine child support. Family Court judges determine issues of custody and visitation. Because of the complete lack of jurisdiction, the magistrate's determination must be vacated in its entirety.”

In addition, the court noted error in the Magistrate's determination that the boy was emancipated and able to support himself as of the day he turned 16 years of age. This she found contrary to New York Education Law '3205(1), which required the boy to remain enrolled full-time in school until the end of school year in which he turned 17.

And, finally, Judge Gallaher determined that the father was not entitled to be relieved from his child support obligations because he was primarily responsible for the breakdown in the father/son relationship.