Decisions of Interest

The Second Department referred to the decision of the court in Matter of Winokur v. Winokur, 31 AD3d 653, which held that “[s]tipulations and separation agreements that provide for an unallocated child support payment may only be reduced or terminated on conditions that are expressly provided for in the stipulation or agreement.” With this in mind, the Second Department stated: “Noticeably absent from the stipulation in this case is any express provision allowing the father to reduce his support payments as each child becomes emancipated.” Therefore, the court concluded that the emancipation of just one child had no effect on the support obligation, which continues in full until the both daughters are emancipated.

Hearing Required When Children's Best Interests in Dispute

Family Court, Westchester County, erred in ordering temporary supervised visitation rights to a father without first conducting a hearing, as the parties had differing views and the court did not, on its own and without further inquiry, have adequate information in its possession to determine whether such visitation was in the best interests of the children. In the Matter of Sullivan v. Moore, 2012 N.Y. App. Div. LEXIS 3979 (2d Dept. 5/23/12) (Balkin, J.P., Leventhal, Hall, Cohen and Balkin, J.J.).

Breakdown Is Continuous

Supreme Court, Ontario County, correctly denied a man's motion to dismiss his wife's divorce complaint because, while a limitations period applies to an ongoing breakdown in a marriage, it is measured from the last day of irretrievable breakdown. Tupper v. Tupper, 2012 N.Y. App. Div. LEXIS 4574 (4th Dept. 6/8/12) (Smith, J.P., Lindley, Sconiers and Martouche, J.J.).

The parties were married in 1973. In 1996, the wife moved out of the marital home and sued for divorce on the basis of cruel and inhuman treatment. Following a bench trial, her petition was denied with prejudice. In February 2011, after New York's no-fault divorce statute, Domestic Relations Law (DRL) ' 170 (7), took effect, the wife sought divorce once more. Here, the complaint stated only that the parties' relationship had irretrievably broken down, but it failed to mention any specifics. The husband sought dismissal, contending that the complaint failed to comply with Civil Practice Law & Rules (CPLR) 3016 (c), which provides that, “[i]n an action for separation or divorce, the nature and circumstances of a party's alleged misconduct, if any, and the time and place of each act complained of, if any, shall be specified in the complaint.” The court noted, however, that a divorce based on D.R.L. ' 170 (7) requires no showing of misconduct of any kind; therefore, CPLR 3016 (c) does not apply. Besides this, the husband's own affidavit in support of his motion to dismiss stated that the parties had not lived together since 1996 and had not spoken in five years. These admissions alone would have sufficed as proof of an irretrievable breakdown.

The court also was not persuaded by the husband's contention that the five-year statute of limitations barred the divorce proceedings because the breakdown in the marriage first occurred more than five years before the action was filed. Although it agreed with him that the five-year limitations period set forth in DRL ' 210 applied to the case, the court found the clock starts on the last day that the marriage is irretrievably broken, not the first. “Like a spouse serving a life sentence, an irretrievable breakdown in a married couple's relationship is a continuing state of affairs that, by definition, will not change,” stated the court. “After all, the breakdown is 'irretrievable.' It thus stands to reason that a cause of action under the no-fault statute may be commenced at any time after the marriage has been,” in accordance with the language of ' 170 (7), “broken down irretrievably for a period of at least six months.”

Careful Wording Needed

The Appellate Division, Second Department, has affirmed the Support Magistrate's and Family Court's denial of a father's petition for reduction of child support, as the wording of the parents' stipulation of settlement requires full child support payments until both the couple's children are emancipated. In the Matter of Katz v. Dotan , 2012 N.Y. App. Div. LEXIS 4081; 2012 NY Slip Op 4172 ((2d Dept. 5/30/12) (Rivera, J.P., Belen, Chambers and Lott, JJ.).

The father was required by the parties' stipulation of settlement, which was incorporated but not merged into a judgment of divorce, to pay child support of $300 per week “until the emancipation of [daughters] Brooke and Caroline.” When the elder child reached the age of 21 and had graduated from college, the father sought an order terminating his duty to support her, so that he would be required to pay only $150 per month. The Support Magistrate conducted a hearing and determined that the stipulation terminates the father's support obligation only upon the emancipation of both daughters. Until that time, he must pay the full $300 per week. Family Court affirmed, and this appeal followed.

The Second Department referred to the decision of the court in Matter of Winokur v. Winokur , 31 AD3d 653, which held that “[s]tipulations and separation agreements that provide for an unallocated child support payment may only be reduced or terminated on conditions that are expressly provided for in the stipulation or agreement.” With this in mind, the Second Department stated: “Noticeably absent from the stipulation in this case is any express provision allowing the father to reduce his support payments as each child becomes emancipated.” Therefore, the court concluded that the emancipation of just one child had no effect on the support obligation, which continues in full until the both daughters are emancipated.

Hearing Required When Children's Best Interests in Dispute

Family Court, Westchester County, erred in ordering temporary supervised visitation rights to a father without first conducting a hearing, as the parties had differing views and the court did not, on its own and without further inquiry, have adequate information in its possession to determine whether such visitation was in the best interests of the children. In the Matter of Sullivan v. Moore , 2012 N.Y. App. Div. LEXIS 3979 (2d Dept. 5/23/12) (Balkin, J.P., Leventhal, Hall, Cohen and Balkin, J.J.).

Breakdown Is Continuous

Supreme Court, Ontario County, correctly denied a man's motion to dismiss his wife's divorce complaint because, while a limitations period applies to an ongoing breakdown in a marriage, it is measured from the last day of irretrievable breakdown. Tupper v. Tupper , 2012 N.Y. App. Div. LEXIS 4574 (4th Dept. 6/8/12) (Smith, J.P., Lindley, Sconiers and Martouche, J.J.).

The parties were married in 1973. In 1996, the wife moved out of the marital home and sued for divorce on the basis of cruel and inhuman treatment. Following a bench trial, her petition was denied with prejudice. In February 2011, after New York's no-fault divorce statute, Domestic Relations Law (DRL) ' 170 (7), took effect, the wife sought divorce once more. Here, the complaint stated only that the parties' relationship had irretrievably broken down, but it failed to mention any specifics. The husband sought dismissal, contending that the complaint failed to comply with Civil Practice Law & Rules (CPLR) 3016 (c), which provides that, “[i]n an action for separation or divorce, the nature and circumstances of a party's alleged misconduct, if any, and the time and place of each act complained of, if any, shall be specified in the complaint.” The court noted, however, that a divorce based on D.R.L. ' 170 (7) requires no showing of misconduct of any kind; therefore, CPLR 3016 (c) does not apply. Besides this, the husband's own affidavit in support of his motion to dismiss stated that the parties had not lived together since 1996 and had not spoken in five years. These admissions alone would have sufficed as proof of an irretrievable breakdown.

The court also was not persuaded by the husband's contention that the five-year statute of limitations barred the divorce proceedings because the breakdown in the marriage first occurred more than five years before the action was filed. Although it agreed with him that the five-year limitations period set forth in DRL ' 210 applied to the case, the court found the clock starts on the last day that the marriage is irretrievably broken, not the first. “Like a spouse serving a life sentence, an irretrievable breakdown in a married couple's relationship is a continuing state of affairs that, by definition, will not change,” stated the court. “After all, the breakdown is 'irretrievable.' It thus stands to reason that a cause of action under the no-fault statute may be commenced at any time after the marriage has been,” in accordance with the language of ' 170 (7), “broken down irretrievably for a period of at least six months.”