Decisions of Interest

Pendente Lite

A husband was ordered to pay his wife a 50% share of the funds distributed by a deferred compensation account, retroactive to the date of commencement of their divorce proceeding, because these were marital funds that should not have been used by the husband to pay child support and other obligations that were his alone. Heymann v. Heymann, 2013 N.Y. App. Div. LEXIS 295 (2d Dept. 1/23/13) (Angiolillo, J.P., Dickerson, Miller, Hinds-Radix, JJ.).

The husband admitted in trial testimony that he had used funds from an account considered a marital asset to pay expenses the parties had agreed to split evenly, and to pay interim child support. The appellate court noted that although marital assets may legitimately be used to pay for joint familial obligations, such as educational expenses, while a divorce action remains pending, they cannot be used to pay for items that are the sole obligation of one of the parties. Thus, it ordered the husband to return the improperly used funds to the wife.

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Child Support: No Reprieve for Years of Failure to Work

The Second Department has reversed an order granting downward modification of a father's child support obligation after concluding that the man's decreased income capacity was precipitated by his criminal activities, which were intentional misconduct. Anderson v. Anderson, 2013 N.Y. App. Div. LEXIS 294 (2d Dept. 1/23/13) (Skelos, J.P., Hall, Roman and Cohen, JJ.).

The father argued that he lost his ability to earn money when federal investigators forced him to shut down his business in 2007. However, he did not aver that they had prevented him from engaging in other money-making activities between that time and the time of his incarceration in 2011, and he offered no evidence of any attempts to earn money during that period. Thus, the appeals court concluded that the father had failed to show a substantial and unanticipated change in circumstances warranting a reduction of his child support obligation.

Neither Spouse Is the Non-Monied Spouse, So No Interim Attorney Fees Awarded

The Appellate Division, Second Department, has affirmed the denial of award of interim attorney fees to a divorcing woman after concluding that Supreme Court, Kings County, did not improvidently exercise its discretion in denying the award because the movant's economic position is roughly equivalent to her husband's. Kaminash v. Levi , 2013 N.Y. App. Div. LEXIS 302 (2d Dept. 1/23/13) (Skelos, J.P., Hall, Roman and Cohen, JJ.).

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Marital Assets Inappropriately Used to Satisfy Husband's
Obligations

Pendente Lite

A husband was ordered to pay his wife a 50% share of the funds distributed by a deferred compensation account, retroactive to the date of commencement of their divorce proceeding, because these were marital funds that should not have been used by the husband to pay child support and other obligations that were his alone. Heymann v. Heymann , 2013 N.Y. App. Div. LEXIS 295 (2d Dept. 1/23/13) (Angiolillo, J.P., Dickerson, Miller, Hinds-Radix, JJ.).

The husband admitted in trial testimony that he had used funds from an account considered a marital asset to pay expenses the parties had agreed to split evenly, and to pay interim child support. The appellate court noted that although marital assets may legitimately be used to pay for joint familial obligations, such as educational expenses, while a divorce action remains pending, they cannot be used to pay for items that are the sole obligation of one of the parties. Thus, it ordered the husband to return the improperly used funds to the wife.

'

Child Support: No Reprieve for Years of Failure to Work

The Second Department has reversed an order granting downward modification of a father's child support obligation after concluding that the man's decreased income capacity was precipitated by his criminal activities, which were intentional misconduct. Anderson v. Anderson , 2013 N.Y. App. Div. LEXIS 294 (2d Dept. 1/23/13) (Skelos, J.P., Hall, Roman and Cohen, JJ.).

The father argued that he lost his ability to earn money when federal investigators forced him to shut down his business in 2007. However, he did not aver that they had prevented him from engaging in other money-making activities between that time and the time of his incarceration in 2011, and he offered no evidence of any attempts to earn money during that period. Thus, the appeals court concluded that the father had failed to show a substantial and unanticipated change in circumstances warranting a reduction of his child support obligation.