Decisions of Interest

On the birth certificate, the plaintiff was listed as the second mother, and the child's name was the hyphenated last names of the two mothers. The parties separated in 2012, but the plaintiff continued to see the child a few times per week, including for overnight visits.

In January 2013, the plaintiff filed for divorce in New York. She sought custody of the child, or at least visitation. Supreme Court, without conducting a hearing, concluded that the plaintiff, not being biologically related to the child nor its adoptive parent, did not have standing to seek custody or visitation. Therefore, sole custody was awarded to the defendant biological mother.

On appeal, the Second Department found that even though New York's Marriage Equality Act had not been enacted at the time the child was born, the couple's lawful Connecticut marriage should have been recognized by the Supreme Court. If it had done so, the plaintiff would also have been recognized as the child's parent under New York law. As a parent, the plaintiff did indeed have standing to seek custody and/or visitation, so the matter was remanded for further proceedings.

Engagement Is 'Intimate Association' Protected by First Amendment

The U.S. Court of Appeals for the Second Circuit has become the first to interpret the U.S. Supreme Court decision of Roberts v. United States Jaycees, 468 U.S. 609 (1984), to find that there is an “intimate association” right in betrothal. Matusick v. Erie County Water Authority, 739 F.3d 51 (2d Cir. 1/6/14).

The Matusick case involved a white man who became engaged to an African-American woman in 2004. He had worked as a dispatcher for the Erie County Water Authority (ECWA) since 1992, and claimed that he was harassed and eventually fired in 2006 as a result of his engagement. The couple were not married until 2009.

The man brought suit against the ECWA, claiming violation of his constitutional right of intimate association. A jury found for the plaintiff against the Erie County Water Authority and awarded him punitive damages. The defendant appealed.

The Second Circuit noted that the U.S. Supreme Court, in Roberts v. United States Jaycees, declared that a right of intimate association exists as regards affiliations “that attend the creation and sustenance of a family ' marriage, childbirth, the raising and education of children and the cohabitation with one's relatives.” In confirming the extension of this constitutional protection to engaged persons, Judge Robert Sack wrote for the Second Circuit majority: “The Roberts Court's reference to traditional familial relationships, most notably marriage, has led some courts to conclude that the right does not extend to romantic relationships beyond marriage. We think this is an unduly narrow reading of Roberts. The Court did not suggest that constitutional protections extended only to the relationships it enumerated.” The Second Circuit determined that it was appropriate to extend to similar relationships the protections afforded to marriage, including, as in this instance, the relationship of engagements, because “at least to the extent that a relationship of betrothal constitutes an expression of one's choice of marital partner, it shares the qualities ascribed by the Roberts Court to marriage and other protected forms of intimate association.” Therefore, the court affirmed the award of punitive damages against the Erie County Water Authority.

SEC Lien Supercedes Conveyance to Ex-Wife

The U.S. Securities and Exchange Commission (SEC) is entitled to a lien on property once owned by a divorced husband as a tenant by the entirety even though he conveyed it to his ex-wife post-divorce, because the SEC filed the judgment entitling it to the property prior to the divorce and conveyance. Securities and Exchange Commission v. Vuono, 2013 U.S. Dist. LEXIS 182121 (E.D. N.Y. 12/26/14).

In 1992, the SEC, obtained a judgment against the husband. Then, in 1995, the wife obtained title to real property (the Property) in her name alone. On Aug. 8, 2006, she transferred the Property to herself and the husband as tenants by the entirety.

The wife filed for divorce in 2010, and that divorce was finalized on March 22, 2013. Through a deed dated June 24, 2013 and recorded on July 30, 2013, the now ex-husband tranferred his interest in the Property to his ex-wife. Meanwhile, in 2012, the SEC registered the 1992 judgment with the Suffolk County Clerk, and on May 15, 2013, it registered the same in the Eastern District of New York.

In this action, the SEC asked for, and was granted, a declaratory judgment that the Property could be reached to satisfy the 1992 judgment. It did not matter that the lien attached after the wife filed for divorce; the husband continued to hold an interest in the property as a tenant by the entirety until the final divorce was granted. So the SEC, as of the filing of the transcript of the 1992 judgment, acquired any interest the husband held in the Property at that time. Ultimately, the court determined that the SEC now has a one-half interest in the Property ' that portion that could be said to be the husband's at the time the transcript was filed.

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Unusual Award: Attorney Fees to Non-Prevailing Party

A woman who has not been successful in over a decade's time in getting the court to order her husband to pay for her medical insurance coverage post-divorce has nevertheless been awarded attorney fees, because the court concluded it would be unfair not to so order. Lomaglio v. Lomaglio, 97/653, 2013 NY Slip Op 23438 (Dollinger, J.).

The parties, divorced in 1998, have been in litigation in the appellate courts for years, with the first appellate decision concerning the wife's medical insurance being issued in 2000 (Lomaglio v. Lomaglio, 273 AD2d 823 (4th Dept. 2000). The last such decision came out in 2012, but Acting Supreme Court Justice Richard Dollinger, who is handling the case at the trial level, remains uncertain as to the import of these higher-court pronouncements. In this latest decision, Justice Dollinger explained that it was still unclear whether the Fourth Department was ordering the husband to provide permanent, ongoing medical insurance to his ex-wife. “For some reason,” he wrote, “the higher court, when asked to advise this court on whether its 2000 decision was 'ambiguous,' has simply instructed this court to 'do what you were told to do' and not specified exactly what it wanted done.”

In the meantime, the wife, who is the less-monied spouse, has run up $12,500 in attorney fees fighting for the medical insurance she believes she is entitled to. Under these “unique facts,” Dollinger decided, denying the wife award of counsel fees would violate the “court's ultimate sense of fairness.”

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Woman Married to Biological Mother Is a 'Parent'

Supreme Court erred in determining that a woman lacked standing to seek visitation, because the doctrine of comity required the New York court to recognize the Connecticut marriage of the same-sex divorcing parties. Counihan v. Bishop , 2013 N.Y. App. Div. LEXIS 7097 (2d Dept. 11/6/13) (Eng, J.P., Balkin, Lot and Roman, JJ.).

The parties are two women, residing in New York, who were married in Connecticut in 2009. When they decided to have a child, in 2010, the defendant was artificially inseminated. The child was born in September, 2010.

On the birth certificate, the plaintiff was listed as the second mother, and the child's name was the hyphenated last names of the two mothers. The parties separated in 2012, but the plaintiff continued to see the child a few times per week, including for overnight visits.

In January 2013, the plaintiff filed for divorce in New York. She sought custody of the child, or at least visitation. Supreme Court, without conducting a hearing, concluded that the plaintiff, not being biologically related to the child nor its adoptive parent, did not have standing to seek custody or visitation. Therefore, sole custody was awarded to the defendant biological mother.

On appeal, the Second Department found that even though New York's Marriage Equality Act had not been enacted at the time the child was born, the couple's lawful Connecticut marriage should have been recognized by the Supreme Court. If it had done so, the plaintiff would also have been recognized as the child's parent under New York law. As a parent, the plaintiff did indeed have standing to seek custody and/or visitation, so the matter was remanded for further proceedings.

Engagement Is 'Intimate Association' Protected by First Amendment

The U.S. Court of Appeals for the Second Circuit has become the first to interpret the U.S. Supreme Court decision of Roberts v. United States Jaycees , 468 U.S. 609 (1984), to find that there is an “intimate association” right in betrothal. Matusick v. Erie County Water Authority , 739 F.3d 51 (2d Cir. 1/6/14).

The Matusick case involved a white man who became engaged to an African-American woman in 2004. He had worked as a dispatcher for the Erie County Water Authority (ECWA) since 1992, and claimed that he was harassed and eventually fired in 2006 as a result of his engagement. The couple were not married until 2009.

The man brought suit against the ECWA, claiming violation of his constitutional right of intimate association. A jury found for the plaintiff against the Erie County Water Authority and awarded him punitive damages. The defendant appealed.

The Second Circuit noted that the U.S. Supreme Court, in Roberts v. United States Jaycees, declared that a right of intimate association exists as regards affiliations “that attend the creation and sustenance of a family ' marriage, childbirth, the raising and education of children and the cohabitation with one's relatives.” In confirming the extension of this constitutional protection to engaged persons, Judge Robert Sack wrote for the Second Circuit majority: “The Roberts Court's reference to traditional familial relationships, most notably marriage, has led some courts to conclude that the right does not extend to romantic relationships beyond marriage. We think this is an unduly narrow reading of Roberts. The Court did not suggest that constitutional protections extended only to the relationships it enumerated.” The Second Circuit determined that it was appropriate to extend to similar relationships the protections afforded to marriage, including, as in this instance, the relationship of engagements, because “at least to the extent that a relationship of betrothal constitutes an expression of one's choice of marital partner, it shares the qualities ascribed by the Roberts Court to marriage and other protected forms of intimate association.” Therefore, the court affirmed the award of punitive damages against the Erie County Water Authority.

SEC Lien Supercedes Conveyance to Ex-Wife

The U.S. Securities and Exchange Commission (SEC) is entitled to a lien on property once owned by a divorced husband as a tenant by the entirety even though he conveyed it to his ex-wife post-divorce, because the SEC filed the judgment entitling it to the property prior to the divorce and conveyance. Securities and Exchange Commission v. Vuono, 2013 U.S. Dist. LEXIS 182121 (E.D. N.Y. 12/26/14).

In 1992, the SEC, obtained a judgment against the husband. Then, in 1995, the wife obtained title to real property (the Property) in her name alone. On Aug. 8, 2006, she transferred the Property to herself and the husband as tenants by the entirety.

The wife filed for divorce in 2010, and that divorce was finalized on March 22, 2013. Through a deed dated June 24, 2013 and recorded on July 30, 2013, the now ex-husband tranferred his interest in the Property to his ex-wife. Meanwhile, in 2012, the SEC registered the 1992 judgment with the Suffolk County Clerk, and on May 15, 2013, it registered the same in the Eastern District of New York.

In this action, the SEC asked for, and was granted, a declaratory judgment that the Property could be reached to satisfy the 1992 judgment. It did not matter that the lien attached after the wife filed for divorce; the husband continued to hold an interest in the property as a tenant by the entirety until the final divorce was granted. So the SEC, as of the filing of the transcript of the 1992 judgment, acquired any interest the husband held in the Property at that time. Ultimately, the court determined that the SEC now has a one-half interest in the Property ' that portion that could be said to be the husband's at the time the transcript was filed.

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Unusual Award: Attorney Fees to Non-Prevailing Party

A woman who has not been successful in over a decade's time in getting the court to order her husband to pay for her medical insurance coverage post-divorce has nevertheless been awarded attorney fees, because the court concluded it would be unfair not to so order. Lomaglio v. Lomaglio, 97/653, 2013 NY Slip Op 23438 (Dollinger, J.).

The parties, divorced in 1998, have been in litigation in the appellate courts for years, with the first appellate decision concerning the wife's medical insurance being issued in 2000 ( Lomaglio v. Lomaglio , 273 AD2d 823 (4th Dept. 2000). The last such decision came out in 2012, but Acting Supreme Court Justice Richard Dollinger, who is handling the case at the trial level, remains uncertain as to the import of these higher-court pronouncements. In this latest decision, Justice Dollinger explained that it was still unclear whether the Fourth Department was ordering the husband to provide permanent, ongoing medical insurance to his ex-wife. “For some reason,” he wrote, “the higher court, when asked to advise this court on whether its 2000 decision was 'ambiguous,' has simply instructed this court to 'do what you were told to do' and not specified exactly what it wanted done.”

In the meantime, the wife, who is the less-monied spouse, has run up $12,500 in attorney fees fighting for the medical insurance she believes she is entitled to. Under these “unique facts,” Dollinger decided, denying the wife award of counsel fees would violate the “court's ultimate sense of fairness.”

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