Litigation

Now that his mother was dead, the petitioner wanted to open his parents' divorce records to learn whether the divorce was valid and, if so, how title in the home was held. He alleged that assets of his father's were wrongfully converted by his mother because the divorce converted the title of their marital home from one of tenants by the entirety with rights of survivorship to tenants in common with no rights of survivorship. As such, the petitioner asserted, the deceased had no right to devise her ex-husband's share in the property.

Judge Pagones pointed to New York Domestic Relations Law (DRL) § 235(1), which states:

An officer of the court with whom the proceedings in a matrimonial action … are filed … shall not permit a copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party, except by order of the court.

The court explained that the reason for the policy is that divorce should be kept private, as it frequently involves embarrassing and painful details and, therefore, unless a third party has a very compelling reason to open the divorce proceeding records of other people, any request to do so should be denied. See Madsen v. Westchester County Clerk, 43 Misc 3d 1217[A] (Sup Ct, Westchester County 2014); Alan D. Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL C235:1.

In this case, evidence was presented that the decedent's sister was aware that the decedent had commenced divorce proceedings in 1981, and she also said she was aware that a deed from the petitioner's father conveying the entire property in issue had been given to the decedent. And, in fact, a deed dated Feb. 4, 1982, in which the petitioner's father conveyed his interest in the property to the decedent, was submitted to the court. With these things in mind, Pagones wrote, “In this Court's view, fishing expeditions into sealed records should not be permitted; rather, a petitioner seeking access to sealed records must be able to articulate and particularize the relevance of the information sought to an important pending matter. … Here, petitioner fails to establish a compelling reason for unfettered access to the divorce file, and therefore, the request must be denied.” In the court's view, the deeds showed the deceased's ownership in the property; additionally, the decedent had owned and used the property for more than 30 years without any challenge to the propriety of her ownership, further bolstering the conclusion that she owned the entire property outright. Because the court found that the petitioner's allegations were “insufficient to justify an intrusion into his deceased parents' divorce packet,” it dismissed the petition.

College Tuition Ordered? Not So Fast …

The Superior Court of New Jersey, Appellate Division, has returned a case to the lower court where an adult child sought contribution from her parents for her college tuition: The lower court failed to determine if the child had been legally emancipated before deciding on the tuition question, and a determination on the emancipation issue is a threshold one. Ricci v. Ricci, 2017 N.J. Super. LEXIS 17 (2/9/17).

The parties were divorced when their daughter, Caitlyn, was four years old. She lived with her mother, and her father remained involved in her life and paid child support. By the time Caitlyn had reached 19 years of age, she was having personal problems with her mother, so she moved in with her paternal grandparents. Her mother and father, agreeing that by this move Caitlyn had become emancipated, executed a document between themselves in which they agreed that child support was no longer due.

Caitlyn soon intervened in her parents' matrimonial matter, seeking to vacate their emancipation agreement and to compel them both to pay her college tuition. In October 2013, a judge permitted Caitlyn to intervene and ordered her parents to pay the less-than $2,000 tuition cost for her to attend Gloucester County Community College. Before completing her Associate's Degree, Caitlyn transferred to a much more expensive school, Temple University, and moved to compel her parents to pay for it. A newly assigned judge decided not to conduct a hearing because he concluded the matter was res judicata; he therefore “enforced” the October 2013 order by ordering the parents to pay the Temple University tuition.

On appeal, the Superior Court of New Jersey, Appellate Division, began its analysis by stating: “More than thirty years have passed since the Supreme Court issued Newburgh v. Arrigo, 88 N.J. 529, 443 A.2d 1031 (1982), which held “the privilege of parenthood carries with it the duty to assure a necessary education for children.” Id. at 543, 443 A.2d 1031. Necessary support for unemancipated children could include contribution toward the cost of a college education, even though the child has attained the age of majority. Id. at 543, 443 A.2d 1031. Since then, courts have struggled to define the scope of this parental obligation, as circumscribed by facts and circumstances unique to each family.”

In this case, Caitlyn asserted that she was not emancipated, while her parents disagreed, and the courts that imposed and enforced the October 2013 order never made a ruling on that initial question. “Only when Caitlyn proves she was unemancipated must a Newburgh analysis commence,” concluded the appellate court. It therefore reversed and remanded for a determination on the emancipation question.

Interestingly, the appellate court concluded its lengthy decision with this last sentiment:

Our final comments are observational. A plenary hearing on emancipation, mandated by law, has one winner and the chasm between parents and child surely will widen whatever the outcome. The initial motion judge was very sensitive to this possibility and urged the parties to seek an alternate course to reach resolution. We applaud that effort imbued with common sense. We also recognize demands placed on our Family Part judges do not allow the luxury of uninterrupted consideration of one matter at a time. Therefore, in addition to being emotionally draining and time consuming, litigation is expensive. In light of these realities, before undertaking the course outlined by law, we encourage the parties give serious consideration to whether their positions, and hopefully their relationship, could be reconciled by a different course of dispute resolution, which unlike litigation, might more closely address the dynamic and complex interactions between parents and child.

Deceased Parents' Divorce Records Remain Closed

In Matter of Denise J. Donohue, 2017 NY Slip Op 50094(U), 2016-387/A, decided Jan. 26 in Surrogate's Court, Dutchess County, NY, Surrogate Justice James D. Pagones denied the petition of a man who sought to open his parents' 1982 divorce records in order to help settle an estate dispute.

Petitioner William T. Donohue, the son of the decedent, petitioned the court to provide him access to his parents' divorce file, held by the County Clerk of Dutchess County, NY. The petitioner's parents were divorced in March 1982. On June 3, 2009, Denise Donohue published a will that specifically devised the house and the property on which it sat to her friend, Donald McCormich, Jr.

Now that his mother was dead, the petitioner wanted to open his parents' divorce records to learn whether the divorce was valid and, if so, how title in the home was held. He alleged that assets of his father's were wrongfully converted by his mother because the divorce converted the title of their marital home from one of tenants by the entirety with rights of survivorship to tenants in common with no rights of survivorship. As such, the petitioner asserted, the deceased had no right to devise her ex-husband's share in the property.

Judge Pagones pointed to New York Domestic Relations Law (DRL) § 235(1), which states:

An officer of the court with whom the proceedings in a matrimonial action … are filed … shall not permit a copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party, except by order of the court.

The court explained that the reason for the policy is that divorce should be kept private, as it frequently involves embarrassing and painful details and, therefore, unless a third party has a very compelling reason to open the divorce proceeding records of other people, any request to do so should be denied. See Madsen v. Westchester County Clerk , 43 Misc 3d 1217[A] (Sup Ct, Westchester County 2014); Alan D. Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL C235:1.

In this case, evidence was presented that the decedent's sister was aware that the decedent had commenced divorce proceedings in 1981, and she also said she was aware that a deed from the petitioner's father conveying the entire property in issue had been given to the decedent. And, in fact, a deed dated Feb. 4, 1982, in which the petitioner's father conveyed his interest in the property to the decedent, was submitted to the court. With these things in mind, Pagones wrote, “In this Court's view, fishing expeditions into sealed records should not be permitted; rather, a petitioner seeking access to sealed records must be able to articulate and particularize the relevance of the information sought to an important pending matter. … Here, petitioner fails to establish a compelling reason for unfettered access to the divorce file, and therefore, the request must be denied.” In the court's view, the deeds showed the deceased's ownership in the property; additionally, the decedent had owned and used the property for more than 30 years without any challenge to the propriety of her ownership, further bolstering the conclusion that she owned the entire property outright. Because the court found that the petitioner's allegations were “insufficient to justify an intrusion into his deceased parents' divorce packet,” it dismissed the petition.

College Tuition Ordered? Not So Fast …

The Superior Court of New Jersey, Appellate Division, has returned a case to the lower court where an adult child sought contribution from her parents for her college tuition: The lower court failed to determine if the child had been legally emancipated before deciding on the tuition question, and a determination on the emancipation issue is a threshold one. Ricci v. Ricci, 2017 N.J. Super. LEXIS 17 (2/9/17).

The parties were divorced when their daughter, Caitlyn, was four years old. She lived with her mother, and her father remained involved in her life and paid child support. By the time Caitlyn had reached 19 years of age, she was having personal problems with her mother, so she moved in with her paternal grandparents. Her mother and father, agreeing that by this move Caitlyn had become emancipated, executed a document between themselves in which they agreed that child support was no longer due.

Caitlyn soon intervened in her parents' matrimonial matter, seeking to vacate their emancipation agreement and to compel them both to pay her college tuition. In October 2013, a judge permitted Caitlyn to intervene and ordered her parents to pay the less-than $2,000 tuition cost for her to attend Gloucester County Community College. Before completing her Associate's Degree, Caitlyn transferred to a much more expensive school, Temple University, and moved to compel her parents to pay for it. A newly assigned judge decided not to conduct a hearing because he concluded the matter was res judicata; he therefore “enforced” the October 2013 order by ordering the parents to pay the Temple University tuition.

On appeal, the Superior Court of New Jersey, Appellate Division, began its analysis by stating: “More than thirty years have passed since the Supreme Court issued Newburgh v. Arrigo , 88 N.J. 529, 443 A.2d 1031 (1982), which held “the privilege of parenthood carries with it the duty to assure a necessary education for children.” Id . at 543, 443 A.2d 1031. Necessary support for unemancipated children could include contribution toward the cost of a college education, even though the child has attained the age of majority. Id. at 543, 443 A.2d 1031. Since then, courts have struggled to define the scope of this parental obligation, as circumscribed by facts and circumstances unique to each family.”

In this case, Caitlyn asserted that she was not emancipated, while her parents disagreed, and the courts that imposed and enforced the October 2013 order never made a ruling on that initial question. “Only when Caitlyn proves she was unemancipated must a Newburgh analysis commence,” concluded the appellate court. It therefore reversed and remanded for a determination on the emancipation question.

Interestingly, the appellate court concluded its lengthy decision with this last sentiment:

Our final comments are observational. A plenary hearing on emancipation, mandated by law, has one winner and the chasm between parents and child surely will widen whatever the outcome. The initial motion judge was very sensitive to this possibility and urged the parties to seek an alternate course to reach resolution. We applaud that effort imbued with common sense. We also recognize demands placed on our Family Part judges do not allow the luxury of uninterrupted consideration of one matter at a time. Therefore, in addition to being emotionally draining and time consuming, litigation is expensive. In light of these realities, before undertaking the course outlined by law, we encourage the parties give serious consideration to whether their positions, and hopefully their relationship, could be reconciled by a different course of dispute resolution, which unlike litigation, might more closely address the dynamic and complex interactions between parents and child.