By: Avi Cohen

http://www.lawfirms.com/resources/divorce/are-tuition-expenses-private-school-recoverable-child-support-divorce-order

Are non-custodial parents obligated to contribute towards private/religious school expenses once child support has been determined by the court?  This is a question that many practictioners have tried to push for (and others defend against), and one that the NY courts have not drawn a line in the sand and ordered either party one way or the other.
The Family Court Act (“FCA”) section 413(1)(c)(7) provides in pertinent part: “Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider.”

On its face, FCA 413 would seem to indicate that non-custodial should in fact be responsible for private school expenses. However, courts are free to use their own discretion in determining such orders.  For example, some of the factors the courts take into consideration include the parents’ educational background (i.e. whether they themselves enrolled in private school), the grade of the child, how long he/she has been attending the school, whether the education they are receiving is superior to that of the local public school in their district, the financial resources of the parents, etc.

Although there are numerous cases which have found against private school contributions, the following cases have concluded that the non-custodial parent should be partially responsible for private school expenses, based on the parents’ pro rata combined earnings.

In Matter of Overbaugh v. Schettini, 103 A.D.3d 972 (3rd Dep’t 2013), the Court directed that the father “pay 50% of the child’s private school tuition.”  Id. at 974.  Thus, where there are prior orders of support that are “silent as to the parties’ responsibility for the costs of a private secondary education, [a] Family Court may award educational expenses as justice requires, ‘having regard for the circumstances of the case and of the respective parties and in the best interests of the child.'” (Family Ct Act § 413 [1] [c] [7]; seeMatter of Wen v Wen, 304 AD2d 897, 898, 757 NYS2d 355 [2003]; see alsoMatter of Amos-Richburg v Richburg, 94 AD3d 1112, 1113, 942 NYS2d 613 [2012]; Matter of Durso v Durso, 68 AD3d 1107, 1108-1109, 893 NYS2d 81 [2009]). The “Relevant factors . . . include the parents’ educational background, the child’s academic acuity and the financial situation of the parents.” (Matter of Wen v Wen, 304 AD2d at 898 [citations omitted]).  Id.

In Overbaugh, when trial was taking place, the child was beginning his fifth year at the private school. His father, “who attended private school as a child, was consulted regarding (and did not oppose) the initial decision to send the child to a private school—a decision that was based upon, among other things, the child’s prior performance at a public elementary school.”  Id. Additionally, “the father’s stepson and daughter from a subsequent marriage both attend private schools and, further, that the father has the financial resources to contribute to his son’s educational expenses ‘without impairing his ability to support himself and maintain his own household.'”  Id. at 975 (citation omitted.) Based on these circumstances, “the Support Magistrate appropriately concluded that the father should pay 50% of the child’s tuition, and [the] Family Court, in turn, properly denied the father’s objection thereto.”  Id.

Similarly, in a recent Family Court Order, a father consented to his son’s enrollment in a private school.  Kristina Lynn B. v. Joseph T.M., 958 N.Y.S.2d 293 (Fam. Ct. Albany Cty. 2013).  As a result, the Family Court perceived it as

an admission on his part that CBA was the best educational setting for his son.  On the other hand, the parents’ agreement that the mother would pay for CBA is not relevant to the outcome of these objections. The reason that is so is because Family Court has no authority to enforce contracts (seeBoden v. Boden, 42 NY2d 210, 366 N.E.2d 791, 397 N.Y.S.2d 701; Brescia v. Fitts, 56 NY2d 132, 436 N.E.2d 518, 451 N.Y.S.2d 68). If it could, it would be possible that the Court would be asked to set aside the parents’ agreement beyond the first year because there was no agreement in writing required by the statute of frauds (GOL §5-701). Or, perhaps, the mother would have argued that the father’s acquiescence to the child’s enrollment in the 7th grade at the private school might be deemed a renewal of the agreement for which the father is estopped from registering an objection. Because Family Court is a court of limited jurisdiction, it has no authority to rule on such issues. Its jurisdiction is limited, in this case, to applying FCA §413(1) (c)(7) to the evidence. The interpretation of an oral contract between the parties or imposing equitable relief is beyond this Court’s authority.

Id. at 294.

The Magistrate’s finding that the father should be responsible for his proportional share of the son’s private school expenses possesses a sound and substantial basis.  Part of the reason for the change in schools was due to the fact that the “‘child had been diagnosed with an auditory processing disorder in 2009 … [and] has been suffering from a depression and other emotional difficulties which has required treatment with increasing dosages since 2009.'”  Id. (citation omitted.)  The Magistrate also concluded that “since the child’s transfer to private school, he has been thriving and his emotional state has improved resulting in a decrease in his medication. It was also established that the father’s income increased by 41% or $44,600 since the last support order, which was the judgment of divorce issued in 2007.”  Id. at 295.

The Court noted that the “language ofFCA §413(1)(c)(7) does not command any formula with respect to apportionment of private school tuition.”  Id.  Thus, the father was able to make a “plausible claim that the reference in FCA §413(1)(c)(7) to a determination ‘as justice requires’ would allow the Court to take into account that the mother reneged on her agreement to pay for the total cost of tuition.”  Id.  However, the Court did not read that phrase as “a green light by the Legislature for the Family Court to assume subject matter jurisdiction not specifically given to the Court by positive law [and] [e]ven if it could be read this way, the father’s consenting to allow his child to be enrolled in the selected school for two academic years would be a convincing counterweight to the argument suggested.”  Id.  Therefore, the Court ordered that the father was responsible for paying his proportional share of the tuition simply because the Magistrate findings support such a conclusion.  As a result, the father was ordered to pay 71% of the son’s tuition and other fees for the school year.

Finally, in Mahoney-Buntzman v. Buntzman, N.Y. Misc. LEXIS 2754, at **116-17 (N.Y. Sup. Ct. Weschester Cty. Oct. 3, 2006), the Court determined that although private school expenses don’t constitute mandatory “add-ons” under the Child Support Service Act, a father may be ordered by the court to contribute to his daughters’ college expenses if it “determines that such an award is appropriate.”(Matter of Calvello v. Calvello, 20 A.D.3d 525, 526-527, 800 N.Y.S.2d 429 [2d Dept. 2005]; seeFCA § 413[1][c][7]; DRL § 240[1-b][c][7]).  Nonetheless, “a court does not have unfettered discretion in making such an award. Rather, consistent with CSSA, the Court ‘must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice.'” Id. at *116-117 (citations omitted).

In conclusion, there is a strong argument to be made that private school expenses can and will be ordered to be shared by the parents.  Know your rights prior to any order of support.  If there is a history of private school enrollment, superior quality of education and the length of time spent in private school, a court may find that it is, in fact, in the child’s best interests to continue enrollment in private school.

Source from: http://law.justia.com/cases/new-york/other-courts/2015/2015-ny-slip-op-51290-u.html

Salgado v Deglinnocenti 2015 NY Slip Op 51290(U) Decided on September 2, 2015 District Court Of Nassau County, First District Fairgrieve, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 2, 2015
District Court of Nassau County, First District

Teresa Salgado and Carmino Salgado, Plaintiff(s)

against

Adele Deglinnocenti, Defendant(s)

CV-027833-13

Meltzer, Lippe, Goldstein & Breitstone, LLP

Attorneys for Plaintiffs

190 Willis Avenue

Mineola, New York 11501

516-747-0300

Hankin & Mazel, PLLC

Attorneys for Defendant

60 Cutter Mill Road, Suite 505

Great Neck, New York 11021

516-499-5800

Scott Fairgrieve, J.
Trial Decision

Plaintiffs commenced this action against defendant Adele Deglinnocenti to recover the sum of $6,800 allegedly given her as a loan to assist in paying her mortgage.

In her Answer dated December 20, 2013, Defendant denies liability for the loan and asserts a counterclaim for $25,000 based upon frivolous conduct.

Facts

Carmino Salgado (“Plaintiff”) testified at trial that he came to know Defendant through his business dealings with her husband, Benny Malluzio. They started doing a joint venture in Miami in “2010 or so”, for which Plaintiff provided the financing.

Plaintiff was asked by Benny Malluzio for a loan to his wife, Defendant Adele Deglinnocenti, to help pay the mortgage, which was in arrears. Plaintiff testified as follows:

Q.Now, this loan, describe, I guess describe the circumstances surrounding the loan, when you gave the loan to the Defendant.
A.I gave the loan to the Defendant at the request of her husband. And her husband asked me that he was behind along with Adele on the mortgage of the house. If I could help him with a check to alleviate, or to satisfy the mortgage to the bank. That they would get the money back to me within a month.
In 2011, Plaintiff spoke with Defendant via phone, and gave Plaintiff her name and the amount of the check. They also discussed that the check was to help with the mortgage.

Plaintiff testified that he issued a check to Defendant, dated June 13, 2011, in the sum of $6,800. The check, numbered 0691, is drawn on BCP Bank. In the memo section of the check, Plaintiff wrote “Loan to Benny.”

Plaintiff proffered a copy of the original check, which this court allowed into evidence, over objection by Defendant, as explained in the legal discussion portion of this decision. Plaintiff failed to subpoena the original check from the Bank.

Plaintiff delivered the check to Defendant’s residence located in Whitestone, Queens, New York. When Plaintiff gave the check to Defendant, the Defendant stated:

Q.And did the Defendant agree to these terms?
A.I was the understanding. She didn’t exactly agree to it. She said we will pay you within, you know, whatever time you say. She knew it was a loan, if that’s the question.
On cross examination, Plaintiff again stated that he spoke to Defendant on the phone to ask her name and the amount of the check. Plaintiff had never spoken to Defendant before the conversation about the loan.

Plaintiff testified that the loan agreement was not with Benny Malluzio. Plaintiff wrote “loan to Benny because that’s her husband’s name. And it would remind me what the check was for.”

Plaintiff stated that he spoke to Mr. Malluzio and he asked if Plaintiff could help his wife with the mortgage payments; the house was in the wife’s name. If the house was in the name of Mr. Malluzio, then he would have made the loan directly to him.

Plaintiff spoke to Defendant who gave him her name and the amount she needed.

On cross examination, Plaintiff first stated that he spoke to Defendant about paying him back within a month. However, when pressed on this subject, Plaintiff testified that he might not have had the foregoing conversation.

Q.On that conversation – – that two-minute conversation? Did you say anything further to her?
A.Yeah, that this was to help her out so she could pay me back within a month or so?
Q.You said that to her on the phone?
A.We had that conversation.
Q.You said that to her on the phone?
A.I might have not said it – –
Q.Under oath? Under oath?
A.No, I might not have said it. No I might not have said it.
Q.You might not have said it, okay.
A.But when I delivered the check it was discussed.
Q.Okay. You’ve got to make up your mind. Because this is a court of law.
A.Right.
* * *Q.I want to know if you remember saying it? If you’re not sure you said it? Tell the court.

A.I’m not sure I said it.
A day after the phone call, Plaintiff went to Defendant’s home in Whitestone to deliver the check. Defendant opened the door and Plaintiff gave her the check and stated “Here’s the check for your mortgage payment.” Plaintiff testified “I don’t remember [the] specific conversation I had with her.”

On redirect, Plaintiff again reiterated that he called Defendant and obtained her name and the amount for the check:

Q.Pursuant to a conversation you had with her? Did you have a conversation with – –
A.Yeah, I was calling because her husband instructed me to call her and we went through the scenario of what the check was for, and what the amount was for. And that’s how I got the amount right, and the name right.
Defendant testified that she neither met nor spoke with Plaintiff prior to the date of the trial. Her husband Ben told her a check was being dropped off by Mr. Salgado, and she was to deposit the check into their joint account. The check was placed in her mail box, but she never spoke to Plaintiff about the check.

Defendant denied making an agreement with Plaintiff about the check.

On cross examination, Defendant remembered depositing a check but not the specific check before the court. Her last name is Deglinnocenti and her husband never used this name.

Defendant did not recall receiving $6,800 from Plaintiff personally, but it was in her mail box.

Defendant stated at trial that the wording “for deposit only” on the back of the check didn’t look like her handwriting. Defendant stated the following concerning receiving the $6,800:

Q.So, $6,800 was to poof, it vanished? You never received $6,800 was your testimony.
A.I never received $6,800 from – – I’m sorry. Even with my glasses I can’t read this.

Law
The first question before this court was the admissibility of the copy of the $6,800 check into evidence. Defendant objected to the copy of the check being placed into evidence based upon the best evidence rule. Defendant urged that the original check had to be used and not a copy. Plaintiff never attempted to secure the original check from the bank for trial.

Over the objection of Defendant, this court allowed into evidence a copy of the check. This was the correct procedure to follow based upon the Second Department holding in Rotanelli v. Longo, 210 AD2d 392, 620 NYS2d 130 (2d Dept 1994). In Rotanelli, the Court held:

We find no error in the admission of the copy of the loan check into evidence. The defendant admitted that the plaintiff had tendered a check for $12,000 and that he had signed the check over to a business associate for investment in a limited partnership. Because there was no dispute as to the contents of the writing (i.e., the check), but only as to whether the money was intended as a gift or a loan, the best evidence rule did not prevent admission of the check into evidence (see, Richardson, Evidence, § § 568, 572 et seq. [Prince 10th ed.]).
See also NY Jur Evidence, § 246 and Edith L. Fisch, Fisch on New York Evidence, 2nd ed, § 87, Photographs and Reproductions, both explaining the widespread use of photographic reproductions of writings.

In the case at bar, the parties agree that a check was issued by Plaintiff for the mortgage. Plaintiff testified that he gave a $6,800 check to Defendant (Exhibit 1). Defendant denies having personally received Exhibit 1, but does admit that she found a check from Plaintiff in her mail box and deposited it into her joint account with her husband. Defendant denies writing “for deposit only” on Exhibit 1.

Based upon the above, the issue before the court is whether Exhibit 1 was a loan which Defendant agreed to repay or a loan to Defendant’s husband, Benny Malluzio, for which he is [*2]liable.

This court finds the case at bar very difficult to decide. However, based upon a thorough review of the testimony, it is the determination of this court that Plaintiff made the loan agreement with Benny Malluzio and not with the Defendant.

This court finds that Plaintiff did call Defendant and obtained the spelling of her name and the amount of the check. However, there was no express promise by Defendant to repay the loan. Instead, Defendant was a third party beneficiary of the loan agreement between Plaintiff and Benny Malluzio.

On cross examination, Plaintiff admitted that he might not have had a conversation with Defendant about paying him back within a month or so. In fact, Plaintiff testified, “I’m not sure I said it.”

In Crozier v. Sauers, 109 AD3d 507, 508, 970 NYS2d 323 (2d Dept 2013), the Second Department upheld the finding of the lower court that Defendant Sauers did not agree to be personally liable for the loan money, which was used by a corporation of which Defendant Sauers was an owner:

Here, the parties understood that the funds were intended to be used for corporate purposes, were advanced to the corporation, were deposited into the corporation’s account, and were actually used for corporate purposes. Furthermore, the plaintiff failed to adduce evidence that Sauers agreed to be personally responsible for repaying the loan prior to the advancement of the funds. Under the circumstances presented here, the Supreme Court’s determination that Sauers agreed to be personally liable for the debt alleged by the plaintiff was not warranted by the facts (see Melius v. Breslin, 46 AD3d 524, 525, 846 NYS2d 645; see also Glazer v. Ottimo, 84 AD3d 1023, 923 NYS2d 855; Kallman v. Pinecrest Modular Homes, Inc., 81 AD3d 692, 693, NYS2d 221; Knect v. Nassau County Native Ams. Inc., 41 AD3d 435, 436, 837 NYS2d 717).
Accordingly, the judgment must be reversed and the complaint dismissed insofar as asserted against Sauers.

In the instant case, the Plaintiff failed to sustain his burden of proof that a loan was agreed to between the parties. The fact that Defendant received a benefit of Plaintiff’s dealings with Benny Malluzio does not make her liable for the loan. Such was the case in Fountoukis v. Geringer, 33 AD3d 756, 822 NYS2d 644 (2d Dept 2006), wherein the Defendant Cohler was not liable because he didn’t request the money transfer:

Similarly, as to the cause of action for unjust enrichment, the plaintiff must look for recovery to Geringer, and not Cohler, since the $200,000 money transfer was performed at the behest of Geringer (see Schuckman Realty v. Marine Midland Bank, 244 AD2d [*3]400, 401, 664 N.Y.S.2d 73; Kagan v. K-Tel Entertainment, 172 AD2d 375, 376, 568 N.Y.S.2d 756).
Also on point is Kagan v. K-Tel Entertainment, Inc., 172 AD2d 375, 568 NYS2d 756 (1st Dept 1991), wherein the First Department ruled that a defendant cannot be held responsible if services were performed from which defendant received a benefit and s/he didn’t request the service:

Plaintiffs’ claim is without merit. As reflected in the common law of the various states, to recover under a theory of quasi contract, a plaintiff must demonstrate that services were performed for the defendant resulting in its unjust enrichment (Kapral’s Tire Svc. v. Aztek Tread Corp., 124 AD2d 1011, 1013, 508 N.Y.S.2d 777). It is not enough that the defendant received a benefit from the activities of the plaintiff (Armstrong v. I.T.T.S. Corp., 10 AD2d 711, 198 N.Y.S.2d 641); if services were performed at the behest of someone other than the defendant, the plaintiff must look to that person for recovery (Citrin v. Columbia Broadcasting, 29 AD2d 740, 286 N.Y.S.2d 706).
Applying the Kagan rationale to the case at bar, Plaintiff must look to Benny Mazullio for repayment of the loan because the agreement was between them. Plaintiff has failed to sustain his burden that Defendant agreed to repay the loan. This result is entirely consistent with the Second Department’s holding in JLJ Recycling Contractors Corp. v. Town of Babylon, 302 AD2d 430, 431, 754 NYS2d 897 (2003):

Contrary to the plaintiff’s contention, it was not entitled to recover the value of the services it provided to the Babylon Recycling Center, Inc., which benefited the defendant Town of Babylon. Under the theory of quantum meruit, if the services were performed at the behest of someone other than the defendant, the plaintiff must look to that party for recovery.

Conclusion
Based upon the above, the case is dismissed because Plaintiff failed to sustain his burden of proof that Defendant agreed to be responsible for the loan. The Defendant was a third party beneficiary of the loan agreement between Plaintiff and Mr. Malluzio.

So Ordered:

Hon. Scott Fairgrieve

Sourced from newyorklawjournal.com

A Manhattan Supreme Court judge has levied a $317,000 sanction against a law firm and two of its partners in a matrimonial case, saying they made “misrepresentations and knowingly false statements to the court.”
Justice Ellen Gesmer, ruling in the five-year-long case of L.G. v. M.G., 310479/10, said Abe Konstam and Madeline Nisonoff, partners at Mallow, Konstam, Mazur, Bocketti & Nisonoff, had prolonged the litigation by bringing frivolous motions directing their clients not to comply with a subpoena.
Konstam and Nisonoff, who jointly represent the husband and his parents, also were faulted for failing to notify their adversary that the husband did not wish to proceed with hearings until shortly before the issues were to be heard.
Gesmer said they had “concealed pertinent information relative to the parties’ matrimonial litigation” and ordered that her ruling be sent to the Departmental Disciplinary Committee.
The attorneys plan to appeal the sanction.
“The decision is clearly erroneous,” Konstam said in a brief interview Friday. “We have every expectation that it will be reversed on appeal.”
Konstam, in practice since 1975, said he was sanctioned by a court only once, over 30 years ago. He said Nisonoff, who was admitted in 1992, had never been sanctioned.
Gesmer had sanctioned the husband in the case in 2013, ordering him to pay $200,000 to the wife for violating the court’s orders and engaging in dilatory and deceptive tactics that required the wife to bring numerous motions.
The 2013 order also sanctioned the husband’s parents, ordering them to pay $213,000 for refusing to comply with the subpoena.
The order is under appeal.
Gesmer held a hearing in December on the attorney sanctions motion, which sought nearly $1 million, and found the partners’ testimony “not credible.” Konstam “was evasive and uncooperative, even when identifying the bills from his own law firm” and Nisonoff’s “statements were contradicted by her own exhibits,” the Aug. 21 opinion said.
Gesmer said Nisonoff admitted she had advised her clients not to comply with the subpoena “because she disagreed with the denial of her oral motion to quash on the previous day.”
The opinion recited the bitter and tragic nature of the case, noting that the couple had married in their late 20s, had a child, and then a year later the husband had a brain aneurism that resulted in his being in a coma for several weeks. He has lived in a rehabilitation facility since 2008.
Citing a breakdown in the marriage caused by the intervention of the husband’s parents, the wife sued for divorce in 2010.
Gesmer said the husband’s parents had taken charge of the matrimonial litigation. The opinion quoted an email they sent to the Konstam firm directing them to “go after [the mother] with a vengeance.”
The emails also disclosed that the husband did not share his parents’ desire to seek custody of and then visitation with the daughter. Gesmer noted it was the parents who had paid all of Konstam’s legal fees.
Emails produced by the wife’s attorney at the sanctions hearing showed the husband had wanted to discontinue a proceeding seeking visitation.
Gesmer said Konstam and the parents nevertheless went ahead with extensive briefings and a six-day trial on the issue.
A separate proceeding was brought by the husband repudiating an agreement to arbitrate any disputes with the wife before a Beth Din, the Jewish religious court. Gesmer said the husband initially denied ever signing the agreement but, after extensive motion practice, admitted the signature was his.

The judge noted that, despite his condition, the husband had “appeared at every court proceeding, submitted numerous sworn statements to the court, and testified both at his deposition and at trial. There has never been an application for an appointment of a guardian or a guardian ad litem.”
The wife is represented by Karen Rosenthal, a partner at Bender Rosenthal & Richter.

Sourced from: http://m.newyorklawjournal.com/module/alm/app/ny.do#!/article/1753143982

Andrew Denney
08/28/2015

A 20-year-old man is entitled to $5,000 as an overdue bar mitzvah gift that he claimed his mother failed to deliver from his grandmother, a Nassau County court found.
Jordan Zeidman had sued his mother, Shirley Zeidman, over the gift from his maternal grandmother, Rachel Steinfeld, who had attended his October 2007 bar mitzvah. Steinfeld, who had not been invited, told Jordan Zeidman in front of his mother, who also had not been invited, that she would give him $5,000 “just like I gave to your brother and sister.”
According to Nassau District Court Judge Scott Fairgrieve’s decision in Zeidman v. Zeidman, CV-011924-14, Jordan Zeidman said he never received his grandmother’s gift. He had moved out of his mother’s house around the time of his bar mitzvah because of their “uneasy” relationship and said that the two had been estranged ever since.
After filing a small claims complaint against his mother, he submitted into evidence a bank document with statement of deposits into his college fund containing a handwritten note stating: “I owe Jordan $190.00 + $5,000 from Baba.”
Steinfeld is often referred to by relatives as “Baba,” which was confirmed by Steinfeld and both Jordan and Shirley Zeidman, according to court papers.
Steinfeld testified that she neither gave $5,000 to Jordan Zeidman directly, nor gave it to his mother to hold for him, but admitted giving $5,000 gifts to Jordan Zeidman’s brother and sister for their bar and bat mitzvahs.
Shirley Zeidman testified at a hearing that the handwriting on the note could be hers, but she denied receiving money from her mother to pass along to her son, who said he recognized his mother’s handwriting from when they lived together.
Fairgrieve ruled that Shirley Zeidman is liable for both conversion and unjust enrichment for failing to transfer the gift to her son. Citing Gruen v. Gruen, 68 N.Y.2d 48, 505 N.Y.S.2d 849 (1986), Fairgrieve wrote that the three elements necessary to establish an inter vivos gift are that there was an intent to make an irrevocable transfer of ownership, an actual delivery of the property and an acceptance of the gift by the donee.
The third element may be presumed if the purported gift is of significant value, which is the case in Zeidman, the judge wrote.
Fairgrieve said the evidence in the case shows that Steinfeld came to the bar mitzvah with the intention of giving a $5,000 gift to her grandson, and that the handwritten note on the bank document supports that the gift was made.
The note also proves that the plaintiff’s mother—who was considered a third party representing her son as a fiduciary agent—was liable for the gift, the judge wrote. He cited a Brooklyn Surrogate’s Court decision from 1956 in In re Gilligan’s Estate, 157 N.Y.S.2d 740, in which the court held that IOU slips in a decedent’s handwriting amounted to admissions of valid debts.
Steven Cohn, a Carle Place attorney who represented Jordan Zeidman, said in an interview that, with interest and court costs, the judgement against Shirley Zeidman should be about $12,000.
There is a three-year statute of limitation for conversion claims and a six-year limit for unjust enrichment claims (see Civil Practice Law and Rules §§214[3] and 213[2]). But Cohn said the statutes of limitation were extended because Jordan Zeidman was a minor when his mother deprived him of the gift.
Jeffrey Schecter of Jeffrey S. Schecter & Associates in Garden City represented Shirley Zeidman. He said his client would seek an appeal of the ruling.
Schecter questioned why Steinfeld would give Jordan Zeidman a $5,000 gift—considering “the way her grandchild was treating her daughter”—noting that his client and her son were estranged at the time of his bar mitzvah and that neither Jordan Zeidman’s mother nor his maternal grandmother were invited to the event.
“I believe that the decision is not supported by the facts,” said Schecter, who added that he sees the dispute in Zeidman as part of a larger post-matrimonial battle between his client and her ex-husband, Andrew Zeidman.
Jordan Zeidman’s mother and father had divorced in 1998. Their separation agreement required both parties to contribute pro rata to their son’s college fund, but the decision states that Shirley Zeidman has not done so.
Cohn represents Andrew Zeidman in the post-matrimonial proceedings. He said the issue is not directly related with Jordan Zeidman’s case, but he said Andrew Zeidman was involved in bringing Jordan Zeidman’s case to court.
“If your kid is having emotional problems dealing with his mother, wouldn’t you work with your son?” Cohn asked.

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On June 24, 2015, the New York State Senate passed Bill A7645-2015 relating to the duration and amount of temporary and post-divorce spousal maintenance. The bill passed the State Assembly on June 15th. It awaits approval by Governor Cuomo.
The law’s formulas apply to actions commenced on or after the 120th day after they become law (except for the temporary maintenance formulas which apply to actions commenced on or after the 30th day after they become law). The new law may not be used as a basis to change existing orders and agreements.
The law will undoubtedly be the subject of numerous articles and legal seminars. Years of decisions will be forthcoming that particularly focus on matters of discretion, just as they followed the enactment of the Child Support Standards Act in 1989.
Before getting to the new formulas, the law eliminates a major thorn in side of the matrimonial bench and bar: When equitably distributing the assets of the parties, the court is no longer to consider as a marital asset the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement.
As to maintenance, the following highlights may be noted, many of which are contained in the Sponsor’s Memo:
1.     The “cap” on the payor’s income used for the maintenance formula is $175,000, above which will be a matter of the court’s discretion. This lowers the cap (now applying only to temporary pendente lite maintenance) from $543,000.The same $175,000 cap applies to post-divorce maintenance awards.
2.     There are two formulas: one where child support will be paid to the maintenance recipient; and one where child support will not be paid, or where it will be paid to the maintenance payor. Those formulas are as follows: a. With child support where the maintenance payor is also the non-custodial parent for child support purposes: (i) subtract 25% of the maintenance payee’s income from 20% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance; maintenance payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee’s income from 30% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.
3.     Maintenance gets calculated first. Child support is then calculated using the income of the payor after subtracting maintenance to be paid and the income of payee income including maintenance received.
4.     The court may adjust the guideline amount of maintenance up to the cap where it finds that the guideline amount of maintenance is unjust or inappropriate after consideration of one or more factors, which are to be set forth in the court’s written or on the record decision. Where there is income over the cap, additional maintenance may be awarded after consideration of one or more factors, which are to be set forth in the court’s decision or on the record.
5.     When determining temporary maintenance, the court can allocate between the parties the responsibility for payment of family expenses” while the divorce action is pending.
6.     The definition of income for post-divorce maintenance will include income from income-producing property that is being equitably distributed.
7.     New factors in post-divorce maintenance will include: termination of child support, income or imputed income on assets being equitably distributed, etc.
8.     The duration of post-divorce maintenance is a function a formula that includes ranges of different percentages of the marriage length depending on how long the marriage lasted. For marriages of zero to 15 years, maintenance would be awarded for 15% to 30% of the length of the marriage; for marriages of more than 15 up to 20 years, maintenance would be awarded for 30% to 40% of the length of the marriage; for marriages of more than 20 years, maintenance would be awarded for 35% to 50% of the length of the marriage. However, nothing prevents the court from awarding non-durational, post-divorce maintenance in an appropriate case.
9.     In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age.
10.  Actual or partial retirement will be a ground for modification of post-divorce maintenance assuming it results in a substantial diminution of income.
This law was one in a series of measures being introduced at the request of the New York’s Chief Administrative Judge, The Honorable A. Gail Prudenti, upon the recommendation of her Matrimonial Practice Advisory and Rules Committee. In developing this measure, Justice Jeffrey Sunshine, chair of the Advisory Committee, informally brought together lawyers belonging to different interest groups in an attempt to achieve a compromise on maintenance guidelines that addresses their sometimes conflicting concerns.
Sandra Rivera, Esq. and Michelle Haskin, Esq. represented the Women’s Bar Association of the State of New York; Alton Abramowitz, Esq. and Eric Tepper, Esq. represented the Family Law Section of the New York State Bar Association; Elena Karabatos, Esq. represented the New York Chapter of the American Academy of Matrimonial Lawyers; and Emily Ruben, Esq. and Kate Wurmfeld, Esq. represented the NYS Maintenance Standards Coalition.
As an example of the application of the formulas, consider the following calculations where a) the payor is the non-custodial parent and having income of $150,000, and the payee is a custodial parent having income of $50,000; and b) the payor and payee have the same incomes but there are no children being supported.