Decisions of Interest

Loss of Unique Job Constitutes Actionable Change in Circumstances

Supreme Court Justice Carol MacKenzie ordered the downward modification of a man's support obligation to his wife because “a very unique set of circumstances” left him unable to obtain a job with similar compensation to his old job. Borelli-Maichin v. Maichin, 14001-06 (Sup. Ct., Suffolk Cty. 7/29/08) (MacKenzie, J.).

Pursuant to a settlement agreement, John Maichin, who earned about $205,000 per year at the time, had agreed to pay his ex-wife $4,100 a month in maintenance for 12 years, or until the marital residence was sold. At that point the maintenance payments would be reduced to $1,300 a month. Maichin was also to pay $1,900 a month for the couple's two children, ages 8 and 6. Although his ex-wife could have sold the residence at any time, she did not do so and the house is now in foreclosure.

After losing his job, Maichin sought a post-judgment downward modification, arguing there was a substantial, unanticipated change in circumstances in that he had recently been fired from his job as a “runner” for brokers at the stock exchange after technological advances rendered his services redundant. He argued he had attempted to find comparable work but was unable to do so. The court found Maichin's prior employment was unique because it was highly compensated but required no education, license or independent thinking, and that it was understandable and excusable that he could not find comparable employment. As he had shown an unanticipated and unreasonable change in circumstances, a downward modification was ordered.

Following the ruling, Maichin's attorney, Bryce R. Levine, said, “I'm hoping that this is a start of a trend toward the courts being a little more liberal in considering downturns in finances that can be directly traced to the economy.”

The Apartment Was Not His to Give

A former wife who intervened in her ex-husband's matrimonial matter with his second ex-wife won her bid for a vacatur of the stipulation the parties had entered because the man gave to his second ex-wife something he had already relinquished to his first ex-wife. D'Alessandro v. Edelmann, 350300/05 (Sup. Ct., N.Y. Cty. 9/10/08) (Visitacion-Lewis, J.).

When a woman, the intervenor in this action, and her husband divorced in 1993, the man gave up to her “all of his right, title and interest, if any, in and to” their apartment. Despite this relinquishment of rights in the apartment, the first wife allowed her ex-husband and his new wife and children to move into it.

The apartment building in question is owned by the City of New York and the man and his first wife had entered into its occupancy as squatters. In acknowledgment of the “sweat equity” invested by the squatting tenants, the City instituted a squatter homesteading program, under which low-income tenants could pay reasonable rents in exchange for their work and restoration of the buildings. The City is now in the process of converting the building's units into cooperative apartments, and has been involved for several years in litigation with the squatter-tenants regarding their status and property rights, if any.

When the man and his second wife divorced, he gave up to her by stipulation in open court all his ownership rights in the apartment, retaining a 50% equity share. Learning of this, the first wife moved to intervene. The motion was granted under CPLR 1012(a)(3), which provides for intervention as of right where an action involves the disposition or distribution of property and the movant may be adversely affected by the judgment. The right to intervene being established, the court went on to conclude that there was no basis in law or fact upon which to uphold the stipulation as between the man and his second ex-wife because, having previously relinquished his interest in the apartment to the intervening first wife, the man had no interest to give to his second ex-wife at the time of the stipulation.

Same-Sex Couple Married in Massachusetts May Divorce In New York

In a divorce case involving a same-sex couple married in Massachusetts, a Manhattan court became the first to invoke the doctrine of full faith and credit to recognize a marriage entered into in another state, where such unions are permitted; and upon recognizing it, acknowledging that it could be dissolved in New York's courts. C.M. v. C.C., 301842/08 (Sup. Ct., NY Cty., 10/14/08) (Richter, J.).

The court noted the state legislature has not enacted any statute prohibiting recognition of a same-sex marriage from another jurisdiction. The court also relied on Beth R. v. Donna M., in which a New York court held that a divorce was available for a same-sex couple married in Canada. The court saw no reason to distinguish between the Canadian marriage and the Massachusetts marriage in the instant case. Also, the court found its decision was consistent with Governor David Paterson's May directive that state agencies recognize same-sex marriages solemnized outside New York.

Loss of Unique Job Constitutes Actionable Change in Circumstances

Supreme Court Justice Carol MacKenzie ordered the downward modification of a man's support obligation to his wife because “a very unique set of circumstances” left him unable to obtain a job with similar compensation to his old job. Borelli-Maichin v. Maichin, 14001-06 (Sup. Ct., Suffolk Cty. 7/29/08) (MacKenzie, J.).

Pursuant to a settlement agreement, John Maichin, who earned about $205,000 per year at the time, had agreed to pay his ex-wife $4,100 a month in maintenance for 12 years, or until the marital residence was sold. At that point the maintenance payments would be reduced to $1,300 a month. Maichin was also to pay $1,900 a month for the couple's two children, ages 8 and 6. Although his ex-wife could have sold the residence at any time, she did not do so and the house is now in foreclosure.

After losing his job, Maichin sought a post-judgment downward modification, arguing there was a substantial, unanticipated change in circumstances in that he had recently been fired from his job as a “runner” for brokers at the stock exchange after technological advances rendered his services redundant. He argued he had attempted to find comparable work but was unable to do so. The court found Maichin's prior employment was unique because it was highly compensated but required no education, license or independent thinking, and that it was understandable and excusable that he could not find comparable employment. As he had shown an unanticipated and unreasonable change in circumstances, a downward modification was ordered.

Following the ruling, Maichin's attorney, Bryce R. Levine, said, “I'm hoping that this is a start of a trend toward the courts being a little more liberal in considering downturns in finances that can be directly traced to the economy.”

The Apartment Was Not His to Give

A former wife who intervened in her ex-husband's matrimonial matter with his second ex-wife won her bid for a vacatur of the stipulation the parties had entered because the man gave to his second ex-wife something he had already relinquished to his first ex-wife. D'Alessandro v. Edelmann, 350300/05 (Sup. Ct., N.Y. Cty. 9/10/08) (Visitacion-Lewis, J.).

When a woman, the intervenor in this action, and her husband divorced in 1993, the man gave up to her “all of his right, title and interest, if any, in and to” their apartment. Despite this relinquishment of rights in the apartment, the first wife allowed her ex-husband and his new wife and children to move into it.

The apartment building in question is owned by the City of New York and the man and his first wife had entered into its occupancy as squatters. In acknowledgment of the “sweat equity” invested by the squatting tenants, the City instituted a squatter homesteading program, under which low-income tenants could pay reasonable rents in exchange for their work and restoration of the buildings. The City is now in the process of converting the building's units into cooperative apartments, and has been involved for several years in litigation with the squatter-tenants regarding their status and property rights, if any.

When the man and his second wife divorced, he gave up to her by stipulation in open court all his ownership rights in the apartment, retaining a 50% equity share. Learning of this, the first wife moved to intervene. The motion was granted under CPLR 1012(a)(3), which provides for intervention as of right where an action involves the disposition or distribution of property and the movant may be adversely affected by the judgment. The right to intervene being established, the court went on to conclude that there was no basis in law or fact upon which to uphold the stipulation as between the man and his second ex-wife because, having previously relinquished his interest in the apartment to the intervening first wife, the man had no interest to give to his second ex-wife at the time of the stipulation.

Same-Sex Couple Married in Massachusetts May Divorce In New York

In a divorce case involving a same-sex couple married in Massachusetts, a Manhattan court became the first to invoke the doctrine of full faith and credit to recognize a marriage entered into in another state, where such unions are permitted; and upon recognizing it, acknowledging that it could be dissolved in New York's courts. C.M. v. C.C., 301842/08 (Sup. Ct., NY Cty., 10/14/08) (Richter, J.).

The court noted the state legislature has not enacted any statute prohibiting recognition of a same-sex marriage from another jurisdiction. The court also relied on Beth R. v. Donna M., in which a New York court held that a divorce was available for a same-sex couple married in Canada. The court saw no reason to distinguish between the Canadian marriage and the Massachusetts marriage in the instant case. Also, the court found its decision was consistent with Governor David Paterson's May directive that state agencies recognize same-sex marriages solemnized outside New York.