Decisions of Interest

No Modification of Child Custody Arrangement After Minor Change

Although a father with physical custody of his children failed to obtain the court's permission to move them to a new school district ' in violation of on of the terms of the couple's separation agreement ' the court held there was insufficient evidence of a significant change in circumstances that would warrant a modification of the existing custodial arrangement. Bobroff v. Farwell, — N.Y.S.2d —-, 57 AD3d 1284 (3d Dept., 12/24/08) (Peters, J.P., Spain, Lahtinen, Kane and Kavanagh, JJ.).

The father (respondent) in this action had primary physical custody of the couple's two children in accordance with their 2005 separation agreement, although the wife had joint legal custody with liberal parenting time rights. The agreement specifically provided that the children could not be moved from their then-current school district in the Village of Horseheads, Chemung County, without the consent of both parents or by an order authorizing such a move by Family Court. In May 2007, a divorce judgment was issued that incorporated, but did not merge with, the separation agreement. Three weeks after the divorce judgment was entered, the mother commenced the first of these proceedings by filing a Family Court Act article 6 petition seeking a modification of the custodial arrangement and an award giving her physical custody of the children. The mother claimed that such a change was justified primarily by the fact that the father, without her consent or court approval, had made arrangements to move the children to the City of Corning, Steuben County, and enroll them in a school district there. The father then filed a petition seeking the court's permission for such a move. After a hearing, Family Court dismissed the mother's petition and granted the father's petition permitting him to relocate with the children. The mother appealed.

The Third Department affirmed, finding that although the children would be moved to a new school district, the move would allow them to live in a home with their new stepmother and step-siblings, with whom they got along well. No evidence was presented to show that the new school district was inferior to the children's old school district. In addition, once the children moved to their new home, the mother would only have to travel an extra 12 miles to see them. Thus, the mother had failed to establish that the relocation of the children to Corning represented a substantial change of circumstances warranting a modification of the existing custodial arrangement.

To Remedy Breach of Pre-Nup, Wife Awarded Husband's Separate Property

Because a man breached a pre-nuptial agreement by failing to purchase a home to be co-owned by the couple, the divorcing wife was entitled to half the value of the property they had lived in since marriage, which was solely owned by the husband. Smith v. Smith, 350239/2005 (Sup. Ct., New York Cty. 1/9/09) (Beeler, J.).

The couple's pre-nuptial agreement called for the man to purchase a cooperative or condominium with his own funds, which the parties would use as their primary residence. According to the terms of that agreement, the purchased property was to be held jointly. Attempts to make such a purchase fell through, however, so the parties verbally agreed to renovate and use the husband's apartment in Manhattan as their primary residence. (In the property schedule attached to the pre-nuptial agreement, the husband valued that property at $4,500,000, with a $600,000 mortgage.) The woman later asked her husband, multiple times, to put the apartment into her name as well as his, but he never did.

During proceedings to settle financial issues in conjunction with their divorce, the parties sought interpretation of the agreement. Specifically, in the agreement both parties had waived any interest in each other's separate property, as well as any rights to maintenance. However, the woman asserted that the provision in which the man agreed to purchase an apartment with his own funds and place it in the couple's joint names was a promise that he had breached. The man asked the court, however, to interpret that provision as a stated intention that was not enforceable. He noted the fact that the agreement made no reference to the location, purchase price, size or quality of the apartment to be purchased, nor to the speed with which such purchase should be made. The court agreed that this made the provision imperfect, but it interpreted it in light of what the woman gave up (rights to maintenance, etc.). Considering her inferior financial position at the time of the signing of the agreement, the court found that the home purchase provision was a material provision of the agreement without which the agreement would provide no advantage to the woman. The husband's proposed reading of the provision, the court said, “vitiates the waiver of plaintiff's substantial rights to support or maintenance in alleged exchange for an ephemeral promise.” Having established that the promise to purchase an apartment and place it in both parties' names was a material provision of the agreement, the court stated that the voluntary conduct of the parties after they married “transmuted the Manhattan apartment, indisputably defendant's separate property before the marriage, into the primary residence of the parties which properly should have been held in joint names of the parties as stated in the agreement ' ” The remedy for the husband's breach was an award to the wife of half the value of the Manhattan apartment.

No Modification of Child Custody Arrangement After Minor Change

Although a father with physical custody of his children failed to obtain the court's permission to move them to a new school district ' in violation of on of the terms of the couple's separation agreement ' the court held there was insufficient evidence of a significant change in circumstances that would warrant a modification of the existing custodial arrangement. Bobroff v. Farwell, — N.Y.S.2d —-, 57 AD3d 1284 (3d Dept., 12/24/08) (Peters, J.P., Spain, Lahtinen, Kane and Kavanagh, JJ.).

The father (respondent) in this action had primary physical custody of the couple's two children in accordance with their 2005 separation agreement, although the wife had joint legal custody with liberal parenting time rights. The agreement specifically provided that the children could not be moved from their then-current school district in the Village of Horseheads, Chemung County, without the consent of both parents or by an order authorizing such a move by Family Court. In May 2007, a divorce judgment was issued that incorporated, but did not merge with, the separation agreement. Three weeks after the divorce judgment was entered, the mother commenced the first of these proceedings by filing a Family Court Act article 6 petition seeking a modification of the custodial arrangement and an award giving her physical custody of the children. The mother claimed that such a change was justified primarily by the fact that the father, without her consent or court approval, had made arrangements to move the children to the City of Corning, Steuben County, and enroll them in a school district there. The father then filed a petition seeking the court's permission for such a move. After a hearing, Family Court dismissed the mother's petition and granted the father's petition permitting him to relocate with the children. The mother appealed.

The Third Department affirmed, finding that although the children would be moved to a new school district, the move would allow them to live in a home with their new stepmother and step-siblings, with whom they got along well. No evidence was presented to show that the new school district was inferior to the children's old school district. In addition, once the children moved to their new home, the mother would only have to travel an extra 12 miles to see them. Thus, the mother had failed to establish that the relocation of the children to Corning represented a substantial change of circumstances warranting a modification of the existing custodial arrangement.

To Remedy Breach of Pre-Nup, Wife Awarded Husband's Separate Property

Because a man breached a pre-nuptial agreement by failing to purchase a home to be co-owned by the couple, the divorcing wife was entitled to half the value of the property they had lived in since marriage, which was solely owned by the husband. Smith v. Smith, 350239/2005 (Sup. Ct., New York Cty. 1/9/09) (Beeler, J.).

The couple's pre-nuptial agreement called for the man to purchase a cooperative or condominium with his own funds, which the parties would use as their primary residence. According to the terms of that agreement, the purchased property was to be held jointly. Attempts to make such a purchase fell through, however, so the parties verbally agreed to renovate and use the husband's apartment in Manhattan as their primary residence. (In the property schedule attached to the pre-nuptial agreement, the husband valued that property at $4,500,000, with a $600,000 mortgage.) The woman later asked her husband, multiple times, to put the apartment into her name as well as his, but he never did.

During proceedings to settle financial issues in conjunction with their divorce, the parties sought interpretation of the agreement. Specifically, in the agreement both parties had waived any interest in each other's separate property, as well as any rights to maintenance. However, the woman asserted that the provision in which the man agreed to purchase an apartment with his own funds and place it in the couple's joint names was a promise that he had breached. The man asked the court, however, to interpret that provision as a stated intention that was not enforceable. He noted the fact that the agreement made no reference to the location, purchase price, size or quality of the apartment to be purchased, nor to the speed with which such purchase should be made. The court agreed that this made the provision imperfect, but it interpreted it in light of what the woman gave up (rights to maintenance, etc.). Considering her inferior financial position at the time of the signing of the agreement, the court found that the home purchase provision was a material provision of the agreement without which the agreement would provide no advantage to the woman. The husband's proposed reading of the provision, the court said, “vitiates the waiver of plaintiff's substantial rights to support or maintenance in alleged exchange for an ephemeral promise.” Having established that the promise to purchase an apartment and place it in both parties' names was a material provision of the agreement, the court stated that the voluntary conduct of the parties after they married “transmuted the Manhattan apartment, indisputably defendant's separate property before the marriage, into the primary residence of the parties which properly should have been held in joint names of the parties as stated in the agreement ' ” The remedy for the husband's breach was an award to the wife of half the value of the Manhattan apartment.