Sylvie Cachay: A Beautiful Life Cut Short by Toxic Love

Domestic Violence comes in all shapes and forms.  Tragically, in the case of Sylvie Cachay, a toxic love affair with Nicholas Brooks that began in the summer of 2010 would end with her on December 9,  2010 by her lover’s very own hands.  The cause of Sylvie’s death was manual strangulation and forcible drowning.  As a family law and divorce attorney who deals with a broad spectrum of domestic violence issues including obtaining orders of protection for clients on a near daily basis, the tragic story of Sylvie Cachay sends chills up my spine.

Sylvie Cachay, 33, was a rising star in the world of swimsuit design.  Her bathing suits had been featured in magazines like Sports Illustrated, and stores like Bergdorf Goodman.  At approximately 3am on December 8, 2010, Sylvie Cachay was found submerged face up in a luxurious bathtub located in the middle of Room 20 at New York City’s exclusive SoHo House.  The bathtub water was running full blast and her small dog barking furiously nearby at the door. Her then boyfriend was Nicholas Brooks, 27, the son of Douglas Brooks, who is famous for having won an Oscar for the song “You Light Up My Life”. On July 11, 2013 a jury found him guilty of Intentional Murder. A quiet “yes!” was rang throughout the courtroom, followed by tears from nearly everyone present–in particular two jurors.  During the 20 hours that the jury deliberated, 29 notes had been sent out to the judge, with videos replayed and hours of testimony read.

During the trial which took place in New York Supreme Court (June/July 2013) prosecutors painted Nicolas Brooks as a lazy, unemployed pot headwho used Sylvie for money while he pursued escorts–his own trust fund having been cut off by his father.  Without question, there were intense emotions in the relationship with Sylive writing to Nicholas at one point, “I love you so much it hurts”.  Days later her message to him read; ” Fuck You “

Brooks’ attorney argued  during the trial that Cachay, who was 33, drowned accidentally after she passed out from an overdose of prescription pills. Only that argument was difficult to make stick when the medical examiner and Sylvie’s doctor testified that she had been on the same prescriptions for years and only therapeutic levels were found in her body at the time of death.

Evidence taken from Sylvie’s computer showed that in the days, and even the hours before she died, there were several hits to escort sites on her computer: -Dec. 1, 2010 – 2 hits at 6:50 p.m. -Dec. 8, 2010 – 2 hits at 6:40 p.m. -Dec. 8  2010 – 1 hit at 8:40 p.m.

A hand-written letter that was presented as evidence in court showed Brooks’ apologizing to Sylvie for hiring prostitutes in the “past.”  In part, it read: “Dear Sylvie, I am so sorry that I showed you my past on the e-mail the other night.  I wasn’t thinking how that would affect you.  I hope you can believe me when I say that you are so smart, beautiful and funny, and I don’t think about anyone else but you.”

Dozens of text messages that Sylvie sent to friends were presented in court:

Text from Sylvie Cachay to friend – Nov. 24, 2010 “I know I’m doing the right thing … [but it's] hard when I need and want to take care of him.  I don’t even think he loved me.”

Text from Sylvie Cachay to friend – Nov. 25, 2010 “I’m in a sich … letting him come over … so mad at myself … I started crying.”

Those were just two of many text messages that Sylvie sent to one of her very best friends in the days and months before their relationship ended for good on December 9, 2010.

Hindsight is always 20/20 and breakups are never easy.  As I sat through the trial of Nicholas Brooks however, it was hard for me not to think: Had Sylvie Cachay shared with me the details of her relationship, I would have urged her to come with me to court to obtain an order of protection. There was testimony that Brooks had an explosive temper, that he had threatened Sylvie’s life, refused to leave her apartment, refused to return her house keys, that he called her insulting names, that he used her credit cards without her permission, … And the list goes on.  Sylvie discussed with her friends changing the locks to her apartment just a few days before her death….

Sometimes an order of protection is a necessary step to take in order to safely turn the corner and make the important decision to remove from a toxic, dangerous, and volatile person from your life.   There is nothing to be ashamed of in having to take this step to protect your safety and well- being.

New York Divorce Lawyer Handling High Net Worth Divorces

As a New York High Net Worth Divorce Lawyer who previously worked for famed divorce lawyer Raoul Felder, Esq. and New York Supreme Court justice,  Hon. Laura Drager, I have experience handling divorces where substantial assets are involved and reputations at stake.

Maintaining two households is always more expensive than the cost of maintaining one.   Only the wealthiest of divorcing couples can afford to maintain the same standard of living post-divorce that they were able to enjoy divorce in one household.  With this in mind, the cost of the divorce itself and any potential divorce litigation should be carefully analyzed, both over the short-term and the long-term.

Important Factors to Consider in High Net Worth Divorce Cases

As a primary consideration in any divorce, especially one in which substantial assets are involved, is an educated and realistic estimate regarding the costs associated with achieving your legal objectives; both financially and with regard to child custody matters.  For any parent,  maximum parenting time with your children is of the utmost importance.

I strongly believe that the first task in the high-asset divorce case is to make sure that cost do not spiral out of control.  Just because you or your spouse have maintained a comfortable lifestyle does not mean that your money should be squandered away by endless, expert fees, counsel fees, appraisals and court appearances.  Your divorce lawyer should not forget that at the end of the day the money that you and your spouse spend on your divorce will not be available for your children’s college, your son’s barmitzvah, your daughter’s wedding, and your retirement.

I view it as my job to make sure that my client’s and their spouse  are not pulled off a financial cliff after having become lost in the uncertainty and tension of a moment that divorce actions so often involve. The lawyer you choose should be just as aware.  As the client you are entitled to feel a sense of comfort and confidence throughout the divorce process.  Yes, it is emotional, and sometimes complicated, but divorce is common place in today’s world and there is ample case law to guide lawyers and courts in just about any circumstances.

No matter how wealthy you are, it is not necessary to reinvent the wheel, or let your divorce lawyer pretend that a special wheel had to be invented to suit your case.   If your divorce lawyer cannot satisfactorily explain to you the financial concepts that your case presents, then you should ask yourself if that divorce lawyer has mastered them sufficiently enough to handle your case.

Some of the financial  issues which may arise in these high net worth cases include the valuation and distribution of:

  • Professional licenses or degrees held (which offer increased earning potential or “enhanced earning capacity”)
  • Professional practices (valuation of the spouse’s partnership)
  • Family businesses, closely held businesses or complicated business transactions
  • Retirement assets such as stock options, IRAs, 401(k) accounts and pensions
  • Trusts
  • Real estate / real property

Perhaps the most important document submitted to the court in a New York matrimonial proceeding  the sworn  Statement of Net Worth, which requires your most recent tax returns.  It must be filed with the court on the date of your Preliminary Conference no matter how much or how little money you have. It has to be sworn to under penalty of perjury, no matter how aggressively you have managed your financial dealings.   And it has to be certified as not false by your divorce attorney.  If you or your spouse cannot file a sworn Statement of Net Worth, you should settle your divorce case immediately.  A judge is an obligated reporter to the IRS. Among other financial information, your sworn  Statement of Net Worth provides the court a snapshot as to how your family lived day-to-day.

Because I have worked for a New York Supreme Court matrimonial judge and the famed divorce lawyer Raoul Felder, Esq., I already have an educated estimate of the client’s monthly household budget items such as food, daycare, mortgage and clothing. That enables my educated eye to zoom into an adversary’s glaring exaggeration like a heat-seeking missile.  Your lawyer should have the appropriate epxerience to do the same.

One of the most important things that  your sworn  Statement of Net Worth provides the court presiding over your divorce is an estimate of the client’s needs are and/or what the client can afford to pay in maintenance (alimony) or child support?  Is the salary fixed, or is there a discretionary bonus? Why are the credit card expenses so high? Is the family living above its means or within its means? How will the cash flow projections be impacted when there are two separate households to maintain?   The cost of maintaining two households, especially when considering issues of child support and spousal support, can be exponentially more financially burdensome than the cost of a single-family household. These are all important considerations that should be discussed with your attorney before you sit down at the negotiations table.

It’s your first divorce. Not your lawyer’s (at least it shouldn’t be if you have substantial assets at stake).  Your lawyer should fully expect the monied spouse to try to hide resources or minimize the value of the marital assets. Your lawyer should also expect the non-monied spouse to be suspicious and fearful. In the medical profession there is a useful process known as the differential diagnosis, in which various hypotheses are ruled out. The court will likely appoint neutral evaluators and you may also need your lawyer to assemble if necessary a team of investigators and forensic experts..

Each member of your legal team should be knowledgeable and savvy. While no two cases are identical, New York is a big city, in many ways it’s a small city. Most of the experts (forensic accountants, or forensic psychologists) that I would recommend in your divorce action are regularly appointed by the courts in other cases. Your lawyer handling your case should have experience working with many of them and suggest the right fit for your circumstances and  advocate for the appointment of a neutral whose background and experience is the right fit for your case.

Your divorce lawyer should also be experienced and thorough in obtaining and reviewing financial documents. I have found many a needle in the haystack of bank records and credit card statements. The real estate assets can be a very fertile ground to pursue an advantageous settlement. Like Catch 22, the banks and other lenders are frequently more eager to loan money to the people who appear to need it the least. That phenomenon has been known to tempt real estate investors to make sworn statements on their loan applications that come back to bite them in embarrassing places when they are getting a divorce. In one case, the spouse had not provided the bank with the same tax return that had been filed with the Internal Revenue Service. Here too, experience counts.

In the courtroom, your lawyer should  bring to the table experience in reading financial statements, obtaining useful expert reports, and cross examining financial experts. One challenge is to correctly identify and value the assets and cash flow. That requires an understanding of New York divorce law, forensic accounting and tax law. For example, New York is the only jurisdiction that identifies enhanced earning ability — such as the license to practice medicine — as an asset in addition to contributing to the earnings stream. Advocacy is then required to connect, or limit the connection, of that asset to the distribution of the marital estate.

The distinction between “separate property” and “marital property” is an important one. Let’s say that your spouse has inherited a family business and then spent the last 10 years of your marriage working there. What is the business worth and what is your share? The advocacy required to resolve that issue in your favor requires knowledge of valuation methods  and New York law. Your divorce lawyer should be able to explain to you the “build-up method” and when to use it as opposed to the “excess earnings method” of valuation. Again, the quality of your attorney’s background and experience makes a difference.

Corporate executives frequently have employee stock options, which are granted before they vest and might be exercised after the divorce action was commenced. The forensic economic experts often use the Black Scholes method to value these assets. The valuation of the unexercised stock option in the divorce case can be a complicated process. Part of the value may be separate property, and the part of the value that is marital property may not have a sufficient nexus to the marital partnership.

An important asset in every marital estate is the marital residence. Your divorce lawyer should be sufficiently conversant in the principles of real property valuation to dissect the real estate expert’s report if necessary.

Retirement assets are often a major component of the marital estate. Often it’s not rocket science to obtain the information required to decide how to carve up the retirement assets. In general, in marriages in which there are children of the marriage, each spouse will receive half of the returement assets earned during each year of the marriage.

Although it is your case and your life,  you should feel as if your lawyer is in it with you every step of the way.  Your divorce lawyer needs to know first where to look, and then what documents to obtain. Important strategic decisions then need to be made on your behalf. Divorce lawyers sometimes mistakenly equate post-tax asset values with retirement asset values, which is like comparing apples to oranges. Or the divorce lawyer might not think to look closely enough at what the tax basis of the retirement assets is, because retirement horizon may be very far off.   But taxes, like death, are a certainty, even for retirement assets. Great care and attention to detail should be paid  to these issues at all times.

Contact a Manhattan Divorce Property Attorney

To schedule an initial consultation, please call my New York office (646.421.6505)  or email me (peyton@apbryantesq.com).

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Child Custody Primer

Child custody is the most emotionally charged aspect of getting a divorce.

Under New York Law, the “best interest of the children” is the legal standard used to determine which spouse should have primary physical custody of the children.  There are two forms of custody that courts consider; legal and physical.

Legal custody refers to who will make important decisions for your children with regard to their health, education, activities and religious upbringing. Legal custody can be granted to one or both parents. Parents can also be in control of certain “zones” of decision making, for example the mother makes final medical decisions on behalf of the children and the father makes final educational decisions on behalf of the children.

Physical custody refers to where the actually child resides most of the time. One parent may have physical custody, but only joint legal custody.. It is possible for both parents to have physical custody, which means the children will split their time and reside with each parent for an agreed and equal amount of time.   The non-custodial parent will have visitation or “parenting time” with the children.

 

Every couple is at risk of divorce, except maybe this one.

Despite  being a divorce lawyer, I still believe in fairy tale weddings and everlasting love  (with a prenup of course!).  Nonetheless, it is a rare couple whom I can say with absolute certainty has a negligible chance of ever being divorced and I would say don’t bother with a prenup.    This  Valentine’s Day brings us that rare couple: Ramona Rizzo  an Joseph Sclafani.  The “Mob Wives” diva  Ramona Rizzo is engaged to  Joseph “Joe Boy” Sclafani — a reputed Gambino family soldier currently residing at the Metropolitan Detention Center located in Brooklyn.   Apparently they have known each other since they were kids. The New York Post reported last year that Sclafani was charged with coordinating a cocaine-trafficking scheme. He also faced earlier charges of running a syndicate that sold Staten Island  grown marijauna.  

Romantic Rizzo’s fiance faces more than a decade in prison, but she’s planning a 500-guest June wedding.   This may be the first couple in history to have no fights about the wedding preparation ….. because she’s not expecting the groom to be present!  According to the New York Post, the union will bring together Rizzo, a Bonanno family descendant, with an alleged Gambino man.  Now that’s a power couple!   I thought Id never say this about any couple…. but the chances of this couple divorcing are zero…. as long as the families stay out of it. 

The New York Post reported Rizzo as stating, “Maybe the key to a happy marriage is not having a husband in your face all the time.”  I couldn’t agree more. 

Click below to reach the New York Post  article.

http://www.nypost.com/p/pagesix/rizzo_in_new_mob_wedding_88lhIESYbQSKsNZm7h4L1I

An Infertile Mess. What not to do when you can’t conceive.

The New York Post…. which I have affectionately dubbed “The People’s Paper” published an article on February 2, 2013 , titled, “Mommy wannabe cries assault after pregnancy romp with bro-in-law: suit

Only in New York will you find two cheating spouses try to wiggle their way out of an expensive divorce with a more elaborate and ridiculous story than this.   A Manhattan lawyer,Ted McCullough, claims that he only had sex his sister-in-law, Adrienne Mesko, because her own husband couldn’t get her pregnant. Now that these two louses have been caught, it’s a “CYA” dogfight like no other. McCullough’s wife filed for divorce and Mesko falsely accused him of sexual assault.  As if the whole sordid mess wasn’t preposterous enough (I mean really, who sleeps with their sister’s husband?), Ted McCullough, the randy attorney in question, filed a law suit against his sister-in-law in Manhattan Supreme Court last week seeking $7 million in damages and accusing Mesko of defamation, malicious prosecution and intentional infliction of emotional distress.  It’s of no surprise that these two folks already having dueling orders of protection Dutchess County Family Court.  

So while I’m sure the faithful  spouses/victims of these two idiots would rather put this behind whole embarrassing affair them one way or another, instead the whole sordid affair, right down to the nitty gritty detail is now laid to bare in court papers accessible to the public; “she pulled her naked legs up in a crab-like position to increase the chances of conception.   McCullough claims the accusations by his sister-in-law  nearly ruined his marriage, causing his wife, Deirdre Chiaramonte, a Manhattan veterinarian, to file for divorce.  Of course his own behavior have nothing to do with it!

Mesko claims in the article that she and her sister are still on speaking terms.  Frankly, if she were my sister, I’d want to kick her. 

 McCullough, who was formerly a Marine, describes his Manhattan law firm, McCullough, Ginsberg, Montano & Partners in court papers as a “highly successful” national practice in commercial, contract and environmental litigation.

Ms. Chiaramonte, if you need a divorce lawyer, I’d be happy to represent you.

Only in New York kids….. only in New York.

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A recent win by Anne Peyton Bryant, Esq.: Issues you may face when your spouse is residing in a foreign country and you want to file for divorce?

SM v AM

[*1] SM v AM 2011 NY Slip Op 51681(U) Decided on September 14, 2011 Supreme Court, New York County Kaplan, 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 14, 2011
Supreme Court, New York County

SM, Plaintiff,

against

AM, Defendant.

305927/2011

Anne Peyton Bryant, Esq. for the plaintiff

Rhonda Ores, Esq., Fox Rothschild LLP, for the defendant

Deborah A. Kaplan, J.

Recitation as required by CPLR 2219(a), of the papers considered in review of this Order to Show Cause:

PapersNumbered

Defendant’s Order to Show Cause and exhibits1, 2 EXHS A-M

Plaintiff’s Opposition and exhibits1,2EXHS A-S

Defendant’s Reply and exhibits1-3EXHS N-S

The defendant-wife (hereinafter “wife”) moves pursuant to CPLR §3211(a)(4), for an order dismissing and/or staying this action for divorce and custody based upon another divorce and custody action pending in France; pursuant to CPLR §3211(a)(2), for an order dismissing this divorce and custody action on the grounds that this court lacks subject matter jurisdiction over the custody of the parties’ child because the child’s home state is France; and for dismissal [*2]of the divorce action on the grounds that the plaintiff-husband (hereinafter “husband”) has not met the residency requirements for jurisdiction in New York. The husband opposes the motion.

Background

The parties were married in Paris, France on September 18, 2007. Both are British residents and were residents of France at the time of the marriage. Prior to marrying, they entered into a prenuptial agreement in France on September 10, 2007. In September 2008, the parties moved from Paris to New York, after the husband was offered the position of art director at Vogue Magazine. The wife, who had been working as a manager of communications for a fashion company in Paris, resigned that position in order to go to New York with the husband. Shortly after moving to New York, the wife obtained a job at Prada as Vice President of Public Relations. The husband lost his job at Vogue in October 2009.

The wife’s daughter from a previous relationship, now age 9, lived with the parties during their marriage. There is one child of this marriage, a boy, born on May 26, 2010. On June 25, 2010, the wife moved from New York to Paris with the parties’ child and her older daughter.

The wife filed a divorce action in France on March 22, 2011; that case is scheduled to be heard on September 13, 2011. On May 19, 2011, the husband served the wife with a summons and verified complaint in this action for divorce, which had been filed on April 26, 2011. In the instant action, the husband seeks custody of the parties’ child, child support and equitable distribution of all marital property and declaring the rights of the parties to their separate property.

Parties’ Contentions

It is the wife’s contention that the husband has never expressed an interest in their child from the time she announced that she was pregnant. She claims the husband abandoned her in New York, moving into another apartment while she was pregnant. She notes further that while the husband saw the child in July 2010 in France, he has made no effort to see or visit him since. She states that she has no objection to the husband having contact with his son, but given his behavior since she told him she was pregnant, and his voluntary absence from the child’s life thus far, his introduction to the child is a delicate matter and needs to be addressed in France where the child lives.

The husband contends that the wife fraudulently obtained a passport for the parties’ child by asking him to sign some paperwork and then having his signature notarized outside of his presence. He claims that she then took the child to live in France without his knowledge or consent. Further, the husband asserts that since the wife withdrew all of the money in their joint account, amounting to $106,308.07, he did not have the financial means to pursue her when she left New York. The husband denies that he did not want to be a father to his son and asserts that he has made efforts to see and visit the child.

Regarding the divorce action in France, the husband states that he did not acquiesce to the jurisdiction of the French court; he never agreed to proceed with the divorce in France; and, to date, he has not been properly served pursuant to the Hague Convention. He acknowledges that the parties were married in France and that they entered into a prenuptial agreement there, but he notes that the parties were not represented by counsel and the agreement was not negotiated over time. Further, he points out that neither he nor the wife is a French citizen and he does not speak French. [*3]

The wife denies that she obtained the child’s passport by fraudulent means or that she relocated to Paris without the husband’s knowledge or consent. With respect to the husband’s allegations regarding the child’s passport, the wife points out that the husband acknowledges that he signed paperwork in connection with the child at the wife’s request. As to moving to France, the wife refers to the husband’s own affidavit wherein he says that the wife told him that she was planning to move back to France, but that he didn’t believe her. She argues further that the husband’s allegations are belied also by the emails he sent to the wife on the day she left New York and upon her arrival in Paris. Regarding the husband’s claim that he has not been properly served in the French divorce action, the wife annexes to her papers an affirmation from her attorney in France stating that the husband was properly served. In addition, she notes that the husband has not asserted any objection to France’s jurisdiction in the French court.

Turning to the funds in the parties’ joint bank account. The wife states that she did not withdraw those funds and that the bank account had a zero balance by the time she closed it in January, 2010. She notes, in addition, that the only source of the funds in the account were her earnings and that she paid all of the parties’ expenses after the husband lost his job. Finally, she argues that even if the husband believes he is entitled to some portion of the earnings, he ignores the fact that he has not paid any child support to her since the child’s birth.

Discussion

Preliminarily, the court notes that while the wife moves for orders either staying or dismissing of this action pursuant to CPLR §3211(a)(4), that section permits a dismissal or a stay of an action only when the other action is pending in a New York state court, a sister-state court or any federal court. It does not allow for a dismissal in favor of a foreign country court. Rather, when a foreign country court is involved, the court must look to CPLR §220l to determine if a stay is appropriate. Pursuant to CPLR §2201, “[e]xcept where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” Granting a stay of an action rests with in the court’s discretion, (see, Britt v International Bus Servs, 255 AD2d 143, 144 [1st Dept 1998]) and generally, “only where the decision in one action will determine all the questions in the other action, and the judgment on one trial will dispose of the controversy in both, is a stay justified; this requires a complete identity of the parties, the causes of action and the judgment sought.” (952 Associates LLC v Palmer, 52 AD3d 236[1st Dept 2008]). While the question of which action was filed first must be taken into consideration by the court, the fact that an action was filed first in time will not necessarily entitle the movant to a stay. (see, e.g., ACE Fire Underwriters Ins Co v ITT Industries, Inc., 44 AD3d 404 [1st Dept 2007]; Matter of Propulsora Ixtapa Sur, S.A. DE C.V. v Omni Hotels Franchising Corp, 211 AD2d 546 [1st Dept 1995]; Centenaro v Poliero, 24 Misc 3d 1207(a) [Supreme Court, Queens County 2009]; Rosenberg v Slotchin, 181 AD 137 [3rd Dept 1917]). However, where full and adequate relief may be obtained in each of two pending actions, the action first commenced generally should be allowed to proceed to judgment and the later action stayed. (see, e.g., Mazzariello v Walsh, 66 NYS2d 476 [Sup 1946]; Lupoli v Lupoli, 205 AD2d 595 [2nd Dept 1994]).

Under the circumstances of this case, the court finds that a stay pending the resolution of the custody action in France is warranted. The French action will address all of the custody and related issues raised in both actions and the judgment in the French court will resolve the custody controversy in both actions. Significant also is the fact that witnesses that might be [*4]called in connection to the custody issue, e.g., the child’s pediatrician, nanny and members of the wife’s family, are in France.

Moreover, the court looks to Article 5-A of the Domestic Relations Law, also known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which states that New York courts have “jurisdiction to make an initial child custody determination only if:

(a) this state is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. . . ” A child’s “home state” is defined as the state where a child has lived with a parent for at least six consecutive months immediately before commencement of a child custody proceeding. (DRL § 75-a[5]). If a parent wrongfully removes a child from a state, however, the time following the removal is considered a temporary absence. (see, Felty v Felty 66 AD3d 64 [2nd Dept 2009]; Matter of Krymko v Krymko, 32 AD3d 941 [2nd Dept 2006]; Arnold v Harari, 4 AD3d 644 [3rd Dept 2004]); see also, GS v AS. 31 Misc 3d 1233(a) [Supreme Court New York County 2011]).

Here, the husband argues that the wife obtained a passport for the parties’ child in a fraudulent manner, and unilaterally and permanently removed him to a foreign jurisdiction. Such conduct, he asserts, should not be rewarded, and, accordingly, this court should adjudicate the custody issue.

While this court makes no finding with respect to the specifics of how the child’s passport was obtained, it is clear from the evidence proffered by both parties that the husband was aware of the fact that the wife was leaving New York and going to France with the child. First, the husband acknowledges that the wife requested that he sign some papers in connection to the child and that he did so. Further support for the conclusion that the husband was aware of the wife’s plan to move to France with the child is the fact that he avers that the wife frequently “threatened me with her plans’ to leave New York even before [the child's] birth.” While he claims not to have taken the wife’s statements seriously, he offers no credible explanation as to why he did not believe her stated intentions to be true, especially since France is the country where the parties had been married and resided and where the wife had been gainfully employed. That the husband knew that the wife intended to go to France with the child is evidenced also by the emails he sent to her, first asking her what time her flight was scheduled and telling her they would “speak later when you’re settled,” and then later, upon their arrival in France, emailing her to ask “How was [the child's] flight?” Notable, too, is the fact that, although the wife left with the child in June 2010 and has been living with him in France since that time, the husband did not file a divorce action in New York until April 26, 2011, after the wife had filed an action in France. Although the husband attributes the delay in filing to the fact that he could not afford an attorney because he is unemployed and the wife took all of the parties’ savings, since he remains unemployed, it is unclear what has changed and why he now was able to file this action.

Accordingly, the court finds that it does not have jurisdiction over custody of the parties’ son pursuant to the UCCJEA.

Based on the foregoing the court grants the wife’s application to stay the custody proceedings in this court pending the resolution of the French action.

However, the court declines to grant a stay of the husband’s action for a judgment of divorce and for equitable distribution. [*5]

Contrary to the wife’s assertions, the court finds that the husband has met the durational residency requirements set forth in DRL §230. Those requirements were enacted to discourage the use of this state’s courts by spouses with no substantial ties to New York, “who would flock here for the sole purpose of obtaining matrimonial relief unavailable in states that had substantial interests in the marital relationship. . . .” ( Unanue v Unanue, 141 AD2d 31, 40 [2nd Dept 1988]; see also, BD v AD, 26 Misc 3d 1215(a) [Supreme Court, New York County 2009]; Kramer v Paronen, 13 Misc 3d 1235(a) [Supreme Court, New York County 2006]). Whether a plaintiff satisfies the residency requirement of DRL §230 is a substantive element of the cause of action that must be alleged and proven by the plaintiff. (Lacks v Lacks, 41 NY2d 71 [1976]). In order to establish residency for purposes of DRL §230, there must be proof that a person dwelled in New York continuously for the statutory period immediately prior to the commencement of an action for divorce or proof that a person was continuously domiciled in New York for that period. (Esser v Esser, 277 AD2d 926 [4th Dept 2000]; Bourbon v Bourbon, 259 AD2d 720 [2nd Dept 1999]; Unanue v Unanue, supra; Capdevilla v Capdevilla, 149 AD2d 312 [1st Dept 1989]; Wittich v Wittich, 210 AD2d138 [1st Dept 1994]).

A determination of whether a party has established residency — as opposed to domicile — depends upon “whether [the party] has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year” (Wittich v Wittich supra at 139, citing Antone v General Motors Corp., 64 NY2d 20, 30 [1984]). In other words, if a party establishes that he or she has lived in New York with a “substantial degree of continuity and permanence,” the residency branch of the test is met. Wittich, supra. The fact that a person has more than one residence does not compel a different result; if there is proof that the party maintained a residence in New York and returned to that residence with regularity, the durational residency requirement will be satisfied. (Davis v Davis, 144 AD2d 621 [2nd Dept 1988]; see also, Jindal v Jindal, 54 AD3d 605 [1st Dept 2008] ).

Domicile, on the other hand, is defined as the place where the parties lived together as husband and wife with the intention of making it their fixed and permanent home,( see, Esser v Esser, supra; Cocron v. Cocron, 84 Misc 2d 335 [Supreme Court, Kings County 1975]) and is controlled by the subjective intent of the party claiming domicile. Guedes v Guedes, 45 AD3d 533 [2nd Dept 2007]; Unanue, supra). Once domicile is established in New York, it is not lost by a party’s temporary absences from the state, but is presumed to continue. Therefore, where the evidence establishes the existence of a New York domicile, the burden of proving a change of domicile is on the party alleging that such a change has occurred. Unanue, supra.

In order to satisfy DRL Section 230 on a domicile basis, evidence of the following circumstances is relevant: “a place of residence in the state of alleged domicile; length of time of residence, location of schools attended by the children; leasing, buying negotiating for or a building a home; declarations, oral or written, made at the time of, or in connection with, a move which shows intent that a residence shall be permanent; place of worship and club memberships; place of performance of civic duties, such as voting, jury duty, payment of personal income taxes; place of bank account; jurisdiction where automobile is registered.” Unanue, supra at 40.

Here, there can be no doubt that the parties – if they weren’t New York domiciliaries – certainly resided in New York as husband and wife. They moved to New York in 2008 so that the husband could accept a position as an art director and thereafter, they lived and worked here and sent the wife’s daughter to private school here. To date, the husband, notwithstanding his [*6]extended trips to Europe, resides in New York; he maintains a residence here and returns to it with frequency and regularity. Indeed, there is no evidence that he has any other residence.

Moreover, in denying the stay with respect to the husband’s application for a judgment of divorce and equitable distribution of marital property, the court notes that when the parties entered into a prenuptial agreement in France, neither was a French citizen. Nor does the husband, who does not speak French, currently reside in France. Notable also is the fact that the wife’s divorce petition does not appear to address the question of the distribution of marital assets, relief sought by the husband in his action. Specifically, the husband seeks the distribution of funds allegedly held jointly by the parties in a Chase Manhattan Bank account when they lived together in New York. Finally, that the wife’s action was filed prior to the husband’s, does not require that the application for a stay of the instant action be granted. The husband’s action was filed shortly after the wife’s, and, in any event, as discussed above, the question of who filed first is not dispositive when considering whether or not a stay is warranted.

Based on the foregoing, the court will retain jurisdiction over the judgment of divorce and the husband’s application for equitable distribution.

Therefore, upon the facts presented and the applicable law, it is hereby:

ORDERED, that the wife’s application for a stay of the New York divorce action is granted to the extent of staying the custody and custody related issues pending a resolution of the French action; and it is further

ORDERED, that the wife’s application for a stay of the New York divorce action is denied to the extent that this court will retain jurisdiction over the husband’s application for a judgment of divorce and for the equitable distribution of marital property; and it is further

ORDERED, that counsel for the wife is directed to serve the within order, with Notice of Entry, within ten (10) days of entry, upon counsel for the husband; and it is further

ORDERED, that the parties shall appear for a Preliminary Conference on November 16, 2011, in Part 20, New York State Supreme Court, 60 Centre Street, Room 540, New York, New York.

This constitutes the decision and order of the court. All further requested relief not specifically granted is denied.

ENTER

_________________________________

HON. DEBORAH A. KAPLAN

J.S.C.

Osha v Osha 2012 NY Slip Op 08630 Decided on December 13, 2012 Appellate Division, First Department

Osha v Osha 2012 NY Slip Op 08630 Decided on December 13, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

 

This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 13, 2012 Gonzalez, P.J., Mazzarelli, Acosta, Román, JJ. 8825 301110/12

Jay Osha, Plaintiff-Respondent,
v
Olurotimi Osha, Defendant-Appellant.

Brian D. Perskin, Brooklyn, for appellant. Anne Peyton Bryant, New York, for respondent.

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered July 9, 2012, which, to the extent appealed from as limited by the briefs, granted defendant husband’s motion for pendente lite relief to the extent of awarding him $500 per month in temporary maintenance for a period of six months, with retroactive temporary maintenance of $50 per month, and directing plaintiff wife to pay interim counsel fees of $10,000 directly to defendant’s attorney, unanimously affirmed, without costs.

There is no basis for disturbing the court’s award of temporary maintenance. In calculating the award, the court correctly applied the formula set forth in Domestic Relations Law § 236(B)(5-a)(c)(1) (see Khaira v Khaira, 93 AD3d 194, 197 [1st Dept 2012]). The court considered numerous statutory factors and found that the statutory presumptive or guideline amount of temporary maintenance of $1,959.86 per month was “unjust or inappropriate” (Domestic Relations Law § 236[B][5-a][e][1]). The court set forth the amount of the unadjusted presumptive award, the factors it considered, and the reasons that it adjusted the presumptive award (§ 236[B][5-a][e][2]). The court providently exercised its discretion in imputing gross annual income to defendant in the amount of $90,000, given defendant’s past work experience and educational background (see Hickland v Hickland, 39 NY2d 1, 5 [1976], cert denied 429 US 941 [1976]).

The court’s award of $10,000 to defendant’s attorney for interim counsel fees, rather than the $25,000 defendant requested, was a provident exercise of discretion (see Domestic Relations Law § 237[a]). Although defendant is the less monied spouse, this divorce action is unlikely to [*2]be prolonged, as the parties have little marital assets and no children.

We have considered defendant’s remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 13, 2012

CLERK

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