In a recent decision by the Appellate Division, Second Department, in O’Connor-Gang v. Munoz, --- A.D.3d ---, --- N.Y.S.3d --- (2nd Dept. 2016)(2016 WL 5928795)(Oct. 12, 2016), E. Michael Kosan and Shari Paley of FBK obtained an affirmance of a Family Court determination that our client is entitled to an upward modification of her former Husband’s obligation to pay child support. The Court cited the Father’s significant increase in income, the increase in costs relating to the child of the parties, and the Father’s failure to make substantial non-economic contributions contemplated by parties’ stipulation, as the bases for the upward modification.

For more information on this case or any other child support matter, please contact either Mike (This email address is being protected from spambots. You need JavaScript enabled to view it. ), Shari(This email address is being protected from spambots. You need JavaScript enabled to view it. ) or any other FBK attorney at 914-997-9070.

Fredman Baken & Kosan is a Westchester, New York Divorce Law Firm dedicated to providing objective and experienced advice to assist you in making informed decisions, during a time when you may be feeling confused and overwhelmed, so that your family can transition from uncertainty to security. Call (914) 997 9070 today.

 

To start a divorce action, you must file a Summons with Notice or a Summons with a Verified Complaint (“Pleadings”). After filing, your spouse must be served with the Pleadings within 120 days of the filing in one of the following ways: (1) personal service; (2) service on a person of suitable age and discretion at the spouse’s residence or place of business; (3) service on an agent; (4) “nail and mail”; or, if all else fails, (5) service “in such manner as the court, upon motion without notice, directs.” N.Y. CPLR §308.

What happens when you cannot find your spouse in order to provide formal notice to him/her of the divorce action? That exact situation arose in the recent case of Baidoo v. BloodDzraku, where the New York Supreme Court (New York County) under the discretion given it by CPLR § 308(5) allowed the Plaintiff to serve her husband via private Facebook message when all other traditional methods had failed. Baidoo v. Blood-Dzraku, 2015 NY Slip Op 25096 (N.Y. Sup. Ct. March 27, 2015).

In Baidoo, Justice Matthew Cooper permitted Ellanora Baidoo, a twenty-six-year-old nurse, to serve her husband with divorce papers via private Facebook message. Baidoo and Victor Sena Blood-Dzraku were married in 2009 in a civil ceremony, but the marriage fell apart when Blood-Dzraku refused to go through with the subsequent promised Ghanaian wedding ceremony. As a result, the marriage was never consummated and the parties never lived together. After the fallout, Blood-Dzraku kept in touch with Baidoo only via phone and Facebook. He had no fixed address after vacating his apartment in 2011, never listed a forwarding address with the post office and had no place of employment. His prepaid cell phone was not linked to any billing address.

With no means by which to serve Blood-Dzraku personally and with no discoverable place of business or residence at which to effectuate service, Baidoo, through her attorney, filed a motion with the court under N.Y. CPLR § 308(5) to be allowed to serve via a court-directed alternative method. After considering the circumstances, Justice Cooper granted the motion, stating that Baidoo’s attorney may “serve Defendant with the divorce summons using a private message through [Baidoo’s] Facebook” and that the transmitted message must be “repeated by Plaintiff’s attorney to Defendant once a week for three consecutive weeks or until acknowledged.” (Baidoo at 5). After the first message with the Summons was sent via Facebook, the court ordered that Baidoo and her attorney must also “call and text message defendant to inform him that the summons for divorce has been sent to him via Facebook.” (Baidoo at 5).

While service via Facebook message is a novel approach, alternative methods of service under CPLR § 308(5) allow courts to create methods of service that take advantage of new technologies. As Justice Cooper noted:

As recently as ten years ago, it was considered a cutting edge development in civil practice for a court to allow the service of a summons by email. . . . [W]hile the legislature has yet to make email a statutorily authorized method for the service of process, court are now routinely permitting it as a form of alternate service.

(Baidoo at 1). CPLR § 308(5) is designed for exactly this sort of situation – when conventional methods fail, the court must use all of the possibilities at its disposal to craft a new means by which to serve divorce papers to ensure that formal notice of the lawsuit is received and to protect against such lawsuits being frustrated by evaders. Social media is woven into all facets of modern life and the court recognized that if Blood-Dzraku was going to utilize Facebook as his main means of communication, then there was no reason not to take advantage of Facebook as a means by which to notify him.

In practical terms, this is an option that will be available only in a very limited number of cases. By no means does this ruling suggest that courts will suddenly start to allow Facebook messages as a common means by which to serve notice of divorce actions, at least not yet. It is likely that service via Facebook, or its technological successor, will eventually become as commonplace as service via email. In the meantime, if you’re facing a situation where the person you need to serve has no billing address, work address, or home address, then asking the judge to allow service via Facebook message is a valid option. Evaders beware.

Fredman Baken & Kosan is a Westchester, New York Divorce Law Firm dedicated to providing objective and experienced advice to assist you in making informed decisions, during a time when you may be feeling confused and overwhelmed, so that your family can transition from uncertainty to security. Call (914) 997 9070 today.

This article was originally written by Linda Olup, Esq, a Minnesota attorney who practices in Edina MN, and is used, with gratitude, by permission of the author, with a little editing by Neil A. Fredman.

Sterling v. Stiviano - Gold Diggers Need Not Shake in their Booties

In March 2015 Rochelle Sterling, as the wife of Donald Sterling, sued V. Stiviano alleging that Ms. Stiviano had received community property in excess of $2.6 million without Mrs. Sterling’s knowledge and consent.  She sought the return of what Ms. Stiviano had received from Mr. Sterling.  Ms. Stiviano declined to return the assets and a lawsuit followed.

On April 14, 2015, Judge Richard Fruin Jr. of the California Superior Court ordered Ms. Stiviano to return approximately $2.6 million in assets, including a $1.8 million home, a Ferrari, a Bentley and other vehicles worth more than $800,000, as well as cash gifts that Mr. Sterling gave to his 32-year-old companion. V. Stiviano asserts that she will file an appeal.

The important part of this order is that the money is to be returned to the Sterling Family Trust, not to Mrs. Sterling as the wife because Rochelle and Donald Sterling do not personally own the money that was used to acquire the assets given to Ms. Stiviano.  Their Family Trust owned the funds used to purchase the items held by or given to Ms. Stiviano.  The Sterlings were both Trustees of the Family Trust and the sole beneficiaries of the Trust, but they do not own the assets of the Trust. 

Family Trusts, such as the one established by the Sterlings, are devices used to legitimately avoid taxes that would substantially diminish the value of the estate.  Donald and Rochelle are the settlors and trustees of the Sterling Family Trust and are the “sole vested current beneficiaries of the Trust”.  Trustees are obligated to maximize the value of trust assets.

In 2014, to facilitate a sale of the LA Clippers, Mrs. Sterling became the sole Trustee and thereby acquired control of the Sterling Family Trust under the unambiguous provision of that Trust which allows for the removal of a Trustee who has been declared incapacitated by two experts.  In the ultimate act of “girl power” Mrs. Sterling, as the sole Trustee of the Sterling Family Trust, sued Ms. Stiviano.  Having effectively disposed of her husband as a Trustee, she was clear to pursue the lawsuit as the remaining Trustee.

The question arises as to whether illicit companions should be concerned by this ruling?  If there is an appeal the ending to the story has yet to be written, as an appellate court will determine whether Judge Fruin interpreted the law correctly.

Does the ruling have an impact for other scorned spouses across the United States?  As a practical matter, probably not. Most Gold Diggers are safe and need not shake in their booties. New York law, like California or Minnesota, Ms. Olup practices, allows a disgruntled spouse to recover ½ (or possibly more) of the “wasted” assets that can be proven to have been improperly dissipated.  The recovery is usually against the remaining marital estate, not the “gold digger” her (or him) self.  There are also very practical issues to deal with.

First, unlike the Sterlings most families do not have assets in excess of $2 Billion.  Second, most families do not have Family Trusts to protect the value of their wealth.

As a practical matter, if one spouse has spent money on an illicit companion, the amount of money is generally not worth pursuing in the divorce.  The amount spent on an illicit companion is dependent on the earnings and liquid assets of the parties.  Even for someone earning a high six figure income there are limits to what will be spent.  Let’s say that someone is alleged to have spent $1 million on a mistress from marital income and/or marital assets.  In most states, including New York, barring the “waste of marital assets” issue, the $1 million represents funds that would likely have been divided equally in the event of a divorce.  So the amount of money owed to the aggrieved spouse is $500,000, not $1million. 

Equate that to a marriage in which the unfaithful spouse earns $150,000 per year and spent $20,000 on the illicit companion.  One-half of the money, i.e. $10,000, belongs to the aggrieved spouse, which is what she should receive if successful in her claim. The aggrieved spouse needs to seriously consider how much time and money she wishes to spend to prove the claim to impel a judge believe to return to the funds to the marital estate.  Often the only way to return the funds to the aggrieved spouse would be to divide the marital assets and return to the aggrieved spouse the sum of $10,000 from the other spouse’s share of the assets. 

Next, the cost of paying a lawyer and forensic expert to prove what was spent on the affair is an expense the aggrieved spouse is going to have to pay, initially, with the hope that if there is proof of the claim, the Judge will order attorney fees and costs to be recovered. In the case of Donald Sterling, his companion provided a lot of the proof that allowed Rochelle Sterling to build her case.  V. Stiviano publicly discussed the gifts she received from Donald Sterling making it relatively easy to ascertain the value and extent of what she received from the family trust.  Most illicit companions are not going to be publicly bragging and most illicit companions will not be getting such substantial gifts that it is worth the media taking note.  So digging up the dirt will be expensive and may cost more than the claim is worth.

Most cases will require a forensic expert to review credit card receipts, account for all cash expenditures, and track the liquidation of assets which is a very time-consuming process. There also may be the cost of including an illicit companion in the lawsuit and the task of naming them as a third party to the divorce, something that does not often occur in no-fault divorce states. Gold diggers of either gender are not usually flush with cash and so suing them is not likely to provide a good return on investment. 

Typically the attorneys involved in such matters are high-powered and expensive.  These will not be the lawyers charging $200 per hour and working “virtually” from their homes.  The forensic experts are also expensive.

In the long run, it is not likely that an aggrieved spouse will quench the thirst for financial revenge.  Often, the “innocent” spouse “throws good money after bad”.  Few of us have the luxury afforded to Rochelle Sterling of forcing a “hussy” to account for her greed (or her husband’s wasteful behavior).  Sterling proves that it can happen, but underscores the kind of unique factual situation needed to prevail.  Any spouse considering such an endeavor needs to evaluate all of the circumstances, and, guided by an experienced, skillful practitioner, decide whether it is worth the trouble before embarking on such a voyage.

Fredman Baken & Kosan is a Westchester, New York Divorce Law Firm dedicated to providing objective and experienced advice to assist you in making informed decisions, during a time when you may be feeling confused and overwhelmed, so that your family can transition from uncertainty to security. Call (914) 997 9070 today.

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