New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available in Bookstores and online in the print edition at the Bookbaby Bookstore, Amazon Barnes & Noble, Goodreads and other online book sellers. It is also available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click on this link for more information about the contents of the book and on this link for the complete table of contents.

The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at http://www.nysdivorce.com with the permission of the New York Law Journal.

Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and the Family New York, 2d is a treatise and a procedural guide. Volume 4A of the treatise contains more than 950 pages devoted to an analysis of the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. It contains a complete discussion of the cases construing the Convention which have been decided by the United States Supreme Court, the Circuit Courts of Appeal, the District Courts, and the New York Courts.


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Sunday, March 23, 2014

Pignoloni v Gallagher, 2014 WL 642596 (2d Cir 2014) [Italy] [Consent] [Petition denied]


In Pignoloni v Gallagher, 2014 WL 642596 (2d Cir 2014) Petitioner Fabrizio Pignoloni brought a petition pursuant to the Hague Convention seeking an order directing Respondent Luise Gallagher, the mother, to return their two minor sons, E.G.P. and A.T.P. to Italy. The district court denied the petition. The Second Circuit affirmed in a summary order.

Pignoloni was an Italian citizen and Gallagher was a United States citizen. They married in New York in 2005 and shortly thereafter moved to Italy. Their elder son, E.G.P., was born in New York, while their younger son, A.T.P., was born in Italy; both children lived nearly all their lives in Italy and were citizens of both Italy and the United States. Pignoloni and Gallagher continued to live together in Italy until approximately September 2010, when they signed a separation agreement  which was “so ordered” by an Italian court. Pignoloni thereafter moved out of the family apartment. In April 2011, the parties signed a supplemental separation agreement  which was then “so-ordered” by an Italian court. The agreement gave the parties joint custody of the children and imposed certain support obligations on Pignoloni. Pignoloni agreed to pay monthly child support and spousal support, and to pay the rent on the apartment in which Gallagher and the children lived. Paragraph O of the 2011 Separation Agreement, upon which the District Court heavily relied,  provided conditions under which Gallagher might be permitted to remove the children from Italy. That paragraph read: (o) In case of non-payment of several monthly rent installments by Mr. Pignoloni resulting in lawsuits on behalf of the owners / or of non-bank-deposit for at least four months of the support for the children and for the wife and should the wife be unable, not having any type of income of her own, to support and maintain the children and herself, Mr. Pignoloni is willing to authorize the wife to return with the children to the United States to her family's home provided that the wife proves that she has found a job of her own.

On April 24, 2012, Gallagher traveled to New York with the two children. At the end of June 2012, Gallagher notified Pignoloni that she was remaining in the United States with the children. On July 3, 2012, Pignoloni filed his petition under the Hague Convention District Court held a bench trial. It found that Pignoloni had failed to meet his monthly spousal and child support and rent obligations, and that Gallagher was unable to support herself in Italy.  The District Court denied the petition on two separate bases. First, it found that the removal of the children from Italy and their retention in the United States was not wrongful, because all of the conditions set forth in Paragraph O of the 2011 Separation Agreement had been met, giving Gallagher the right to change the children's habitual residence to the United States. Second, it found Pignoloni had given his prior consent in Paragraph O to the children's removal and retention, and therefore Gallagher had a valid affirmative defense under Article 13(a) of the Hague Convention. 

On November 22, 2012, after the trial, but only two days before the District Court issued its decision, an Italian court modified the 2011 Separation Agreement and granted sole custody to Pignoloni. There was a pending motion before the Court to supplement the record with this Italian court decision. The District Court denied the petition on two separate bases: failure to make out a prima facie case and the affirmative defense of consent. Only the first basis relied on the 2011 Separation Agreement as establishing enforceable custody rights. The Italian court ruling, which altered the parents' custody rights prospectively, did not affect the analysis of their agreement in 2011. The Court stated that even if it were to grant Pignoloni's motion to supplement the record with the Italian court decision, it held that it would still affirm the District Court's decision as to consent. Accordingly, it denied Pignoloni's motion to supplement the record as moot. 

The District Court found that Gallagher had proven by a preponderance of the evidence that Pignoloni consented to the children's removal. Specifically, it found that “Paragraph O constituted Petitioner's ex ante consent to Respondent's return to the United States, consent which is not rendered inoperable by Petitioner's ex post regret that he permitted Respondent to relocate his children to the United States under the terms of the court-ordered April 2011 Separation Agreement.” On appeal, Pignoloni argued that the words “is willing to authorize” could not be read to mean that he, in fact, authorized Gallagher to remove the children. Rather, he claimed, once the conditions in Paragraph O were met, Gallagher was required to seek his authorization and the approval of the Italian court system in order to return to the United States. This was unpersuasive. The District Court found that Paragraph O was a result of negotiations in which Gallagher accepted an 80% reduction in spousal support per month in exchange for this clause. It also credited Gallagher's testimony that she perceived the clause to be a safety net in the event of Pignoloni's failure to provide spousal and child support. The District Court's credibility determinations on these issues were not clearly erroneous. Furthermore, its interpretation of the 2011 Separation Agreement—based on Italian contract law and relying on Pignoloni's legal expert—were correct. For substantially the reasons stated by the District Court, it adopted its conclusions as to Paragraph O. The Italian court decision did not change this conclusion. The District Court's holding that Paragraph O effected Pignoloni's ex ante consent applied whether or not Paragraph O could modify the actual, legally enforceable custody arrangement between the parties. That was so because, on a plain reading of the agreement, Pignoloni consented to Gallagher's removal of the children if certain conditions came to pass. The District Court determined that those conditions did indeed come to pass. That was sufficient to prove, by a preponderance of the evidence, that Pignoloni had consented. Such a finding did not conflict with the Italian court decision.       


 Accordingly it affirmed the District Court's finding that Pignoloni consented to the children's removal and retention in Paragraph O of the 2011 Separation Agreement. 


Darin v. Olivero-Huffman, --- F.3d ----, 2014 WL 1053775 (C.A.1 (Puerto Rico)) [Argentina] [Habitual Residence] [Consent] [Acquiescence] [Petition granted]


In Darin v. Olivero-Huffman, --- F.3d ----, 2014 WL 1053775 (C.A.1 (Puerto Rico)) Lisandro Jonathan Darin ("Darin") initiated  proceedings against Lua Cecilia Olivero-Huffman ("Olivero"), seeking the return of their son ("LAD") to Argentina from the United States. In 2007 the parties entered into a romantic relationship. Olivero became pregnant, and by then the parties were living together in Olivero's apartment. During the pregnancy, Darin and Olivero traveled together to the United States, returning to Argentina prior to the arrival of their son. LAD was born in Buenos Aires on April 20, 2008, and was a citizen of both the United States and Argentina. Following the birth of their son, the parties moved into a Buenos Aires apartment Darin had inherited from his father.  

      On January 31, 2011, the family traveled to the United States. Their first stop
was Orlando, Florida, where they spent a total of four days. The family then moved
on to Puerto Rico. At the outset of the trip, the plan was to spend some time in
Puerto Rico with Olivero's family and then fly back to Argentina on March 2, 2011.
However, during their stay in Puerto Rico, the plan began to change and the date
of return was pushed back due to Olivero's involvement in a car accident and her
apparently new-found interest in pursuing a business venture with her sister.
Around mid-March 2011, Olivero announced to Darin that neither she nor LAD would
be returning to Argentina. Darin remained on the island as long as he could, but
his tourist visa was set to expire in July 2011.   On July 7, 2011-just two days before Darin's departure-Darin and Olivero executed an affidavit regarding the care and supervision of their son during Darin's absence. Olivero drafted the Affidavit herself. The Affidavit's terms authorized her to take any steps necessary to provide for the education, health care, and overall well-being of the child. A provision authorizing the child to travel with either parent was there as well. At Darin's insistence, language was included stating he was leaving the United States "against his will" and was not abandoning his child. He eventually left the country on July 9, 2011.  Thereafter, although separated geographically, Darin maintained continuous and frequent communication with his son.

    On November 18, 2011, Olivero filed for legal custody of LAD in Puerto Rico
state court. According to the custody petition, Olivero filed so that she could
"send [LAD] to visit [Darin] at Christmas," since they had not been able to reach
an agreement and she feared the retention of the child.  On December 19, 2011,
Darin filed an application under the Convention with the Argentina Central
Authority requesting the return of his son to Argentina. On February 22, 2012,
Darin filed the action with the federal district court in Puerto Rico, alleging Olivero's actions amounted to a "wrongful retention" of his son.

        After holding a hearing the district court concluded that Darin had not met his
burden of establishing a wrongful removal or retention. Indicating that the
alleged removal or retention had occurred in July 2011, on the date which Darin
left Puerto Rico, the court found that as of that time "a new habitual residence in [the United States] was acquired based on the parents' shared intention in signing the affidavit."  Darin had, according to the court, "acquiesced/consented" to LAD remaining in Puerto Rico. The court concluded that because LAD "was a habitual resident of Puerto Rico at the time of the claimed removal or retention," the retention or removal was not wrongful. It denied Darin's petition and dismissed his claims.

           The First Circuit reversed. No one disputed that  Darin had custody rights over LAD or that he was exercising them at the time of the alleged retention. The only question was whether Darin established by a preponderance of the evidence that Argentina ( was LAD's habitual residence prior to his retention. The district court thought Darin fell short, Upon  de novo review the First Circuit disagreed with it and found that he established habitual residence in Argentina.

  The First Circuit diverged from the district court on the question of when
LAD's alleged retention occurred. The district court indicated that the relevant date of retention was July 2011, which was when Darin left Puerto Rico. Darin argued that the retention occurred in mid-March 2011, when Olivero informed him that she would be remaining in Puerto Rico. The Fifth Circuit found the record supported Darin's position. By mid-March 2011, Olivero made it clear to Darin that she and their son would be permanently residing in the United States. Her actions afterwards only confirmed this. Olivero, true to her word, refused to return to Argentina.  Once Olivero decided to stay in the United States with the child, there was nothing Darin could do to prevent a separation from his son. His tourist visa excluded the possibility of staying indefinitely with LAD in the United States, and he could not take LAD back to Argentina because the POA authorizing the child to travel with only one parent had been revoked.  As of mid-March 2011, Darin had no legal way of remaining with his son.

The next question was whether Argentina was LAD's habitual residence in mid-March 2011. The Court observed that a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective. In cases involving more than one potential residence, a distinction must be made between the abandonment of a prior habitual residence and the acquisition of a new one.  When the question is whether a young child-lacking both the material and psychological means to decide where he or she will reside-has abandoned a prior
habitual residence, "the intention or purpose which has to be taken into account
is that of the person or persons entitled to fix the place of the child's residence." Mozes, 239 F.3d at 1076.  Generally, it is "the parents' shared intent or settled purpose regarding their child's residence" that guides the inquiry.  One parent's wishes are not sufficient, by themselves, to effect a change in a child's habitual residence.   Utilizing Darin's July 2011 departure date as the operative date of retention, the district court found that the Affidavit (signed a couple days before), "clearly show[ed] the parents' last shared intent in determining habitual residence." The court's ultimate conclusion was the United States was LAD's habitual residence prior to the alleged retention. Upon conducting a de novo review, the Fifth Circuit concluded that this determination was flawed.   Based on the uncontested facts, it was safe to say that, prior to mid-March  2011, the parties' shared intent was not for the child to be a habitual resident
of the United States. It was the parties' shared intent to return to Argentina on March 2, 2011. Olivero did not deny this was the plan; she testified as much. Olivero admitted it was she who had a change of heart once in Puerto Rico and decided to stay there with her son. A unilateral decision is not enough. There was simply no evidence in the record from which the district court could have found a mutual intent to change their son's habitual residence on the date of retention.   Furthermore, the district court was misguided in emphasizing LAD's acclimatization to the United States for purposes of its habitual residence determination. Evidence of acclimatization is not enough to establish a child's habitual residence in a new country when contrary parental intent exists. See Mozes, 239 F.3d at 1078-79. A "change in geography" and "the passage of an appreciable period of time ... that is sufficient for acclimatization" are considerations for the court when "the decision to alter a child's habitual residence depends on the shared settled intention of the parents."  In the absence of shared parental intent, the district court should have "be [en] slow to infer ... an earlier habitual residence has been abandoned."    The evidence on record did not show that the parties shared an intent to change LAD's habitual residence to the United States, but instead it pointed only to Olivero's individual intent to do so. Accordingly, it concluded that the district court's finding otherwise was clearly erroneous. Applying the de novo standard of review the ultimate habitual residence determination calls for it found that Darin had established by a preponderance of the evidence that LAD's habitual residence as of the retention was Argentina, and that Olivero wrongfully retained LAD in the United States.

The Fifth Circuit found that the district court, incorrectly using the terms consent and acquiescence interchangeably, found that Darin had agreed to LAD remaining in the United States. It found that Darin, by signing the Affidavit, "voluntarily and without
intimidation, threats or coercion" was agreeing that LAD could stay in the United
States for an indefinite period of time. The district court also found that Darin had "consent[ed] to LAD's retention in the United States because he "failed for five
(5) months to make any meaningful effort to obtain return of the minor child and
failed to pay any child support." The evidence on record compelled the Fifth Circuit to conclude that the district court got it wrong.

The consent inquiry focuses on the time prior to the retention and therefore Darin's signing of the Affidavit was out of play. Focusing on the parties' conduct prior to mid-March 2011, there was little Olivero could rely on to support a consent defense during this time period. The objective facts in the record pointed to one conclusion only: Darin did not consent to LAD's retention in the United States in mid-March 2011. Olivero did not make the required preponderance-of-the-evidence showing and her consent defense failed. Because the defense of acquiescence pertains only to what happened post-retention, the relevant period was  between mid-March 2011
and Darin's filing of the petition for return on December 19, 2011.  Acquiescence tends to require more formality than consent. When attempting to characterize ambiguous conduct as a basis for inferred acquiescence, courts employ a pure subjective intent inquiry. The subjective intent refers to the subjective intent of the parent who is claimed to have acquiesced. Olivero's primary argument was that the Affidavit evidences Darin's acquiescence to LAD remaining in the United States. This was a dead end. Acquiescence to LAD's retention in the United States could not be found in the plain language of the Affidavit, nor could the Affidavit be read to imply such. The district court was mistaken in concluding it did.  A reading of the Affidavit revealed no mention in the entire two-page document, express or implied, of establishing a new residence in, or permanently relocating to, the United States.  Also, the fact that the Affidavit contained open-ended terms was not evidence that Darin acquiesced to LAD remaining permanently in the United States. Both parties testified that they executed the Affidavit so Olivero could take care of LAD while Darin was away.  In light of the Affidavit's language and the parties' testimony as to their reasons for its execution, the Affidavit simply could not be read as a declaration of acquiescence, much less unconditional acquiescence, to the retention of the child in the United States. The defense of acquiescence calls for definiteness and clarity, i.e., a clear and unequivocal expression of an agreement or a convincing written renunciation of rights. The Affidavit fell far short.    Moreover, the Affidavit did not support the district court's alternative finding that it functioned as a renunciation of rights under the Convention.

    Olivero contended that Darin's acquiescence could be inferred from some of
his actions after he left Puerto Rico. She argued that Darin's filing of the  petition for return in December 2011 was inconsistent with Darin opposing LAD's relocation to the United States. That Darin took around five months to file the petition after he was back in Argentina was not enough to constitute acquiescence. The fact that Darin officially filed on December 19, 2011 did not mean he decided to pursue legal action on that day.    Furthermore, the Convention allows for a petition to be filed up to a year after the wrongful retention. See Convention, supra Article 12 at 1502. And even when a petition is filed after the one year period, there are instances where a federal court may still order a child's return. To say that Darin acquiesced because he filed within the time prescribed by the Convention is irrational. It would render the Convention's one year provision pointless. Darin had a full year to file his petition, and he did file within that year. In this particular instance, the passage of time between Darin's departure from the United States and his filing of a timely petition for return was not probative of acquiescence.

      Darin established wrongful retention by a preponderance of the evidence.
Because Olivero did not introduce sufficient evidence to establish Darin's consent
or acquiescence to this retention, the court  ordered the return of LAD to Argentina.

Mendoza v Silva, 2014 WL 658068 (N.D.Iowa) [Mexico] [ Attorneys Fees] [Clearly inappropriate]



In Mendoza v Silva, 2014 WL 658068 (N.D.Iowa)   Plaintiff Maria Guadalupe Aguilar Mendoza, a citizen of Mexico, filed an action pursuant to the Hague Convention to secure the return of her daughters, to Mexico. After the district court ordered Mr. Medina to transfer the minor children to Ms. Mendoza at the United States/Mexico border in Nuevo Laredo, Mexico, the case was before the district court on Ms. Mendoza's December 20, 2013, Motion For attorney's fees totaling $32,265.00 and expenses totaling $3,084.62.

Mr. Medina contended that no award of fees or expenses was appropriate because he believed (and still believes) in good faith that the parties had an agreement for the children to come to and remain in the United States to start school; the attorney's fees and costs claimed by Ms. Mendoza were not reasonable and, were  approximately three times his own attorney's fees; and he was earning only approximately $9.00 per hour, so that he could not possibly afford to pay any attorney's fees or expenses in this matter.

         The district court surveyed the relevant cases under  42 U.S.C. § 11607(b)(3) and observed that there is a relatively small, but significant group of decisions of the Circuit Courts of Appeals concerning the standards for awards of fees and expenses under these provisions. (Citing Hollis v. O'Driscoll, 739 F.3d 108, 113 (2d Cir.2014) ; Ozaltin v. Ozaltin, 708 F.3d 355, 377 (2d Cir.2013); Whallon v. Lynn,  356 F.3d 138, 140 (1st Cir.2004);  West v. Dobrev, 735 F.3d 921, 932 (10th Cir.2013). The appropriate standards for awarding fees and expenses in international child return cases are as follows: [Section] 11607(b)(3) retains what we have previously described as the  "equitable" nature of cost awards.  Moore v. County of Delaware, 586 F.3d 219,  221 (2d Cir.2009).... [A] prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of  equitable principles by the district court. Absent any statutory guidance to the  contrary, the appropriateness of such costs depends on the same general  standards that apply when "attorney's fees are to be awarded to prevailing  parties only as a matter of the court's discretion." Fogerty v. Fantasy, Inc.,  510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)."There is no precise  rule or formula for making these determinations, but instead equitable
 discretion should be exercised in light of the [relevant] considerations."Ozaltin, 708 F.3d at 375.   The Circuit Courts of Appeals have also provided guidance on specific considerations that go into the district court's exercise of its discretion and equitable consideration of claims for fees and expenses in international child return cases. First, where the respondent "is not blameless for the current state of affairs," the Tenth Circuit Court of Appeals has held that an award of fees and expenses is not "clearly inappropriate."  West, 735 F.3d at 933.   On the other hand, where the respondent had a "reasonable basis for thinking at the time of removing the children to the United States ... that her actions were consistent with [the law of the country of habitual residence]," that belief, even if mistaken, "is a relevant equitable factor when considering whether a costs award is appropriate." Ozaltin, 708 F.3d at 375. Also, "[a]t least two courts of appeals have recognized that a fee award in a case under the Convention might be excessive and an abuse of discretion if it prevents the respondent-parent from caring for the child." Norinder v. Fuentes, 657 F.3d 526, 536 (2d Cir.2011) (citing  Whallon, 356 F.3d at 139, and  Rydder, 49 F.3d at 373-74).   Several district courts have not simply reduced awards of costs in light of a respondent's inability to pay, but have declined to award costs at all, where the losing respondent would be unable to pay any amount of an award, on the ground that any award would be "clearly inappropriate" in such circumstances.

      The district court concluded that it was "clearly inappropriate" to award any of Ms. Mendoza's claimed legal fees against Mr. Medina. The court found it to be a very close case. It believed that Mr. Medina had a mistaken, but nevertheless good faith belief that the parties had agreed that he would take the children to the United States where they would attend school. See  Ozaltin, 708 F.3d at 375. Just as importantly, it  found that Mr. Medina's financial circumstances made it "clearly inappropriate" to award any substantial amount of attorney's fees against him. Doing so would interfere with his ability to provide other support to his children. Mr. Medina earned approximately $9 per hour, and the record did not show that he had any other assets from which so large a fee award could be satisfied. However, with regard to Ms. Mendoza's claimed expenses it found that even considering Mr. Medina's financial condition, awarding some share of Ms. Mendoza's expenses is consistent with the goals of Article 26 of the 1980 Hague Convention and 42 U.S.C. § 11607(b)(3); and, in part, because Ms. Mendoza had some obligation to pay these expenses out-of-pocket, even if her legal representation was pro Bono.  It awarded her one-half of her claimed expenses, that is $1,542.31,against Mr. Medina.