Chamberlain v. Chamberlain

• Decision Date: 19 December 2005
• Docket Number: 2004-09562.,2004-06816.
• Citation: 2005 NY Slip Op 09667,808 N.Y.S.2d 352,24 A.D.3d 589
• Parties: KAREN ELIZABETH CHAMBERLAIN, Appellant, v. MARK HENRY CHAMBERLAIN, Respondent.
• Court: New York Supreme Court — Appellate Division

24 A.D.3d 589

808 N.Y.S.2d 352

2005 NY Slip Op 09667

KAREN ELIZABETH CHAMBERLAIN, Appellant, v. MARK HENRY CHAMBERLAIN, Respondent.

2004-06816.

2004-09562.

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 19, 2005.

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from so much of (1) a judgment of the Supreme Court, Suffolk County (Bivona, J.), entered July 8, 2004, as, upon awarding her sole custody of the parties' two children, awarded the defendant sole decision-making authority as to the children's extracurricular activities, religious upbringing, and schooling, awarded the defendant visitation, directed both parties to attend coparenting counseling until completion is certified by a particular therapist, failed to direct the defendant to attend anger management counseling, limited the award of child support to the plaintiff by imputing income to her, denied her request for an award of maintenance, awarded the defendant 30 percent of her enhanced earning capacity, denied her request that the defendant pay one half of her student loans incurred during the parties' marriage, awarded the defendant a certain joint investment account as separate property, granted the defendant's application for an award of an attorney's fee, and denied her application for an award of an attorney's fee, and (2) an order of the same court dated October 18, 2004, as

granted, without a hearing, the defendant's motion to hold her in contempt of the provision of the judgment awarding the defendant sole decision-making authority as to the children's schooling, and for an award of an attorney's fee.

Ordered that the judgment is modified, on the law, the facts, and as a matter of discretion, by (1) deleting the provision thereof awarding the defendant sole decision-making authority with respect to the children's extracurricular activities, religious upbringing, and schooling and substituting therefor a provision prohibiting the plaintiff from scheduling any extracurricular activity for the children during the defendant's scheduled parenting time without his consent, (2) deleting the provision thereof providing that the defendant will have visitation three weekends per month and substituting therefor a provision providing that the defendant will have visitation two weekends per month, (3) deleting the provision thereof providing that the defendant will have visitation one night during the week prior to the weekend on which he does not have visitation and substituting therefor a provision providing that the defendant will have visitation on Tuesday and Thursday of each week from the conclusion of the children's school day until 8:00 P.M., (4) deleting the provision thereof awarding the defendant a distributive award in the amount of $34,950 and substituting therefor a provision awarding the defendant a distributive award in the amount of $24,969, and (5) deleting the provision thereof denying the plaintiff's request for maintenance; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further,

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements; and it is further,

Ordered that the matter is remitted to the Supreme Court, Suffolk County, for (1) a new determination with respect to the plaintiff's request for maintenance without considering as income to the plaintiff the income stream derived from her enhanced earning capacity, the value of which was distributed to the defendant, and (2) an evidentiary hearing on the defendant's motion to hold the plaintiff in contempt.

We have recognized that when joint custody is not possible because of the antagonistic relationship between the parties (see Braiman v. Braiman, 44 NY2d 584, 591 [1978]; Robinson v. Robinson, 111 AD2d 316, 318 [1985]), it may be appropriate, depending upon the particular circumstances of the case, to grant some custodial decision-making authority to the noncustodial parent (see Matter of Ring v. Ring, 15 AD3d 406 [2005]; Matter of Penninipede v. Penninipede, 6 AD3d 445, 446 [2004]). The division of authority is usually made either somewhat evenly, in order to maintain the respective roles of each parent in the child's life (see Matter of Ring v. Ring, supra; Hugh L. v. Fhara L., NYLJ, June 1, 2000, at 29, col 6 [Sup Ct, Bronx County, Drager, J.]) or, although unevenly, in a manner intended to take advantage of the strengths, demonstrated ability, or expressed interest of the noncustodial parent with respect to a particular dimension of child-rearing (see Matter of Penninipede v. Penninipede, supra at 446; Mars v. Mars, 286 AD2d 201, 202-203 [2001]; Matter of Frize v. Frize, 266 AD2d 753, 757 [1999]; Arenson v. Arenson, 2003 NY Slip Op 50573 [U] [Sup Ct, Onondaga County, Feb. 13, 2003]; F. v. F., NYLJ, Oct. 19, 2001, at 21, col 5, [Sup Ct, Kings County, Panepinto, J.]). Here, the only predicate for granting decision-making authority with respect to most of the significant issues in child-rearing—the children's extracurricular activities, religious upbringing and schooling—to the defendant, the noncustodial parent, was the finding that the plaintiff had interfered with the defendant's parental role by scheduling the children's extracurricular activities during his parenting time. While this finding is supported by the record and justified removing from the plaintiff the decision-making authority that she had abused (see Trinh Quoc Tran v. Tau Minh Tran, 277 AD2d 49, 49-50 [2000]), it was not a basis for depriving the plaintiff of all decision-making authority normally incident to the role of sole custodial parent (see Crane v. Crane, 264 AD2d 749, 750-751 [1999]; Matter of Davis v. Davis, 240 AD2d 928, 930 [1997]). Since the Supreme Court's concern could have been addressed by prohibiting the plaintiff from scheduling certain activities during the defendant's parenting time without his consent, the Supreme Court's grant of decision-making authority to the defendant was an improvident exercise of its discretion.

The Supreme Court also improvidently exercised its discretion in providing that the defendant have visitation three weekends each month plus one night during the week preceding the weekend on which he did not have visitation. The extent to which the noncustodial parent may exercise parenting time is a matter committed to the sound discretion of the hearing court, to be determined on the basis of the best interests of the child (see Matter of Kachelhofer v. Wasiak, 10 AD3d 366 [2004]; Matter of Levande v. Levande, 308 AD2d 450, 451 [2003]; Matter of Morash v. Minucci, 299 AD2d 486, 487 [2002]), consistent with the concurrent right of the child and the noncustodial parent (see Weiss v. Weiss, 52 NY2d 170, 175 [1981]; Matter of Ritz v. Otero, 265 AD2d 560 [1999]; Matter of Rodriguez v. Gasparino, 218 AD2d 739, 740 [1995]) to meaningful time together (see Matter of Grossman v. Grossman, 5 AD3d 486, 487 [2004]; Matter of Mackey v. Mackey, 265 AD2d 329 [1999]; Matter of Bradley v. Wright, 260 AD2d 477 [1999]). A visitation schedule that deprives the custodial parent of "any significant quality time" with the child is, however, excessive (Palumbo v. Palumbo, 292 AD2d 358, 360 [2002]; Cesario v. Cesario, 168 AD2d 911 [1990]). Here, the schedule established by the Supreme Court had that effect. In the circumstances presented, a more appropriate schedule, consistent with the parental rights and responsibilities of both parties, provides for the noncustodial defendant to have visitation two weekends each month and two evenings per week.

The Supreme Court correctly concluded that the parties' investment account, funded with the proceeds of an action commenced by the defendant to recover damages for personal injuries he sustained prior to the marriage, is his separate property, even though he placed those funds in an investment account titled jointly with the plaintiff. The proceeds of an action to recover damages for personal injuries are the separate property of the injured spouse (see Domestic Relations Law § 236 [B] [1] [d] [2]; Gundlach v. Gundlach, 223 AD2d 942 [1996]). When spouses hold property in a joint account, however, a rebuttable presumption arises that both have an undivided one-half interest in it (see Banking Law § 675 [b]; Tayar v. Tayar, 208 AD2d 609, 610 [1994]). Thus, by depositing the proceeds of his personal injury lawsuit in an account titled jointly with the plaintiff, the defendant created the presumption that the funds are marital (see Lagnena v. Lagnena, 215 AD2d 445, 446 [1995]; Di Nardo v. Di Nardo, 144 AD2d 906). This presumption may be overcome, however, by evidence that the account was titled jointly as a matter of convenience, without the intention of creating a beneficial interest, and that the funds in the account originated solely in the separate property of the spouse who claims the separate interest (see Wade v. Steinfeld, 15 AD3d 390, 391 [2005]; Lagnena, supra; Giuffre v. Giuffre, 204 AD2d 684, 685 [1994]; Filippi v. Filippi, 53 AD2d 658, 659 [1976]; Phillips v. Phillips, 70 AD2d 30, 38 [1979]). Here, the defendant overcame the presumption by establishing that he was the sole beneficiary of the proceeds of the personal injury action, that the investment account into which the funds were deposited, although in joint names, was managed solely by him, and that the plaintiff had no involvement with the account other than one withdrawal which she made at the defendant's direction (see Garner v. Garner, 307 AD2d 510 [2003]).

The Supreme Court providently exercised its discretion in awarding the defendant 30 percent of the value of the degrees and license constituting the enhanced earning capacity achieved by the plaintiff during the marriage, based upon his indirect contributions to the attainment of that enhanced earning capacity by...