EVALUATION FORM
EVALUATION FORM In order for us to improve our continuing legal education programs, we need your input. Please complete this evaluation form and place it in the box provided at the registration desk at the end of the session. You may also mail the form to CLE Director, NYCLA, and 14 Vesey Street, New York, NY 10007. How to Try an Equitable Distribution Case Tuesday, May 20th, 2014, and Wednesday, May 21st, 2014, 9:00 AM – 5:00 PM I. Please rate each speaker in this session on a scale of 1 - 4 (1 = Poor; 2 = Fair; 3 = Good; 4 = Excellent) Presentation Dror Bikel Hon. Harold Beeler (Ret.) Briana Denney Hon. Saralee Evans (Ret.) Jonathan Gould David Gresen Steven J. Mandel Frederic P. Schneider Sandra L. Schpoont Peter Theobald Judith E. White Jamie Weiss Elliott Wiener PLEASE TURN PAGE OVER Content Written Materials II. Program Rating: 1. What is your overall rating for this course? Excellent Good Fair Poor Suggestions/Comments: ________________________________________________ _________________________________________________________________ A. Length of course: Too Long____ Too Short_____ Just Right_____ B. Scheduling of course should be: Earlier____ Later_____ Just Right_____ 2. How did you find the program facilities? Excellent Good Fair Poor Comments: ___________________________________________________________ _________________________________________________________________ 3. How do you rate the technology used during the presentation? Excellent Good Fair Poor Comments: ___________________________________________________________ _________________________________________________________________ 4. Why did you choose to attend this course? (Check all that apply) Need the MCLE Credits Faculty Topics Covered Other (please specify) _______________________________________________ 5. How did you learn about this course? (Check all that apply) NYCLA Flyer NYCLA Postcard CLE Catalog NYCLA Website New York Law Journal Website Google Search Other (please specify) ____________________________ NYCLA Newsletter NYCLA CLE Email 6. What are the most important factors in deciding which CLE courses to attend (Please rate the factors 1- 5, 1 being the most important). ___ Cost ___ Subject matter ___ Location ___ Date and Time ___ Provider ___ Organization of which you are a member ___ Other______________________________________________ 6. Are you a member of NYCLA? III ___ Yes ___No If NYCLA were creating a CLE program specifically tailored to your practice needs, what topics or issues would you want to see presented? N S T I T U T E I C L E N Y C L A H OW TO T RY AN E QUITABLE D ISTRIBUTION C ASE Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY scheduled for May 20th and 21st, 2014 Program Presented By: The New York College of Matrimonial Law Trial Attorneys (www.nytrialcollege.com) Faculty: Dror Bikel, Bikel & Mandarano, LLP; Hon. Harold B. Beeler (Ret.), Law Office of Harold B. Beeler; Briana Denney, Newman & Denney, P.C.; Hon. Saralee Evans (Ret.), Siegel Teitelbaum & Evans, LLP; Jonathan Gould, Ph.D.; David L. Gresen, CPA/ABV/CFF/CFE, Klien Liebman & Gresen LLP; Steven J. Mandel, The Mandel Law Firm; Frederic P. Schneider, Ballon Stoll Bader & Nadler, P.C.; Sandra L. Schpoont, Schpoont & Cavallo, LLP; Peter Theobald, ACE/AME, TC Forensics; Judith E. White, Garr and White, P.C.; Jamie L. Weiss, Teitler & Teitler, LLP; Elliot J. Wiener, Phillips Nizer, LLP This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 16 Transitional and Non-Transitional credit hours; 6 Skills; 9 Professional Practice/Law Practice Management and 1 Ethics. This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 16 hours of total CLE credits. Of these, 1 qualifies as an hour of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law. ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey. Information Regarding CLE Credits and Certification How to Try an Equitable Distribution Case May 20th and May 21st , 2014; 9:00 AM to 5:00 PM The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant. ii. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate. iv. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week. v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week. Thank you for choosing NYCLA as your CLE provider! HOW TO TRY AN EQUITABLE DISTRIBUTION CASE Presented By: The New York College of Matrimonial Law Trial Attorneys www.nytrialcollege.com Sponsored By: The New York County Lawyers’ Association Date and Location: May 20, 2014 and May 21, 2013 The New York County Lawyers’ Association Day 1 – May 20th Morning Program Introductory Remarks o Judith E. White The Law of Equitable Distribution and the Facts of Our Case o Jaime L. Weiss Pretrial Discovery 30 minutes 20 minutes o Steven J. Mandel Trial Preparation 20 minutes o Frederic P. Schneider The Fundamentals of Direct Examination o Sandra L. Schpoont 45 minutes The Fundamentals of Cross-Examination o Dror Bikel 45 minutes Afternoon Program Demonstration of Direct-Examination of Party Witness o Presiding Justice: Hon. Saralee Evans/ Hon. Harold B. Beeler o Examining Attorney: Sandra L. Schpoont o Opposing Attorney: Dror Bikel o Facilitator: Judith E. White Demonstration of Cross-Examination of Party Witness o Presiding Justice: Hon. Saralee Evans/Hon. Harold B. Beeler o Examining Attorney: Dror Bikel o Opposing Attorney: Sandra L. Schpoont o Facilitator: Judith E. White Day 2 – May 21st Morning Program Evidentiary Issues Relating to Expert Reports and Testimony o Briana Denney Electronic Discovery and Retention of Evidence o Peter J. Theobald, ACE/AME The Fundamentals of Tracing Separate Property and Forensic Accounting o David L. Gresen, CPA Afternoon Program Demonstration of Direct-Examination of Expert Witness o Presiding Justice: Hon. Saralee Evans/Hon. Harold B. Beeler o Examining Attorney: Elliot J. Wiener o Opposing Attorney: Dror Bikel o Expert Witness: Jonathan Gould, Ph.D. o Facilitator: Judith E. White Demonstration of Cross-Examination of Expert Witness o Presiding Justice: Hon. Saralee Evans/ Hon. Harold B. Beeler o Examining Attorney: Dror Bikel o Opposing Attorney: Elliot J. Wiener o Expert Witness: Jonathan Gould, Ph.D. o Facilitator: Judith E. White Remarks from the Bench o Hon. Saralee Evans/Hon. Harold B. Beeler N.Y. DOM. LAW § 236 : NY Code - Section 236: Special controlling provisions; prior actions or proceedings; new actions or proceedings - See more at: Except as otherwise expressly provided in this section, the provisions of part A shall be controlling with respect to any action or proceeding commenced prior to the date on which the provisions of this section as amended become effective and the provisions of part B shall be controlling with respect to any action or proceeding commenced on or after such effective date. Any reference to this section or the provisions hereof in any action, proceeding, judgment, order, rule or agreement shall be deemed and construed to refer to either the provisions of part A or part B respectively and exclusively, determined as provided in this paragraph any inconsistent provision of law notwithstanding. PART A PRIOR ACTIONS OR PROCEEDINGS Alimony, temporary and permanent. 1. Alimony. In any action or proceeding brought (1) during the lifetime of both parties to the marriage to annul a marriage or declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, the court may direct either spouse to provide suitably for the support of the other as, in the court's discretion, justice requires, having regard to the length of time of the marriage, the ability of each spouse to be self supporting, the circumstances of the case and of the respective parties. Such direction may require the payment of a sum or sums of money either directly to either spouse or to third persons for real and personal property and services furnished to either spouse, or for the rental of or mortgage amortization or interest payments, insurance, taxes, repairs or other carrying charges on premises occupied by either spouse, or for both payments to either spouse and to such third persons. Such direction shall be effective as of the date of the application therefor, and any retroactive amount of alimony due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary alimony which has been paid. Such direction may be made in the final judgment in such action or proceeding, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and the final judgment. Such direction may be made notwithstanding that the parties continue to reside in the same abode and notwithstanding that the court refuses to grant the relief requested by either spouse (1) by reason of a finding by the court that a divorce, annulment or judgment declaring the marriage a nullity had previously been granted to either spouse in an action in which jurisdiction over the person of the other spouse was not obtained, or (2) by reason of the misconduct of the other spouse, unless such misconduct would itself constitute grounds for separation or divorce, or (3) by reason of a failure of proof of the grounds of either spouse's action or counterclaim. Any order or judgment made as in this section provided may combine in one lump sum any amount payable to either spouse under this section with any amount payable to either spouse under section two hundred forty of this chapter. Upon the application of either spouse, upon such notice to the other party and given in such manner as the court shall direct, the court may annul or modify any such direction, whether made by order or by final judgment, or in case no such direction shall have been made in the final judgment may, with respect to any judgment of annulment or declaring the nullity of a void marriage rendered on or after September first, nineteen hundred forty or any judgment of separation or divorce whenever rendered, amend the judgment by inserting such direction. Subject to the provisions of section two hundred forty-four of this chapter, no such modification or annulment shall reduce or annul arrears accrued prior to the making of such application unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears. Such modification may increase such support nunc pro tunc based on newly discovered evidence. 2. Compulsory financial disclosure. In all matrimonial actions and proceedings commenced on or after September first, nineteen hundred seventy-five in supreme court in which alimony, maintenance or support is in issue and all support proceedings in family court, there shall be compulsory disclosure by both parties of their respective financial states. No showing of special circumstances shall be required before such disclosure is ordered. A sworn statement of net worth shall be provided upon receipt of a notice in writing demanding the same, within twenty days after the receipt thereof. In the event said statement is not demanded, it shall be filed by each party, within ten days after joinder of issue, in the court in which the procedure is pending. As used in this section, the term net worth shall mean the amount by which total assets including income exceed total liabilities including fixed financial obligations. It shall include all income and assets of whatsoever kind and nature and wherever situated and shall include a list of all assets transferred in any manner during the preceding three years, or the length of the marriage, whichever is shorter; provided, however that transfers in the routine course of business which resulted in an exchange of assets of substantially equivalent value need not be specifically disclosed where such assets are otherwise identified in the statement of net worth. Noncompliance shall be punishable by any or all of the penalties prescribed in section thirty-one hundred twenty-six of the civil practice law and rules, in examination before or during trial. PART B NEW ACTIONS OR PROCEEDINGS Maintenance and distributive award. 1. Definitions. Whenever used in this part, the following terms shall have the respective meanings hereinafter set forth or indicated: a. The term "maintenance" shall mean payments provided for in a valid agreement between the parties or awarded by the court in accordance with the provisions of subdivision six of this part, to be paid at fixed intervals for a definite or indefinite period of time, but an award of maintenance shall terminate upon the death of either party or upon the recipient's valid or invalid marriage, or upon modification pursuant to paragraph (b) of subdivision nine of section two hundred thirty-six of this part or section two hundred forty-eight of this chapter. b. The term "distributive award" shall mean payments provided for in a valid agreement between the parties or awarded by the court, in lieu of or to supplement, facilitate or effectuate the division or distribution of property where authorized in a matrimonial action, and payable either in a lump sum or over a period of time in fixed amounts. Distributive awards shall not include payments which are treated as ordinary income to the recipient under the provisions of the United States Internal Revenue Code. c. The term "marital property" shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined. d. The term separate property shall mean: (1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal injuries; (3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; (4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part. e. The term "custodial parent" shall mean a parent to whom custody of a child or children is granted by a valid agreement between the parties or by an order or decree of a court. f. The term "child support" shall mean a sum paid pursuant to court order or decree by either or both parents or pursuant to a valid agreement between the parties for care, maintenance and education of any unemancipated child under the age of twenty-one years. 2. Matrimonial actions. a. Except as provided in subdivision five of this part, the provisions of this part shall be applicable to actions for an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce, for a declaration of the validity or nullity of a marriage, and to proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce, commenced on and after the effective date of this part. Any application which seeks a modification of a judgment, order or decree made in an action commenced prior to the effective date of this part shall be heard and determined in accordance with the provisions of part A of this section. b. With respect to matrimonial actions which commence on or after the effective date of this paragraph, the plaintiff shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in this paragraph. The automatic orders shall be binding upon the plaintiff in a matrimonial action immediately upon the filing of the summons, or summons and complaint, and upon the defendant immediately upon the service of the automatic orders with the summons. The automatic orders shall remain in full force and effect during the pendency of the action, unless terminated, modified or amended by further order of the court upon motion of either of the parties or upon written agreement between the parties duly executed and acknowledged. The automatic orders are as follows: (1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action. (2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keough accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court. (3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action. (4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect. (5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect. 3. Agreement of the parties. An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Notwithstanding any other provision of law, an acknowledgment of an agreement made before marriage may be executed before any person authorized to solemnize a marriage pursuant to subdivisions one, two and three of section eleven of this chapter. Such an agreement may include (1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this article. Nothing in this subdivision shall be deemed to affect the validity of any agreement made prior to the effective date of this subdivision. 4. Compulsory financial disclosure. a. In all matrimonial actions and proceedings in which alimony, maintenance or support is in issue, there shall be compulsory disclosure by both parties of their respective financial states. No showing of special circumstances shall be required before such disclosure is ordered. A sworn statement of net worth shall be provided upon receipt of a notice in writing demanding the same, within twenty days after the receipt thereof. In the event said statement is not demanded, it shall be filed with the clerk of the court by each party, within ten days after joinder of issue, in the court in which the proceeding is pending. As used in this part, the term "net worth" shall mean the amount by which total assets including income exceed total liabilities including fixed financial obligations. It shall include all income and assets of whatsoever kind and nature and wherever situated and shall include a list of all assets transferred in any manner during the preceding three years, or the length of the marriage, whichever is shorter; provided, however that transfers in the routine course of business which resulted in an exchange of assets of substantially equivalent value need not be specifically disclosed where such assets are otherwise identified in the statement of net worth. All such sworn statements of net worth shall be accompanied by a current and representative paycheck stub and the most recently filed state and federal income tax returns including a copy of the W-2(s) wage and tax statement(s) submitted with the returns. In addition, both parties shall provide information relating to any and all group health plans available to them for the provision of care or other medical benefits by insurance or otherwise for the benefit of the child or children for whom support is sought, including all such information as may be required to be included in a qualified medical child support order as defined in section six hundred nine of the employee retirement income security act of 1974 (29 USC 1169) including, but not limited to: (i) the name and last known mailing address of each party and of each dependent to be covered by the order; (ii) the identification and a description of each group health plan available for the benefit or coverage of the disclosing party and the child or children for whom support is sought; (iii) a detailed description of the type of coverage available from each group health plan for the potential benefit of each such dependent; (iv) the identification of the plan administrator for each such group health plan and the address of such administrator; (v) the identification numbers for each such group health plan; and (vi) such other information as may be required by the court. Noncompliance shall be punishable by any or all of the penalties prescribed in section thirty-one hundred twenty-six of the civil practice law and rules, in examination before or during trial. b. As soon as practicable after a matrimonial action has been commenced, the court shall set the date or dates the parties shall use for the valuation of each asset. The valuation date or dates may be anytime from the date of commencement of the action to the date of trial. 5. Disposition of property in certain matrimonial actions. a. Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment. b. Separate property shall remain such. c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties. d. In determining an equitable disposition of property under paragraph c, the court shall consider: (1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; (2) the duration of the marriage and the age and health of both parties; (3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; (4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution; (5) the loss of health insurance benefits upon dissolution of the marriage; (6) any award of maintenance under subdivision six of this part; (7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (8) the liquid or non-liquid character of all marital property; (9) the probable future financial circumstances of each party; (10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; (11) the tax consequences to each party; (12) the wasteful dissipation of assets by either spouse; (13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (14) any other factor which the court shall expressly find to be just and proper. e. In any action in which the court shall determine that an equitable distribution is appropriate but would be impractical or burdensome or where the distribution of an interest in a business, corporation or profession would be contrary to law, the court in lieu of such equitable distribution shall make a distributive award in order to achieve equity between the parties. The court in its discretion, also may make a distributive award to supplement, facilitate or effectuate a distribution of marital property. f. In addition to the disposition of property as set forth above, the court may make such order regarding the use and occupancy of the marital home and its household effects as provided in section two hundred thirty-four of this chapter, without regard to the form of ownership of such property. g. In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel. h. In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier to remarriage, as defined in subdivision six of section two hundred fifty-three of this article, on the factors enumerated in paragraph d of this subdivision. 6. Maintenance. a. Except where the parties have entered into an agreement pursuant to subdivision three of this part providing for maintenance, in any matrimonial action the court may order temporary maintenance or maintenance in such amount as justice requires, having regard for the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and of the respective parties. Such order shall be effective as of the date of the application therefor, and any retroactive amount of maintenance due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary maintenance which has been paid. In determining the amount and duration of maintenance the court shall consider: (1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part; (2) the duration of the marriage and the age and health of both parties; (3) the present and future earning capacity of both parties; (4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor; (5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (6) the presence of children of the marriage in the respective homes of the parties; (7) the tax consequences to each party; (8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (9) the wasteful dissipation of marital property by either spouse; (10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (11) the loss of health insurance benefits upon dissolution of the marriage; and (12) any other factor which the court shall expressly find to be just and proper. b. In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel. c. The court may award permanent maintenance, but an award of maintenance shall terminate upon the death of either party or upon the recipient's valid or invalid marriage, or upon modification pursuant to paragraph (b) of subdivision nine of section two hundred thirty-six of this part or section two hundred forty-eight of this chapter. d. In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier to remarriage, as defined in subdivision six of section two hundred fifty-three of this article, on the factors enumerated in paragraph a of this subdivision. 7. Child support. a. In any matrimonial action, or in an independent action for child support, the court as provided in section two hundred forty of this chapter shall order either or both parents to pay temporary child support or child support without requiring a showing of immediate or emergency need. The court shall make an order for temporary child support notwithstanding that information with respect to income and assets of either or both parents may be unavailable. Where such information is available, the court may make an order for temporary child support pursuant to section two hundred forty of this article. Such order shall, except as provided for herein, be effective as of the date of the application therefor, and any retroactive amount of child support due shall be support arrears/past due support and shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary child support which has been paid. In addition, such retroactive child support shall be enforceable in any manner provided by law including, but not limited to, an execution for support enforcement pursuant to subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules. When a child receiving support is a public assistance recipient, or the order of support is being enforced or is to be enforced pursuant to section one hundred eleven-g of the social services law, the court shall establish the amount of retroactive child support and notify the parties that such amount shall be enforced by the support collection unit pursuant to an execution for support enforcement as provided for in subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules, or in such periodic payments as would have been authorized had such an execution been issued. In such case, the court shall not direct the schedule of repayment of retroactive support. The court shall not consider the misconduct of either party but shall make its award for child support pursuant to section two hundred forty of this article. b. Notwithstanding any other provision of law, any written application or motion to the court for the establishment of a child support obligation for persons not in receipt of family assistance must contain either a request for child support enforcement services which would authorize the collection of the support obligation by the immediate issuance of an income execution for support enforcement as provided for by this chapter, completed in the manner specified in section one hundred eleven-g of the social services law; or a statement that the applicant has applied for or is in receipt of such services; or a statement that the applicant knows of the availability of such services, has declined them at this time and where support enforcement services pursuant to section one hundred eleven-g of the social services law have been declined that the applicant understands that an income deduction order may be issued pursuant to subdivision (c) of section five thousand two hundred forty-two of the civil practice law and rules without other child support enforcement services and that payment of an administrative fee may be required. The court shall provide a copy of any such request for child support enforcement services to the support collection unit of the appropriate social services district any time it directs payments to be made to such support collection unit. Additionally, the copy of any such request shall be accompanied by the name, address and social security number of the parties; the date and place of the parties' marriage; the name and date of birth of the child or children; and the name and address of the employers and income payors of the party from whom child support is sought. Unless the party receiving child support has applied for or is receiving such services, the court shall not direct such payments to be made to the support collection unit, as established in section one hundred eleven-h of the social services law. c. The court shall direct that a copy of any child support or combined child and spousal support order issued by the court on or after the first day of October, nineteen hundred ninetyeight, in any proceeding under this section be provided promptly to the state case registry established pursuant to subdivision four-a of section one hundred eleven-b of the social services law. 8. Special relief in matrimonial actions. a. In any matrimonial action the court may order a party to purchase, maintain or assign a policy of insurance providing benefits for health and hospital care and related services for either spouse or children of the marriage not to exceed such period of time as such party shall be obligated to provide maintenance, child support or make payments of a distributive award. The court may also order a party to purchase, maintain or assign a policy of accident insurance or insurance on the life of either spouse, and to designate in the case of life insurance, either spouse or children of the marriage, or in the case of accident insurance, the insured spouse as irrevocable beneficiaries during a period of time fixed by the court. The obligation to provide such insurance shall cease upon the termination of the spouse's duty to provide maintenance, child support or a distributive award. A copy of such order shall be served, by registered mail, on the home office of the insurer specifying the name and mailing address of the spouse or children, provided that failure to so serve the insurer shall not affect the validity of the order. b. In any action where the court has ordered temporary maintenance, maintenance, distributive award or child support, the court may direct that a payment be made directly to the other spouse or a third person for real and personal property and services furnished to the other spouse, or for the rental or mortgage amortization or interest payments, insurances, taxes, repairs or other carrying charges on premises occupied by the other spouse, or for both payments to the other spouse and to such third persons. Such direction may be made notwithstanding that the parties continue to reside in the same abode and notwithstanding that the court refuses to grant the relief requested by the other spouse. c. Any order or judgment made as in this section provided may combine any amount payable to either spouse under this section with any amount payable to such spouse as child support or under section two hundred forty of this chapter. 9. Enforcement and modification of orders and judgments in matrimonial actions. a. All orders or judgments entered in matrimonial actions shall be enforceable pursuant to section fifty-two hundred forty-one or fifty-two hundred forty-two of the civil practice law and rules, or in any other manner provided by law. Orders or judgments for child support, alimony and maintenance shall also be enforceable pursuant to article fifty-two of the civil practice law and rules upon a debtor's default as such term is defined in paragraph seven of subdivision (a) of section fifty-two hundred forty-one of the civil practice law and rules. The establishment of a default shall be subject to the procedures established for the determination of a mistake of fact for income executions pursuant to subdivision (e) of section fifty-two hundred forty-one of the civil practice law and rules. For the purposes of enforcement of child support orders or combined spousal and child support orders pursuant to section five thousand two hundred forty-one of the civil practice law and rules, a "default" shall be deemed to include amounts arising from retroactive support. The court may, and if a party shall fail or refuse to pay maintenance, distributive award or child support the court shall, upon notice and an opportunity to the defaulting party to be heard, require the party to furnish a surety, or the sequestering and sale of assets for the purpose of enforcing any award for maintenance, distributive award or child support and for the payment of reasonable and necessary attorney's fees and disbursements. b. Upon application by either party, the court may annul or modify any prior order or judgment as to maintenance or child support, upon a showing of the recipient's inability to be selfsupporting or a substantial change in circumstance or termination of child support awarded pursuant to section two hundred forty of this article, including financial hardship. Where, after the effective date of this part, a separation agreement remains in force no modification of a prior order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the judgment or order as modified shall supersede the terms of the prior agreement and judgment for such period of time and under such circumstances as the court determines. Provided, however, that no modification or annulment shall reduce or annul any arrears of child support which have accrued prior to the date of application to annul or modify any prior order or judgment as to child support. The court shall not reduce or annul any arrears of maintenance which have been reduced to final judgment pursuant to section two hundred forty-four of this chapter. No other arrears of maintenance which have accrued prior to the making of such application shall be subject to modification or annulment unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears and the facts and circumstances constituting good cause are set forth in a written memorandum of decision. Such modification may increase maintenance or child support nunc pro tunc as of the date of application based on newly discovered evidence. Any retroactive amount of maintenance, or child support due shall, except as provided for herein, be paid in one sum or periodic sums, as the court directs, taking into account any temporary or partial payments which have been made. Any retroactive amount of child support due shall be support arrears/past due support. In addition, such retroactive child support shall be enforceable in any manner provided by law including, but not limited to, an execution for support enforcement pursuant to subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules. When a child receiving support is a public assistance recipient, or the order of support is being enforced or is to be enforced pursuant to section one hundred eleven-g of the social services law, the court shall establish the amount of retroactive child support and notify the parties that such amount shall be enforced by the support collection unit pursuant to an execution for support enforcement as provided for in subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules, or in such periodic payments as would have been authorized had such an execution been issued. In such case, the court shall not direct the schedule of repayment of retroactive support. The provisions of this subdivision shall not apply to a separation agreement made prior to the effective date of this part. c. Notwithstanding any other provision of law, any written application or motion to the court for the modification or enforcement of a child support or combined maintenance and child support order for persons not in receipt of family assistance must contain either a request for child support enforcement services which would authorize the collection of the support obligation by the immediate issuance of an income execution for support enforcement as provided for by this chapter, completed in the manner specified in section one hundred eleven-g of the social services law; or a statement that the applicant has applied for or is in receipt of such services; or a statement that the applicant knows of the availability of such services, has declined them at this time and where support enforcement services pursuant to section one hundred eleven-g of the social services law have been declined that the applicant understands that an income deduction order may be issued pursuant to subdivision (c) of section five thousand two hundred forty-two of the civil practice law and rules without other child support enforcement services and that payment of an administrative fee may be required. The court shall provide a copy of any such request for child support enforcement services to the support collection unit of the appropriate social services district any time it directs payments to be made to such support collection unit. Additionally, the copy of such request shall be accompanied by the name, address and social security number of the parties; the date and place of the parties' marriage; the name and date of birth of the child or children; and the name and address of the employers and income payors of the party ordered to pay child support to the other party. Unless the party receiving child support or combined maintenance and child support has applied for or is receiving such services, the court shall not direct such payments to be made to the support collection unit, as established in section one hundred eleven-h of the social services law. d. The court shall direct that a copy of any child support or combined child and spousal support order issued by the court on or after the first day of October, nineteen hundred ninety-eight, in any proceeding under this section be provided promptly to the state case registry established pursuant to subdivision four-a of section one hundred eleven-b of the social services law. Questions: 1. Whose burden is it to prove separate property? 2. Whose burden is it to prove appreciation of separate property? 3. When is separate property considered commingled? 4. Does commingling of separate property with marital property transmute the separate property into marital property? 5. Is the presumption that separate property becomes marital property when placed in joint names rebuttable? Case References: A. Field v. Fields, 72 AD3d 655, 898 NYS2nd 605 (2nd Dept. 2010) B. Hartog v. Hartog, 85 N.Y.2d 36; 647 N.E.2d 749; 623 N.Y.S.2d 537 C. Kirshenbaum v. Kirshenbaum, 203 A.D,2d 534, 535 (2❑d Dept. 1994) D. Lischynsky v. Lischynsky, 501, N.Y.S.2d 938 (3rd Dept. 1986) E. Lolli-Ghetti, 165 AD2d 426 (1991) F. Murray v. Murray, 101 A.D.3d 1320, 956 N.Y.S.2d 252 NY (2012) G. P.D. v. L.D., 28 Misc.3d 1232(A), 958 N.Y.S.2d 62 N.Y. Sup. (2010) H. Popowich v. Korman, 73 AD2d 515, 900 NYS2d 297 (1st Dept. 2010) I. Pullman v. Pullman, 176 AD2d 113 (1st Dept. 1991) J. Richter v. Richter, 77 AD3d 1470, 908 NYS2d 518 (4th Dept. 2010) K. Signorile v. Signorile, 102 A.D.3d 949, 958 N.Y.S.2d 476 NY (2013) L. Spera v. Spera, 71 A.D.3d 661 898 N.Y.S.2d 548 (2010) M. Stahl v. Stahl, 914 NYS2d 447 (3rd Dept. 2011) N. Tsigler v. Kasymova, 73 AD3d 1159, NYS2d 674 (2nd Dept. 2010) 0. Vanyo v. Vanyo, 79 AD3d 1751, 914 NYS2d 492 (4th Dept. 2010) P. Verilli v. Verilli, 172 A.D.2d 990 (1991) A. Vertucci v. Vertucci, 103 A.D.3d 999, 962 N.Y.S.2d 382 (2013) B. Wiercinski v. Wiercinski, 116 Ad2d 789 (1986) C. Zacharek v. Zackarek, 116 A.D.2d 1004 (1986) 1 Illustrations: Scenario 1 A. Spouse has premarital property. B. During the marriage spouse sells their premarital property for $100,000 and deposits it into joint account with $500,000 in it. C. Other than interest, no additional deposits are made into the account and the balance remains well above $100,000. D. One month later, spouse transfers $100,000 to an account in.their name only. E. Is the $100,000 separate or marital property? Case reference: P.D. v L.D., 28 Misc 3d 1232(a), 2010 NY Slip OP 51574(U), 2010 WL Scenario 2 A. Same facts as above, but just prior to the sale of separate property joint account has a balance of $100,000. B. Shortly after deposit of separate property, $50,000 of marital earnings is deposited into account. So the account balance is now $250,000. C. Over the subsequent two weeks, $150,000 of marital expenses/debt is paid. So the balance of the account is now $100,000. D. The next week the spouse transfers $100,000 to a separate account. E. Is the $100,000 separate? Case reference: Spera v Spera, 71 AD3d 661,898 NYS2d 548 (2d Dept. 2010) Scenario 3 A. Same facts as number 1 above, but rather than depositing the $100,000 into a separate account, a marital residence is purchased and a $100,000 down payment is made towards the purchase price. B. Is the $100,000 transmuted into marital property? Case reference: Richter v Richter, 77 AD3d 1470, 908 NYS2d 518 (4th Dept. 2010) 2 Sample Preliminary Information Request for Financial Asset Tracing Matter: Copies of individual Federal and state income tax returns, including amended tax returns; 2. Copies of any financial statements or applications submitted to any bank or lending institutions for the purpose of obtaining credit; 1. All personal and business bank and/or brokerage account statements, along with cancelled checks and deposit slips; 2. Copies of any retirement, pension and profit sharing plans, and annual statements of contributions and accrued benefits; 3. All credit card bills paid personally or through a business; 4. Should there be an ownership interest in a business: a. Corporate or partnership tax returns, including amended tax returns and revenue agent reports from taxing authority regarding audit findings; b. Annual and interim financial statements audited, reviewed, or compiled by the businesses' independent accountant, or financial statements prepared for management purposes; c. Copies of any stockholder, partnership, buy/sell, non compete or similar agreements; d. The companies' original books and records, including i. General ledger ii. Cash receipts journal iii. Cash disbursements journal iv. Should the businesses maintain a computerized accounting system (i.e., QuickBooks, Quicken, etc.) please provide a back up copy of the data file along with the program name and any required usernames and passwords e. Minute books and stock registers; 3 7. Copies of property leases for both real and personal property, including but not limited to leased premises and auto leases; 4 HOW TO TRY AN EQUITABLE DISTRIBUTION CASE Sponsored by the New York County Lawyers’ Association Presented by the New York College of Matrimonial Trial Attorneys (www.nytrialcollege.com) May 20, 2014 and May 21, 2014 STATEMENT OF FACTS Amanda Smith has an MBA from Wharton, and Robert Smith has a degree in Architecture from the University of Massachusetts. Ms. Smith was an investment advisor at JP Morgan Chase for 7 years and won an in-house award for her skills as a stock trader. She left her job at JP Morgan Chase soon after marrying Robert Smith in 2003 when she became pregnant with twins. Ms. Smith has not worked outside of the house since 2003, except on occasion she manages, on a part-time basis, two stock portfolios, including the portfolio of a friend and the portfolio of Mr. Smith’s brother, Evan. Ms. Smith earns 1% of total value of each portfolio that she manages. After a long illness, Ms. Smith’s mother, Hannah Cohen, dies in January 2005. Ms. Cohen’s estate consisted of $75,000 in cash, as well as jewelry, and the house that Ms. Smith grew up in, located at 125 Main Street. When Ms. Smith inherited the house on Main Street, it was in terrible shape. The roofing, kitchen and bathrooms needed to be redone. Mr. and Ms. Smith made some modest improvements to the house using Mr. Smith’s relationships with various contractors and subcontractors. Mr. Smith was architect of record on the kitchen redesign, but had no involvement in the roofing and bathroom work. Ms. Smith found the roofer from her best friend, 1 Rebecca. The property sold for $1,002,000 in December of 2005. Mr. Smith found the buyers by networking with friends and acquaintances. There was a mortgage on the house of $200,000, and the net proceeds to Ms. Smith from the sale were $800,000. Ms. Smith deposited the $800,000 into Chase checking account xxx5678 on December 31, 2005. That account was opened by Ms. Smith before the marriage. There was $100,000 in the account that was the undisputed separate property of Ms. Smith before the $800,000 deposit. From January 2006 – February 2009, there was $1,000 of unknown deposits into Chase account xxx5678. The $900,000 remained in the Chase xxx5678 account from December 31, 2005 to February, 2009. In February 2009, Ms. Smith transferred the full $800,000 from Chase xxx5678 to her Fidelity xxxabc-123 account. As of February 1, 2009, Ms. Smith’s Fidelity account held $50,000 which was undisputedly her separate assets. From February of 2009 to June 2010, there was $75,000 of deposits of unknown sources into this Fidelity account, as well as $6,750 of mark-to-market gains, and $1,000 of interest earned. In February 2010, Ms. Smith transferred $800,000 into the parties’ joint Morgan Stanley account xxx-007. Ms. Smith contends that she transferred $800,000 into the parties’ Morgan Stanley account on reliance of the parties’ understanding that they would use the money to purchase the property located at 456 Country Road, Paradise, NY. Mr. Smith disagrees, and maintains that this money was transferred as a hedge against Ms. Smith’s aggressive trading of marital investments in the Morgan Stanley account, even though he told her to stop trading so aggressively. 2 From February 2010 – June 2010 the parties’ marital JP Morgan account earned $2,500 of interest and there was an additional $75,000 of deposits from marital earnings. In April 2010, the parties signed a contract to purchase the home in Paradise, N.Y., and $160,000 was wired from the Morgan Stanley account to a real estate attorney in furtherance of the purchase. In June 2010, an additional $640,000 was also wired to the same attorney representing the amount due at closing. From February 2010 to June 2010, $750,000 was deducted from this joint Morgan Stanley account to cover margin losses resulting from trading of securities by Ms. Smith. Mr. Smith maintains that he told Ms. Smith’s to stop trading so aggressively, and had no idea that she caused them to lose $750,000. Ms. Smith maintains that Mr. Smith had always encouraged her to trade as she saw fit, and that it is not her fault that the market dropped during this period. From February 2010 to June 2010, checks for living expenses were written from this same joint Morgan Stanley account. As of June 2010, the amount remaining was $127, 500. Ms. Smith seeks $800,000 in separate property credit from the sale of the home on Main Street, and Mr. Smith maintains the $800,000 is marital monies. He also seeks credit for $750,000 for wasteful dissipation as a result of MS. Smith’s unauthorized trading practices. In pretrial discovery, RS was asked to provide financial records he kept on his computer. He claimed he could not comply with this discovery request because “his wife had guessed the password on his encryption software and changed the password without his knowledge.” Ms. Smith claims to have no knowledge of this. 3 ________ ABC File 02942 May 5, 2014 Ms. Jane Eagle, Esq. Legal Eagle P.C. 8910 Main Street, Suite 5678 New York, NY 12345 Mr. Harold Justice Justice & Justice, LLC 456 Gotham Avenue, Suite 200 New York, New York, 12345 RE: SMITH V. SMITH – INDEX NO. 12345/13 Dear Counselors: Pursuant to our retainer agreement dated December 10 , 2013 ABC Valuation, LLC (hereafter “ABC”) was retained by Mr. Robert Smith and Ms. Amanda Smith, as neutral financial experts, to perform the following tasks: 1. Identify proceeds from the sale of Ms. Smith’s property located at 123 Main Street, New York, NY which Ms. Smith owned prior to the parties’ marriage. 2. Trace the disposition of the proceeds from the above noted property. Our analysis covered the period from January 2003 through April 30, 2010. This report is based, in part, upon documents and information produced to us in connection to the above referenced litigation, and is subject to the accuracy of such documents and information. If and to the extent that different or additional documents or information are produced, ABC Valuation, LLC, reserves the right to supplement or amend this report and the opinions and conclusions herein, accordingly. Ms. Jane Eagle, Esq. Re: Smith v. Smith May 5, 2014 Page 2 of 6 This report is subject to the Statement of Limiting Conditions attached hereto. In addition, this analysis has been prepared for use only in connection with this particular matter, and is not to be disseminated to any other parties not involved with this matter, or used for any other purpose without the express written consent of ABC Valuation, LLC. BRIEF OVERVIEW Prior to the parties’ marriage on January 31, 2003, Ms. Smith’s mother owned and occupied the property located at 123 Main Street, New York, NY. In or around January 2005 Ms. Smith’s mother passed and, pursuant to her mother’s will, Ms. Smith inherited the above noted property. In or around February 2005, Ms. Smith made certain repairs to the home in order to get it ready for sale. The repairs cost $75,000. Monies used for the repairs came from an account Ms. Smith inherited from her mother upon her passing. On December 31, 2005, Ms. Smith sold this property and received net proceeds totaling $800,000 and deposited said proceeds into her own personal account. A copy of the closing statement is presented herein as Exhibit 1. In or around June 2010 Ms. Amanda Smith and her husband, Mr. Robert Smith purchased their home located at 456 Country Road, Paradise, NY for a purchase price of $1.6 million. Ms. Smith states the amount paid at the closing for this property, in the amount of $800,000, came from the sale proceeds of her mother’s home as discussed above. As stated on page one of this report, we have been asked to trace the disposition of the above monies totaling $800,000 which Ms. Smith is claiming as her separate property. In connection with our engagement we have been provided with and reviewed the following accounts: Ref Institution Account Type Account No. Account Owner 1 Chase Checking 44445678 Amanda Smith 2 Fidelity Investment ABC-123 Amand Smith 4 Morgan Stanley Invest/Checking XXX-007 Robert and Amanda Smith DISPOSITION OF PROCEEDS FROM 123 MAIN ST. NY, NY 1. In December 2005, Ms. Smith deposited proceeds totaling $800,000 in her Chase Checking account No. 44445678. These proceeds were from the sale of 123 Main Street, NY, NY. 2. In February and March 2009, Ms. Smith deposited monies, totaling $800,000, into her Fidelity Investment Account No. ABC-123. Ms. Jane Eagle, Esq. Re: Smith v. Smith May 5, 2014 Page 3 of 6 3. In February 2010 Ms. Smith deposited $800,000 into the parties’ Morgan Stanley Account No. XXX-007. 4. In April 2010 Mr. Robert Smith and Ms. Amanda Smith put a down payment deposit towards the purchase of a home located at 456 Country Road, Paradise, NY, in the amount of $160,000. 5. In June 2010 Mr. Robert Smith and Ms. Amanda Smith closed on the purchase the home located at 456 Country Road, Paradise, NY, and paid $640,000 at the closing. 6. Accordingly, total deposit plus amount paid at closing was $800,000 ($160,000 + $640,000) money paid at the closing totaled $800,000. DETAILED TRACING ANALYSIS OF ACCOUNTS We have analyzed the accounts listed below for the period December 1, 2005 through June 30, 2010. 1. Amanda Smith’s Chase Checking Account No. 44445678 (ABC Ref 1) Beginning Balance - 12/01/05 $ 100,000 Add: Sale of 123 Main Street 800,000 Add: Unknown Deposits 1,000 Less: Transfer to Fidelity ABC-123 (800,000) Less: ATM Withdrawals (10,000) Less: Debits /Checks Paid (50,000) Ending Balance - 6/30/10 $ 41,000 a. As of December 1, 2005 Ms. Smith’s Chase Checking account had a balance of $100,000. It is undisputed that the $100,000 was Ms. Smith’s separate funds. b. In late December 2005 Ms. Smith Deposited $800,000 into her Chase account which was from the proceeds from the sale of her deceased mother’s home. c. From January 2006 through February 2009, there were unknown deposits made into this account totaling $1,000. Ms. Jane Eagle, Esq. Re: Smith v. Smith May 5, 2014 Page 4 of 6 d. From December 2005 through June 2010 there were ATM withdrawals taken from this account totaling $10,000. e. From December 2005 through June 2010 there were checks written from this account totaling $50,000. f. In February and March 2009 Ms. Smith transferred $300,000 and $500,000, respectively, into her Fidelity Account No. ABC-123. g. The balance of Ms. Smith’s Chase account, as of June 2010, was $41,000. h. A detailed tracing of this account for the period December 1, 2005 through June 30, 2010 is presented as Exhibit 2. 2. Amanda Smith’s Fidelity Investment Account No. ABC-123 (ABC Ref 2) Beginning Balance - 2/1/09 Add: Transfer from Chase 44445678 Add: Other Deposits $ 50,000 800,000 75,000 Add: Mark to Market Gains 6,750 Add: Interest 1,000 Less: Transfer to MS XXX-007 Ending Balance - 6/30/10 (800,000) $ 132,750 a. As of February 1, 2009 Ms. Smith’s Fidelity investment account had a balance of $50,000. It is undisputed that the $50,000 was Ms. Smith’s separate funds. b. In February and March 2009 Ms. Smith transferred $300,000 and $500,000, respectively, from her Chase Checking Account No. 44445678 into this Fidelity Account No. ABC-123. c. From February 2009 through June 2010 there was $75,000 1 of deposits in addition to the transfers noted above. d. From February 2009 through June 2010 there was $6,750 of investment gains within this account. 1 As of the writing of this report, the source of funds for these deposits remains unknown. Ms. Jane Eagle, Esq. Re: Smith v. Smith May 5, 2014 Page 5 of 6 e. From February 2009 through June 2010 there was $1,000 of interest earned within this account. f. In February 2010 Ms. Smith transferred $800,000 into the parties joint Morgan Stanley Account No. XXX-007. g. The balance of Ms. Smith’s Fidelity account, as of June 2010, was $132,750. h. A detailed tracing of this account for the period February 1, 2009 through June 30, 2010 is presented as Exhibit 3. 3. The Parties’ Morgan Stanley Account No. XXX-007 (ABC Ref 3) Beginning Balance -2/1/10 Add: Transfer from Fidelity ABC-123 Add: Other Deposits Add: Interest $ 825,000 800,000 75,000 2,500 Less: Wire Transfers ($160,000 + $640,000) (800,000) Less: Deduction to cover Margin Losses (750,000) Less: Checks (25,000) Ending Balance - 6/30/10 $ 127,500 a. As of February 1, 2010 the parties’ joint Morgan Stanley account had a balance of $825,000. It is undisputed that the $825,000 was marital monies. b. In mid February Ms. Smith transferred $800,000 from her Fidelity Account No. ABC-123 into this Morgan Stanley Account No. XXX-007. c. From February 2010 through June 2010 there was $75,000 of deposits into this account other than the transfer noted above. The sources of funds for these deposits are marital earnings. d. From February 2010 through June 2010 there was $2,500 of interest earned within this account. e. In April 2010 $160,000 was wired to a real estate attorney for a deposit on a home the parties were purchasing. f. In June 2010 $640,000 was wired to a real estate attorney representing the amount due at closing for a home purchased at 456 Country Road, Paradise, NY. Ms. Jane Eagle, Esq. Re: Smith v. Smith May 5, 2014 Page 6 of 6 g. From February 2010 through June 2010 $750,000 was deducted from this account to cover margin losses. h. From February 2010 through June 2010 there were checks for living expenses written from this account totaling $25,000. i. The balance of the joint Morgan Stanley account, as of June 2010, was $127,500. j. A detailed tracing of this account for the period March 1, 2010 through June 30, 2010 is presented as Exhibit 4. This report is subject to the Statement of Limiting Conditions attached hereto. In addition, this analysis has been prepared for use only in connection with this particular matter, and is not to be disseminated to any other parties not involved with this matter, or used for any other purpose without the express written consent of ABC Valuation, LLC. Sincerely yours, ABC VALUATION Harold Abacus ________________________________ HAROLD ABACUS, CPA EXHIBIT 1 CLOSING STATEMENT Seller: Amanda Smith Buyer: Ima Borrower Premises: 123 Main Street New York, NY 10001 Closing Date: December 31, 2005 FINANCIAL STATEMENT Purchase Price Credit to Seller $1,002,000 Contract Deposit Credit to Buyer $100,000 Total Credits ___________________ $1,002,000 Balance Due Seller $902,000 ___________________ $100,000 The amount due seller of $ 902,000 was paid as follows: 1. Wells Fargo Home Mortgage Re: Seller’s Payoff of Mortgage $200,000 2. Ms. Amanda Smith Seller’s Proceeds $700,000 3. Title Insurance Company Re: State Transfer tax Re: Recording charges Total $ 1,500 $ 500 ___________________ $902,000 EXHIBIT 2 Smith vs Smith Account Analysis Summary of Monthly Account Activity (REF 1) Chase Bank Account No. 44445678 Amanda Smith 2005 Beginning Balance $ Deposit Transfer In 800,000 - ATM Withdrawals Checks Withdrawals Transfer Out Miscellaneous Fees (1,195) - Ending Balance 2006 Beginning Balance $ Deposit Transfer In $ February 897,055 $ - (400) (1,350) - March 896,830 100 - (225) - $ April 896,930 $ - (A) - May 896,345 $ - (250) (335) - (250) (445) - June 895,650 $ July 894,515 - - (1,135) - (650) (1,665) - $ August 892,200 $ (650) (660) - September 890,890 $ October 890,890 $ November 889,125 - - - - (1,765) - (2,350) - $ 898,805 $ December 886,775 (800) (650) - $ 897,055 $ 896,830 $ 896,930 $ 896,345 $ 895,650 $ 894,515 $ 892,200 $ 890,890 $ 890,890 $ 889,125 $ 886,775 $ 885,325 $ January 885,325 $ February 884,460 $ March 883,960 $ April 883,960 $ May 882,910 $ June 882,265 $ July 879,705 $ August 879,060 $ September 878,765 $ October 878,740 $ November 877,930 $ December 877,445 2007 Beginning Balance Deposit Transfer In - ATM Withdrawals Checks Withdrawals Transfer Out Miscellaneous Fees Ending Balance January 898,805 - ATM Withdrawals Checks Withdrawals Transfer Out Miscellaneous Fees Ending Balance December 100,000 - (400) (465) $ 884,460 - (500) $ 883,960 - $ 883,960 - (750) (300) $ 882,910 (645) $ 882,265 $ - 300 - (2,560) - (300) (645) - 879,705 $ 879,060 - (A) - (295) $ 878,765 - (25) $ 878,740 - (675) (135) $ 877,930 (485) $ 877,445 $ Total (B) $ $ $ $ $ $ $ (1,195) - Total $ $ $ $ $ $ $ 100 (3,000) (10,580) - Total - $ $ (5,520) - $ $ $ $ $ 871,925 800,000 - 300 (2,625) (11,075) - EXHIBIT 2 2008 Beginning Balance $ Deposit Transfer In March 870,610 $ - (300) (245) - April 870,145 $ - (225) (240) - (940) - May 869,205 $ June 867,645 - - (1,350) (210) - (2,400) - $ July 865,245 $ - August 864,745 $ - (500) - September 863,285 $ - (1,460) - October 863,060 $ - (225) - November 863,020 $ - (40) - December 862,920 550 - (100) - (5,600) - 871,155 $ 870,610 $ 870,145 $ 869,205 $ 867,645 $ 865,245 $ 864,745 $ 863,285 $ 863,060 $ 863,020 $ 862,920 $ 857,870 $ January 857,870 $ February 855,370 $ March 554,120 $ April 53,295 $ May 52,345 $ June 52,095 $ July 48,415 $ August 47,515 $ September 47,515 $ October 47,265 $ November 47,165 $ December 47,165 - ATM Withdrawals Checks Withdrawals Transfer Out Miscellaneous Fees - (2,500) - (1,250) (300,000) - (175) (650) (500,000) - (D) - - (100) (850) - (D) - (250) - 855,370 $ 554,120 $ 53,295 $ 52,345 $ 52,095 $ 48,415 $ January 47,165 $ February 46,815 $ March 45,700 $ April 44,100 $ May 41,600 $ June 40,950 Deposit Transfer In - ATM Withdrawals Checks Withdrawals Transfer Out Miscellaneous Fees (100) (250) $ 46,815 UNKNOWN Proceeds from Sale of Home - December 2005 Transfer to Fidelity Account No. ABC-123 (REF 2) $ - - - (100) (1,015) - (1,600) - (2,500) - 45,700 $ 44,100 $ 41,600 (650) $ 40,950 - (1,550) (2,130) - $ 2010 Beginning Balance (A) (B) (C) $ $ Deposit Transfer In Ending Balance February 871,155 - (770) - 2009 Beginning Balance Ending Balance $ - ATM Withdrawals Checks Withdrawals Transfer Out Miscellaneous Fees Ending Balance January 871,925 $ - (900) $ 47,515 - $ 47,515 - (250) $ 47,265 (100) $ 47,165 $ Total (A) $ $ $ $ $ $ $ - $ $ - - $ $ $ $ $ $ (2,100) (12,505) - Total - 47,165 550 - (2,075) (8,630) (800,000) - 47,165 Total - $ $ - - $ $ $ $ $ (200) (6,015) - 40,950 EXHIBIT 3 Smith vs Smith Account Analysis Summary of Monthly Account Activity (REF 2) Fidelity Investment Account No. ABC-123 Amanda Smith 2009 Beginning Balance $ Deposit Transfer In Interest 4,412 300,000 8 ATM Withdrawals Checks Withdrawals Transfer Out Mark to Market 2010 Beginning Balance $ Deposit Transfer In Interest January 905,958 4,412 500,000 16 (B) 906,873 Transfer from Chase Account No. 44445678 (REF 1) Transfer to Morgan Stanley Account No. XXX-007 (REF 3) $ (B) 2,550 April 862,922 $ May 865,713 $ June 868,325 $ November 898,979 (1,654) (1,855) (2,550) 5,803 1,659 - 3,351 (1,540) 870,243 $ February 906,873 $ March 110,773 $ April 116,373 $ May 122,871 $ June 126,941 4,412 74 4,411 78 1,114 2,009 $ October 891,150 4,412 64 $ 116,373 $ 4,412 66 868,325 $ September 886,652 4,411 62 $ 110,773 $ 4,412 62 865,713 $ August 880,519 4,412 61 $ (C) $ 4,411 57 862,922 (800,000) (584) July 870,243 4,412 55 $ 4,412 72 $ 4,412 33 355,944 (3,562) $ March 355,944 $ 4,412 65 ATM Withdrawals Checks Withdrawals Transfer Out Mark to Market (B) (C) $ 1,524 Ending Balance Ending Balance February 50,000 122,871 4,412 78 (420) $ 126,941 $ $ 880,519 $ 886,652 25 $ 891,150 $ 898,979 $ 901,915 $ December 901,915 4,411 72 (440) $ Total $ $ $ 48,529 800,000 556 $ $ $ $ $ 6,873 905,958 Total 4,412 77 $ $ $ 26,471 444 1,320 $ $ $ $ $ (800,000) (123) 132,750 EXHIBIT 4 Smith vs Smith Account Analysis Summary of Monthly Account Activity (REF 3) Morgan Stanley Account No. XXX-007 Amanda Smith and Robert Smith JTWROS 2010 Beginning Balance $ February 825,000 Deposit Transfer In Interest 15,000 800,000 275 ATM Withdrawals Checks Withdrawals Transfer Out Margin Costs Ending Balance (B) (C) (D) $ (B) (4,500) (156,000) $ 1,479,775 Transfer from Fidelity Investment Account No. ABC-123 (REF 2) Wire Out - Downpayment on House Wire Out - Home Purchase, 456 Country Road, Paradise, NY $ March 1,479,775 $ April 986,753 $ May 790,012 $ June 756,079 Total 15,000 728 15,000 449 15,000 592 15,000 456 $ $ $ 75,000 800,000 2,500 (7,800) (500,950) (65) (160,000) (52,125) (8,600) (40,925) (4,035) (640,000) - $ $ $ $ $ (25,000) (800,000) (750,000) 986,753 $ 790,012 (C) $ 756,079 $ 127,500 (D) Mission The New York College of Matrimonial Trial Attorneys was founded in 2013 by a group of prominent New York attorneys to provide legal education programs in the area of trial practice and matrimonial law. Our programs are designed for attorneys who practice in the area of matrimonial law and focus on the nuts and bolts of trial practice. Our faculty consists of former Supreme Court Justices, bar association leaders, and award winning attorneys. Faculty Dror Bikel – Founder and Program Director Founding Partner, Bikel & Mandarano, LLP Co-Chair of Matrimonial Section of New York County Lawyers’ Committee, 2012- Present Member of Family Law Advisory Committee, Benjamin N. Cardozo School of Law Honored with New York Super Lawyers Award T: (212)682-6222 www.bikellaw.com Harold B. Beeler Law Office of Harold B. Beeler Justice of the Supreme Court of the State of New York, 1988-2009 Honored with New York Super Lawyers Award www.haroldbeeler.com T: (212)687-3822 Briana Denney Founding Partner, Newman & Denney, P.C. Court Attorney, Hon. Rosalyn Richter, 2006-2008 Co-Chair of Matrimonial Section of New York County Lawyers’ Committee, 2011- Present Co-Chair of New York Women's Bar Association Matrimonial and Family Law Committee, 2009-2011 www.newmandenney.com T: (212)486-3200 Saralee Evans Founding Partner, Siegel Teitelbaum & Evans, LLP Justice of the Supreme Court of the State of New York, 1993 - 2011 www.stellp.com T: (212)455-0300 Steven J. Mandel Founding Partner, The Mandel Law Firm www.mandellawfirm.com T: (212)697-7383 Frederic P. Schneider Partner, Ballon Stoll Bader & Nadler, P.C. Co-Chair of Matrimonial Section of New York County Lawyers’ Committee, 2009- 2012 Secretary of the Family Court Advisory Committee to the Appellate Division, First Judicial Department. www.ballonstoll.com T: (212)575-7900 Sandra L. Schpoont Founding Partner, Schpoont & Cavallo, LLP Honored with New York Super Lawyers Award www.schpoontcavallo.com T: (212) 792-6070 Judith E. White Founding Partner, Garr and White, P.C. Principal Court Attorney, Hon. Laura Drager, 1996-2005 Honored with the Best Lawyers in America Award Honored with New York Super Lawyers Award www.garrandwhite.com T: (212)750-1333 Jamie L. Weiss Partner, Teitler & Teitler, LLP Member of Family Law Advisory Committee, Benjamin N. Cardozo School of Law Adjunct Faculty, Benjamin N. Cardozo School of Law T: (212)930-3607 www.teitler.com Elliot J. Wiener Partner, Phillips Nizer, LLP Member of Executive Committee, Family Law Section of the New York State Bar Association Co-Chair of Matrimonial Section of New York County Lawyers’ Committee, 2006-2009 Past Co-Chair of the Interdisciplinary Forum on Mental Health and Family Law Honored with Best Lawyers in America Award Honored with New York Super Lawyers Award Fellow, American Academy of Matrimonial Lawyers www.phillipsnizer.com T: (212)841-0726 Andrea Ziegelman Founding Partner, Moses & Ziegelman, LLP Honored with the Best Lawyers in American Award Honored with New York Super Lawyers Award Board Member, American Academy of Matrimonial Lawyers www.mzllp.com T: (212)354-0808 Dror Bikel is a trial lawyer and litigator specializing in the area of family law and questions related to custody, equitable distribution, child and spousal support, and paternity. Mr. Bikel graduated from the Benjamin N. Cardozo School of Law, Brandies University and is a founding partner of the Manhattan based firm, Bikel & Mandarano, LLP. He lectures to lawyers and mental health professionals in the area of trial practice and family law. As winner of the New York Super Lawyers award, Mr. Bikel has been voted by his peers and legal journalists as one of the top 5% family law attorneys in New York State. Hon. Harold B. Beeler served as an acting New York Supreme Court Justice in Manhattan from 1991 to 2009. Prior to his appointment as a Supreme Court Justice, he was elected as a Judge in the Civil Court of the City of New York three times, serving from 1988 to 2009. Judge Beeler also worked as a Law Clerk for Judge Lawrence Bernstein and at the Legal Aid Society of New York as a staff attorney. He was selected for inclusion in the 2010 and 2011 New York Super Lawyers Listing. Judge Beeler obtained his J.D. from Harvard Law School and his B.A. from the University of Michigan, and an LL.M. in taxation from New York University School of Law. In December 2009, he retired from his position on the bench to pursue a full-time career as a mediator and arbitrator with National Arbitration and Mediation (NAM). Briana Denney is a matrimonial attorney in private practice. Prior to entering private practice, Briana Denney was a court attorney for a matrimonial judge in New York County. She currently serves as co-chair of the Matrimonial Law Section of the New York County Lawyers Association and was co-chair of the New York Women's Bar Association Matrimonial and Family Law Committee from 2009 to 2011. She is co-Chair of NYCLA’s Matrimonial Law Section and a graduate of City University of New York Law School at Queens College. Saralee Evans is a retired Justice of the New York State Supreme Court. She was elected to the Civil Court of the City of New York in 1993 and served on the Civil and Supreme Courts for the next eighteen years, presiding over a broad range of cases including matrimonial, contract, tort, property, labor law and litigation brought against the City of New York. Her final seven years as a judge were devoted exclusively to matrimonial law. Ms. Evans stepped down from the bench on December 31, 2011. In February 2012, Saralee became a founding partner in the firm of Siegel Teitelbaum & Evans, LLP where she practices matrimonial law. Although in her practice Ms. Evans emphasizes alternative dispute resolution, including mediation and arbitration, she also litigates appropriate divorce and custody cases. Prior to her election to the Civil Court, Saralee worked in the public interest sector. She was a staff attorney for the Queens Legal Services Corporation for seven years where her practice consisted of representing indigent people who faced difficulty with housing, employment, discrimination, immigration, and family issues. Later, Sarelee was made the Director of the West Side SRO Law Project. Ms. Evans is a graduate of Hofstra University School of Law and a member of the Matrimonial Committee of the Association of the Bar of the City of New York. She has previously served on the Bar Association’s Civil Rights and Housing Court Committees. She was an adjunct professor at CUNY Law School and has participated in Continuing Legal Education programs at the New York State Bar Association, the New York County Bar Association and the Association of the Bar of the City of New York. Jonathan Gould, Ph.D., ABPP, is a forensic psychologist engaged in trial consultation, work product review, and evaluation services to family law attorneys and evaluation services to the court. He is author of the book, “Conducting Scientifically Crafted child Custody Evaluations” (2nd edition) and co-author of the book, “The Art and Science of Child Custody Evaluations” (with David Martindale, Ph.D., ABPP). He has author or co-authored more than 50 peer reviewed publications in the child custody area and presents workshops and seminars across the country to attorneys, judges, and mental health professionals about matters related to child custody assessment and social science research. David L. Gresen, CPA/ABV/CFF, CFE assists the courts and attorneys in engagements involving business valuations, financial asset tracing, forensic accounting, enhanced earnings calculations, lifestyle analysis and damage claims. Mr. Gresen has a diversified background in litigation consulting, accounting and auditing and has provided expert testimony in connection with a variety of contested matters. He is frequently court-appointed as a financial expert. Prior to joining Klein Liebman & Gresen, LLC, he worked in the Litigation Consulting and Bankruptcy Services department for a large regional CPA firm, following several years as a senior accountant on the audit staff of a national CPA firm. A Certified Public Accountant, Mr. Gresen holds a B.A. from SUNY Oswego and an M.S. in Public Accounting from Long Island University, CW Post Campus. He has also earned the American Institute of Certified Public Accountants’ ABV designation (Accredited in Business Valuation) and CFF designation (Certified in Financial Forensics). In addition, Mr. Gresen is a Certified Fraud Examiner (CFE). Mr. Gresen is a member of the American Institute of Certified Public Accountants, New York State Society of Certified Public Accountants, and Association of Certified Fraud Examiners. Steven J. Mandel, The Mandel Law Firm, practices in the area of family law, divorce, child custody and support, gay and lesbian family law, domestic violence, grandparents’ rights and immigration. Steve enjoys frequent guest appearances as an expert legal analyst on Court TV and NBC's Celebrity Justice. He's also appeared in national feature stories on Dateline NBC, CBS' 48 Hours, Geraldo, and CNN's On The Money. All major New York newspapers have quoted him extensively as an authoritative source on various legal matters. Steve is also on the Board of Directors and Chief Legal Counsel for Ed Randall's Fans for the Cure to fight prostate cancer. Steven is a graduate of Adelphi University with honors, and received his law degree from the Benjamin N. Cardozo School of Law. In 2011, he was awarded the Martindale Hubbell AV Preeminent Rating – the highest possible Peer Review Rating for those that have been recognized by their peers and judges to be the best in both legal ability and ethical practice. Frederic P. Schneider became a member of Ballon Stoll Bader & Nadler, P.C. in 2011. Mr. Schneider, with his impressive almost thirty-five years of experience in all aspects of Supreme Court, Family Court and Appellate practice in all areas related to New York Family and Matrimonial Law, heads the firm's Matrimonial and Family Law Department. Prior to joining Ballon Stoll Bader & Nadler, P.C., he successfully headed his own specialized law firm in New York City and was previously a prosecutor in the Kings County District Attorney's office. Mr. Schneider has tried many jury and non-jury cases and is a well-known appellate litigator in the State Appellate courts. He is an active member of the New York City Bar Association and the New York County Lawyers Association where he has been a member of their matrimonial and family law committees. Mr. Schneider has served as Chair of committees at both bar associations. Mr. Schneider received his B.A. from Columbia College and his J.D. from the New York University School of Law. For more than twenty years, he has served as Secretary of the Family Court Advisory Committee to the Appellate Division, First Judicial Department. Mr. Schneider is also qualified by the Appellate Division to represent children in the Supreme and Family courts of New York County and in the Appellate Division, First Department. Mr. Schneider has lectured extensively on litigation techniques, defense strategies, family, matrimonial and juvenile law for the State and City Bar Associations, as well as for the Appellate Divisions of the First and Second Judicial Departments of New York State. Sandra L. Schpoont graduated with honors from the University of Michigan in 1977 and earned her Juris Doctorate at Northeastern University School of Law in 1982. Ms. Schpoont began her career at Lans Feinberg and Cohen, a boutique matrimonial firm, where she first became acquainted with family law practice. She then left private practice to become a staff attorney with the Juvenile Rights Division of the Legal Aid Society, where she handled a wide range of family law matters on behalf of children. In 2001 Ms. Schpoont started her own firm handling all areas of family law. As a partner at Schpoont & Cavallo, LLP, Ms. Schpoont concentrates her practice in the areas of family and matrimonial law and litigation. For many years her practice has included custody, visitation, equitable distribution and support matters as well as negotiation and drafting of pre and post-nuptial agreements and settlement agreements. She also has broad experience in child support, domestic violence, neglect and abuse matters. Sandra is certified in the First Department as an attorney for the child in hotly contested disputes over custody and visitation thereby making her uniquely qualified to work with parents litigating child custody arrangements. Ms. Schpoont is a member of the New York State Bar Association Family Law Section, the Association of the Bar of the City of New York, having served on its Matrimonial Committee, the New York County Bar Association's Matrimonial Committee, the Family Law Section of the Brooklyn Bar Association, the Women's Bar Association of the State of New York and the Brooklyn Women's Bar Association and is a member of the Interdisciplinary Forum on Mental Health and the Law. She is on the faculty of the New York College of Matrimonial Trial Attorneys. Ms. Schpoont is admitted to practice law in the State of New York. Ms. Schpoont has been named to New York Super Lawyers 2011 an honor reserved for the top five percent of New York lawyers. Peter J. Theobald, ACE/AME is a Computer Forensics Examiner and leads TC Forensics, Inc., specializing in forensic computer examinations and data recovery. TC Forensics offers investigative services and expert advice on matters related to recovering hidden, destroyed, or lost data in connection with a wide variety of contested matters. Mr. Theobald has 24 years’ experience in computer network security and systems development. Mr. Theobald has been court appointed as a computer forensic expert in Nassau, Suffolk, and New York County. He received a Bachelor of Science, Computer Science from State University of New York at Buffalo. Judith White specializes in matrimonial and family law. She has been listed in “Best Lawyers” and New York Magazine Top Attorneys in New York, New Jersey and Connecticut. She received her BA, cum laude from University of Massachusetts at Amherst and a JD from Washington College of Law of American University. Jaime Weiss is a partner at Teitler & Teitler, LLP and has been practicing law for more than twenty years having started her career as a commercial litigator at Parker Chapin LLP (nowTroutman Sanders LLP) before focusing full time on family law as part of the family law department of Hogan & Hartson, LLP (now Hogan Lovells). Jaime has continued her focus on family law since joining Teitler & Teitler in 2007. Jaime graduated from Cornell University and the Benjamin N. Cardozo School of Law where she was the business editor of the Law Review. In addition to her legal practice, Jaime is a well-respected adjunct professor at the Benjamin N. Cardozo School of Law where she teaches a course entitled “Equitable Distribution.” In addition, Jaime is on Cardozo’s Family Law Advisory Board. She has also served on the New York City Bar Association’s Matrimonial Law Committee and is an active member of the Family Law Section of the New York State Bar Association. Elliot J. Wiener is the Chair of Phillips Nizer's Matrimonial & Family Law Department. A Fellow of the American Academy of Matrimonial Lawyers with over 30 years’ experience practicing family law, he concentrates his practice in the areas of matrimonial and family law including divorce, custody/visitation, support, and related matters. He has a particular interest in child custody and visitation issues and in trial work. Over the course of his career, Mr. Wiener has been the law guardian for hundreds of children in proceedings which span the entire range of family law. He also has extensive experience representing parents in child neglect and abuse proceedings. Mr. Wiener has represented numerous parties in adoption proceedings, including international adoptions. In a test case, he successfully challenged the adoptive subsidy system of the New York State Department of Social Services. In 2010, he was a participant in a course given by the FBI addressing International Parental Kidnapping. Before joining Phillips Nizer, Mr. Wiener was a partner with the law firm of Hall Dickler Kent Goldstein & Wood LLP in White Plains and New York City. Prior to that, he was a partner with the firm of Abbott, Duncan & Wiener in New York City and, for four years, he was a staff attorney with the Juvenile Rights Division of the New York City Legal Aid Society. He was also a clinical instructor of law at New York University School of Law in the early 1980s. Mr. Wiener earned his law degree from the State University of New York at Buffalo School of Law and his bachelor’s degree, magna cum laude, from Boston University.
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