Significant Cases of Bruce J. Wagner
Arthur v. Galletti, 2019 Westlaw 4769698 (2019)
The Appellate Division, First Department, upheld the award of custody to our client, the father, with permission for him to relocate to Italy with the children. The Appellate Division agreed with our client's argument that the trial court's directive that he return the children to New York by the younger child's 8th birthday, if the mother was still in New York, "impermissibly purports to alter the parties' custodial arrangement automatically upon the happening of a specified future event without taking into account the children's best interests at that time" and overturned that directive.
Matter of Ryan XX. v. Sarah YY., 2019 Westlaw 4308050 (2019)
The Appellate Division, Third Department, upheld the award of sole legal and physical custody to our client, the father and the affirmed Family Court's determination that the mother willfully violated the provisions of a prior order which accorded the father the right of first refusal to care for the child.
DiBella v. DiBella, 161 AD3d 1239 (2018)
The Appellate Division, Third Department, held that the mother, our client on appeal, "was deprived of her fundamental right to counsel," and granted her a new trial on the issues of custody, visitation and child support.
Wallace v. Wallace, 154 AD3d 1078 (2017)
The Appellate Division, Third Department, agreed with our arguments for the husband, our client on appeal, that "given the equal distribution of the business asset, the court should have equally apportioned the outstanding credit card debt and 401(k) loans- reportedly totaling approximately $125,000- that he incurred to directly support the business prior to the commencement of this action" and that he should be entitled to credit for any payments made after the action was commenced. The Court also ruled that the husband should have been credited for his premarital contributions toward the purchase of the marital home in 1999, and rejected all of the wife's requests for credits to her on appeal, for a 401(k) plan, college costs, and health insurance premiums.
Allard v. Allard, 145 AD3d 1254 (2016)
The Appellate Division, Third Department upheld the trial court’s decision to deny the former husband’s motion to force the former wife to sell a home conveyed to her under a 1989 separation agreement. On appeal, the Third Department affirmed the lower court’s finding that the former husband was seeking an opinion regarding a possible future event that has not yet occurred, and further determined that his claim was barred by the applicable statute of limitations.
Matter of Noel v. LePage, 133 AD3d 1129 (2015)
In affirming Family Court’s determination that it was in the best interests of the child to award primary physical custody to the mother, and to grant the mother permission to relocate with the child, the Appellate Division found that the mother initiated the child's regular medical and dental care, had arranged for daycare and preschool, purchased the child's clothes and provided all the transportation to allow the father to enjoy parenting time with the child. The Third Department agreed with Family Court that that the mother's flexible work schedule was more conducive to supporting the child once school started, and that relocation was in the child's best interests.
Matter of Vanita UU v. Mahender VV, 130 AD3d 1161 (2015)
The Appellate Division affirmed Family Court’s orders, which awarded the mother sole legal and physical custody of the child with supervised visitation to the father, granted her an order of protection, dismissed the father's violation petition, and denied his request for counsel fees. The Third Department found that Family Court's decision to award sole legal and physical custody of the child to the mother was supported by a sound and substantial basis in the record. As to the order of protection, the appellate court found legal support for Family Court's finding that the father committed a family offense. The Court noted that it was persuaded that the father’s violation petition was properly dismissed and that Family Court appropriately exercised its discretion in denying the father’s request for counsel fees.
Matter of Greene v. Robarge, 104 AD3d 1073 (2013)
In upholding a modification award which granted sole custody to the father, the Appellate Division disagreed with the contention of the mother and the attorney for the children that the testimony of the court-appointed forensic psychologist should have been stricken because her opinion was based in part upon information she obtained from Department of Social Services caseworkers who were not subject to cross-examination. The Court held that the “professional reliability exception” to the hearsay rule enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession. The Third Department found that the psychologist’s testimony met this criteria and that her opinion was principally based upon her extensive interviews with the parents and children.
Rinzler v. Rinzler, 97 AD3d 215 (2012)
The Appellate Division reversed Supreme Court and stated that there was good reason to allow the husband, who had started a fault-based divorce action in 2009, to commence a second divorce action under the no-fault law. The Court noted that the purpose of no-fault divorce is "to lessen the disputes that often arise between the parties and to mitigate the potential harm to them . . . caused by the current process" and that the legislative intent was to "reduce litigation costs and ease the burden on the parties in what is inevitably a difficult and costly process."
Halse v. Halse, 93 AD3d 1003 (2012)
The Appellate Division agreed with the wife's position that she should receive half of the husband's checking account, valued according to his sworn statement of net worth, given that the husband submitted no conclusive proof of a lower value. The Court also upheld the maintenance awarded to the wife, in the sum of $3,000 per month for 2 years and $2,500 per month for 3 years.
Mairs v. Mairs, 61 AD3d 1204 (2009)
The issues decided in favor of the wife included an appellate finding that the wife's contributions to her husband's medical career were both meaningful and significant, leading the court to increase the wife's share of the husband's medical license and practice to 25% (from the 15% awarded at trial). The Appellate Division also increased the wife's weekly maintenance award by 25%, granted increased child support and increased the amount of life insurance to be maintained by the husband to secure his court-ordered obligations.
Matter of Spencer v. Spencer, 10 NY3d 60 (2008)
New York aligned itself with all other states in its interpretation of the Full Faith and Credit for Child Support Orders Act(FFCCSOA) 28 USC 1738B, by holding that the New York Courts do not have subject matter jurisdiction to modify a Connecticut child support order which ends at age 18, so as to extend the duration of the order to New York's age 21, so long as one party or any of the children reside in Connecticut, the issuing state.
Howard v. Howard, 45 AD3d 944 (2007)
The life insurance which the trial court directs the payer spouse to maintain to secure his maintenance and property settlement obligations cannot exceed the combined value of the awards. A trial court may not provide a life insurance windfall to the payee spouse.
Matter of Welch v. Welch, 39 AD3d 910 (2007)
In a custody case, the Appellate Division reversed so much of Family Court's order as awarded joint physical custody with no principal residence of the child and set alternating two-week visitation, and modified the order to award primary physical custody to the mother and visitation to the father.
Golub v. Ganz, 22 AD3d 919 (2005)
Among the numerous issues decided., the Appellate Division rejected the husband's attempt to evade his marital fault and held that "defendant's adultery-- committed after the parties were married but before any judgment of divorce-- certainly fits within the parameters of the statute." Also addressing a significant separate property appreciation issue arising under the Price and Hartog cases, the Appellate Division found in favor of the wife and held that "Supreme Court correctly found that defendant failed in his burden of demonstrating that the appreciation in her [the wife's] premarital shares of the corporation's stock was due in part to her contributions or efforts."