*477The <mask> between the parties provided for custody in the wife and for the payment of $100 per month by the husband to the wife for the support of each of the three children of the marriage. In a following and separate paragraph the agreement also provides for the payment of the sum of $100'per month to the wife and uipon the youngest child reaching, his majority or emancipation the sum. of $200 a month to her.


The facts here are utterly unlike those in Matter of Seitz (262 N. Y. 32). There an ante-nuptial agreement required the husband to give Ms prospective wife $20,000, conditioned upon her surviving Mm six months subsequent to Ms death and payable by Ms executors six months after death. The Court of Appeals in effect held that the transfer was one made in contemplation of death, or intended to take effect in possession or enjoyment at or after the death of the husband. In the present case the payments under the <mask> were a continuing liability, as valid as rent due under a lease, wMch might extéhd beyo'nd the death of the lessee. There is no element here of any new benefit wMch arose out of the death of the decedent. No succession took place, or change in the nature of the liability nor any gift or benefit derived in contemplation of or intended to take effect hr possession or enjoyment at death. Other authorities, and particularly Matter of Vanderbilt (184 App. Div. 661; affd., 226 N. Y. 638); Matter of Baker (83 App. Div. 530; affd., 178 N. Y. 575); Matter of Orvis (223 id. 1); Matter of Schmoll (191 App. Div. 435; affd., 230 N. Y. .559), support the conclusion reached in tMs decision.


election or a divorce or annulment decree, court order, or court-approved settlement agreement incident to such a decree, see 5 U.S.C. § 8445(a); or (2) “the statutorily re- quired notice is ineffective; and [] the evidence shows that the employee . . . intended to provide a former spouse sur- vivor annuity,” Hairston v. Off. of Pers. Mgmt., 318 F.3d 1127, 1130 (Fed. Cir. 2003); see also Wood v. Off. of Pers. Mgmt., 241 F.3d 1364, 1366 (Fed. Cir. 2001); Vallee v. Off. of Pers. Mgmt., 58 F.3d 613, 615–16 (Fed. Cir. 1995); Brush v. Off. of Pers. Mgmt., 982 F.2d 1554, 1562–64 (Fed. Cir. 1992). It is undisputed that neither the Crosses’ <mask> nor their divorce decree expressly awards the survivor annuity benefit to Ms. Cross. This appeal therefore focuses on the second option available to Ms. Cross. Regarding intent, the Board found, and the Government does not challenge on appeal, that there is “no doubt that Mr. Cross did intend until his death that [Ms. Cross] would receive a former spouse survivor an- nuity based on his federal service.” Appx. 5; see also Oral Arg. at 31:36–32:17, https://oralargu- ments.cafc.uscourts.gov/default.aspx?fl=211116_12152021 .mp3. Accordingly, the dispositive question on appeal is whether OPM provided the statutorily required notice. For the reasons below, we conclude that the Board’s finding that OPM provided notice to Mr. Cross is not supported by substantial evidence. OPM is “under a very clear and mandatory directive from Congress” to provide annual notice of annuity election rights to all annuitants. Brush, 982 F.2d at 1563. “When a nonfrivolous allegation is made that OPM has not sent” the notice as required by statute, the burden of production falls to OPM to show, by “more than a bare allegation,” that notice was sent and to offer proof of its contents. Id. at 1560–61. “OPM presumably has access to the pertinent records, as well as to the people who deal with those rec- ords,” and this burden of production cannot be “upon the petitioner in the first instance to prove a negative.” Id. Case: 21-1116 Document: 56 Page: 6 Filed: 01/24/2022


’’Mrs Grace Isaacs [mother of decedent’s children and former wife of decedent, and objectant] 57 Nancy Blvd. Merrick, N. Y. Dear Grace, This will confirm our discussions today as follows: Notwithstanding anything to the contrary contained in the <mask> between us:— 1. I will provide for the completion of Mark’s present medical school education. 2. I will provide for such reasonable graduate work as Jane may elect to pursue. 3. I will maintain the existing $50,000 in life insurance presently existing for the three children in equitable proportions dependent on their needs for completion of their education. 4. I will provide in my last Will and Testament for a bequest for each of the children of no less than $5000 each. Sincerely, (signed) Jacob L. Isaacs [decedent] (signed) Grace F. Isaacs” This instrument was inscribed entirely in the handwriting of the decedent, except for the signature of the former wife. The identification of handwriting and signature of the decedent and of the former wife’s signature was made by decedent’s former law partner.


It was then stated by plaintiff’s counsel that the question of the legality of the <mask> and its relation to the reconciliation agreement was something that “might” be argued in briefs. Both sides then rested, and requested three weeks for submission of findings of fact and conclusions of law. This court then reserved decision and requested counsel to submit such findings, and judgment.


However, in regard to whether the provisions of the <mask> survived the decedent’s death, Cooke v. Cooke (208 Misc. 591, 594) quoted Lepsch v. Lepsch (275 App. Div. 412) as follows: “ If a separation agreement contains no specific provision as to survival of benefits, it must be read as a whole to determine whether it was the intention of the parties that such agreement survive the husband’s death, and the burden of proving such intent is on the wife.”


*852‘‘ A judgment of divorce in this state embodying a <mask> may be modified as to the terms of support. Goldman v. Goldman, 282 N. Y. 296, 26 N. E. 2d 265; Civil Practice Act, §§ 1155, 1170. The question presented is whether this court, having jurisdiction of the parties, may so modify a decree of a sister state. * * *


In reference to the claim of Minge C. Peach by the terms of the <mask> between her and the decedent, she had agreed that she would not have any right, title or interest in the decedent’s property. Such agreement expressly providing that each party released, relinquished and discharged "any claim of any kind or nature whatever in, or to, any part of the estate or property of either party not effectually disposed of by such party during his or her lifetime, shall pass by testamentary distribution or by the laws of distribution with the same force and effect as if the parties heretofore had never been married.” This language is clear and unambiguous and the court holds by virtue of the terms of this separation agreement, Minge C. Peach has released, relinquished and discharged any claims to the pension benefits which are in issue in this case. (Teachers Ins. and Annuity Assn. of Amer. v Rogers, 41 AD2d 1020; O’Brien v Elder, 250d 275.)


The father has offered his testimony upon his application to intervene. It appears therefrom that he is now and for sometime past, and particularly during all of the year 1931, was in the hotel business at New Lebanon Center, Columbia county, in this State. Differences between husband and wife arose, and on April 27, 1926, the parties entered into the usual form of <mask> upon the express consideration “ of the sum of $1.00 to each party hereto by the other duly paid * * * and for the other considerations herein contained." The contract provided that the wife should have the sole custody of and control of the children “ without any interference on the part of the party of the first part." Privilege to see the children at times convenient to the wife was therein given the husband. There was the further stipulation that if the parties should become reconciled the agreement should be void.


In opposition to the motion it is urged: (1) that the <mask> is illegal since it was conditioned upon the plaintiff obtaining a divorce; (2) that the plaintiff has violated the terms of the agreement by denying the defendant visitation privileges and by her misconduct with a named individual; (3) that conditions precedent to a recovery for orthodontic work and camp expense have not been complied with.


Petitioner and respondent were married, in New York State in 1966. The marriage was dissolved by divorce decree entered in Israel on July 25,1971. The infant Daniel was born in New York State on September 19, 1968, and is now six years of age. A <mask> between the parties, entered into in Israel on June 20, 1971 and modified on July 7, 1971, was confirmed and ratified in the divorce decree. The agreement and divorce provides for custody of the child in the mother. The father has generous visitation rights, the right to have the child in this country periodically throughout the year and because of his apparent financial circumstances this poses no hardship to ¡him. Upon the happening of either of two conditions, custody would be given to the father. The condition which petitioner relies on at this time reads as follows:


On the argument of this motion, the court was informed that negotiations had been carried on between the attorneys for the respective parties with the hope of a <mask>. The attorney for 'the plaintiff indicated that such an agreement could be worked out, but he did not feel that he should consent to any amount of alimony until he was fully and fairly apprised of the defendant’s assets and income. If it is impossible for the parties to live together, and a separation agreement could be worked out, it should be done to avoid litigation. For this reason alone, the taking of the defendant’s testimony should be permitted.


Less than two months later (Jan. 30, 1952), plaintiff commenced this divorce action wherein she charged defendant with acts of adultery allegedly committed in May, 1939. Defendant appeared through counsel but did not contest the action and, on February 24, 1942, after an inquest, the court directed the entry of a judgment. Accordingly, on March 6,1942 the court entered an interlocutory judgment of divorce which specifically referred to the afore-mentioned <mask> and made it a part thereof “as if the same were set forth in full ” and the judgment repeated verbatim all the provisions of the separation agreement referable to support, custody and rights and privileges of visitation afforded defendant.


In addition, a conversion divorce was granted where the <mask> did not specifically provide that the parties had the right to live separate and apart. In Littlejohns v Littlejohns (76 Misc 2d 82 [Sup Ct, NY County 1972]), the court found that where the agreement contained support provisions and it was demonstrated that the parties did not live together after the agreement was signed, the agreement did qualify as a separation agreement under Domestic Relations Law § 170 (6).


It seems that the rights granted to Zbig in the <mask> are similar to a life estate in real property. The agreement states that the former spouses are joint tenants with rights of survivorship, which shall not be affected by the dissolution of their marriage. Survivorship rights can only take effect upon the death of one party, which implies a life estate.


The letters reveal an attempt by the defendant to obtain false testimony from his wife in support of a fabricated alibi. The request to so testify is coupled with very thinly veiled threats of physical harm if the wife witness did not *505comply. This type of communication is clearly not within the <mask> since the threats indicate that it is not being made in reliance on the marital relationship (People v Dudley, supra; People v Patterson, 39 NY2d 288; People v Allman, 59 Misc 2d 209). Moreover, the letters are evidence of subornation of perjury and thus a criminal offense in themselves (criminal solicitation in fourth degree, Penal Law, § 100.05, subd 1). As such they should not be included within the privilege (People v Watkins, 89 Misc 2d 870, affd 63 AD2d 1033; see, also, Comment, proposed NY Code Evidence [1982], § 506, subd [d], par [1]).


At the same time, however, the information contained in the letters is privileged. “A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.” (CPLR 4502 [b]; see CPL 60.10.) Not all communications between a husband and wife are protected. The <mask> only applies to those statements made in confidence and “that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship.” (Poppe v Poppe, 3 NY2d 312, 315 [1957]; see also Parkhurst v Berdell, 110 NY 386, 393 [1888].) The term communication encompasses oral communications and conversations between husband and wife, as well as, “knowledge derived from the observance of disclosive acts done in the presence or view of one spouse by the other because of the confidence existing between them by reason of the marital relation and which would not have been performed except for the confidence so existing.” (People v Daghita, 299 NY 194, 199 [1949].) Letters between spouses fall within the protection of this rule. (See Hopkins v Grimshaw, 165 US 342 [1897]; People v Harris, 39 Misc 2d 193 [Sup Ct, Bronx County 1963].)


In this letter defendant says: "I wrote a long letter to Mom which I am sure she will share with you”. This sentence shows that the letter written to Mrs. Romer was to be published, even if only to other members of the family and to Mr. Halperin, defendant’s friend and an attorney who acted as defendant’s counsel on prior matters, but nonetheless to be published beyond the scope of the <mask>. Accordingly, it is not within the confidences protected by that privilege (see, e.g., People v Ressler, 17 NY2d 174). Moreover, in the case of Kenneth Romer, who is not an attorney, it is also outside of the ambit of the attorney-client privilege. Nor did Kenneth Romer acquire a privilege by virtue of giving the letter to an attorney.


The testimony and the exhibits at the hearing revealed a marriage that was not only on the rocks but awash and about to sink. The defendant had beaten his wife to the point where she had to seek hospital treatment. The parties were living apart and the wife had sought an order of protection from the Family Court. The wife had consulted an attorney and was actively seeking an annulment. To say that this marriage was in a state of disarray is to indulge in the grossest form of understatement. If this court were to indulge in the fiction that a relationship existed in this case and ought to be protected, to the frustration of the fact-finding process, it would violate, not reinforce, the public policy underlying the <mask>.


*549So considered, the letters at issue herein are the form of communication to which the <mask> applies. It is evident by the sensitive nature of the statements and the language employed by defendant that he would not have made such statements but for the relationship shared between he and his wife. Nonetheless, where the criminal activity was aimed at a child of the marriage, the privilege is extinguished. (See People v Davis, 226 AD2d 125, 126 [1st Dept 1996], lv denied 88 NY2d 1020 [1996]; People v Allman, 41 AD2d 325 [2d Dept 1973]; People v Govan, 268 AD2d 689 [3d Dept 2000].) Therefore, the letters are admitted.


Another consideration that must be taken into account is the issue of admissibility. Clearly, the statements of Carney to both Ms. Ferranti and Mr. Galison are both hearsay. (Nucci v Proper, 95 NY2d 597 [2001].) However, the statements made to Ms. Ferranti could arguably qualify as a declaration against penal interest. (People v Settles, 46 NY2d 154 [1978].) This is *695particularly appropriate in the case at bar, as Carney could have been reindicted on the matter (CPL 210.45). Due to the fact Ms. Ferranti and Mr. Carney only had a “common law marriage” there is no <mask> that would bar disclosure. (People v Suarez, 148 Misc 2d 95 [Sup Ct, NY County 1990].) However, an attempt to admit into evidence any statements by attorney Ed Galison about Carney’s role in the murder would clearly be hearsay and not fit into the exception of a declaration against penal interest. As all clients believe at the time they are confiding with their attorney, there can be no fear of discovery, as the confidential relationship “exists to ensure that one seeking legal advice will be able to confide fully and freely in his [or her] attorney, secure in the knowledge that his [or her] confidences will not later be exposed to public view to his [or her] embarrassment or legal detriment.” (People v Cassas, 84 NY2d 718, 723 [1995]; Matter of Priest v Hennessy, 51 NY2d 62, 67-68 [1980].) Thus, the declarant is unaware that any statement would be against his personal interest because of his belief it could not be used against him.


While there has been some support for the assertion that the absence of a viable marital relationship should in and of itself be considered an exception tp the <mask> *1054(see, e.g., People v Dudley, 24 NY2d 410, 414-415, supra; People v Oyola, 6 NY2d 259, 267-268 [dissenting opn of Burke, J.]), such a proposition has never attained separate recognition (see People v Fields, 38 AD2d 231, affd 31 NY 2d 713).


Major developments in the area of <mask>, include the congressional enactment of rule 26 of the Federal Rules of *97Criminal Procedure in 1946 which left the interpretation of the privilege to the courts; and the 1975 enactment of Federal Rules of Evidence rule 501, which permits Federal courts to interpret the common law "in the light of reason and experience” except in cases governed by State substantive law in which State law privileges apply.3


In New York, by legislative modification, this once rigid rule of absolute spousal incompetence has been transformed into a decidedly more limited testimonial privilege. Embodied in its present form in CPLR 4502 (subd [b]), the <mask> provides that neither spouse be “required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.”


evidentiary privilege is claimed, as such privileges are highly disfavored. Bousamra v. Excela Health, 210 A.3d 967, 986 n.15 (Pa. 2019); Red Vision Sys., Inc., 108 A.3d at 61. A colorable claim of privilege must be asserted that implicates potentially privileged material. Red Vision Sys., Inc., 108 A.3d at 59; see also Twp. of Neshannock v. Kirila Contractors, Inc., 181 A.3d 467, 472 (Pa. Cmwlth. 2018) (where an order “purportedly directed the disclosure of allegedly privileged documents, it was immediately appealable under Rule 313”). In the present case, Liokareas asserts that Harris is distinguishable on its facts from the instant case because the alleged privileged material already has been exposed and, consequently, there is no immediacy attendant to the review of the trial court’s order. In support, Liokareas cites Commonwealth v. Buttolph (Pa. Super., No. 1471 MDA 2012, filed November 26, 2013),9 quashing an appeal taken from an order holding that <mask> was waived because the alleged privileged material was already exposed. In other words, the bell already had been rung. According to Liokareas, the alleged privileged material that already has been disclosed is the GBBE Report attached as Exhibit D to its Second Amended Complaint. While still maintaining that the Report was never privileged, Liokareas argues that the claimed privilege has been waived as to the Report itself and, therefore, to all communications related to the Report. Accordingly, it contends that the collateral order rule does not apply. Indisputably, the GBBE Report has been disclosed. As noted, “once material has been disclosed, any privilege is effectively destroyed.” Harris, 32 A.3d at 249. Consequently, as we discuss at greater length below, the case is moot with regard to that document. However, in light of the fact that the Master and the trial


Natalie Antonetti was assaulted in her Austin apartment in the early morning hours of Sunday, October 13, 1985. There was no sign of forced entry, and nothing was stolen. Antonetti was not sexually assaulted and had no defensive wounds. The blunt force trauma to her head, which the medical examiner found consistent with having been attacked with a club or small bat, caused skull fractures, brain contusions, and a coma from which Antonetti never recovered. Antonetti died after the withdrawal of life support. The crime remained unsolved after the death of Austin Police Department Sergeant Edward Balagia, a homicide detective who served as lead investigator and conducted most of the interviews and evidence collection. The unsolved "cold case" was reopened in 2007 after a call to a homicide tip line from Rebecca Davis, the wife of appellant Dennis Davis. Rebecca told police that in 1991 after a few drinks, Davis cried and said he had "sinned against God and man," which she suspected was a reference to the unsolved murder of Davis's former girlfriend, Antonetti. Davis was charged with Antonetti's murder. Davis's wife Rebecca recanted her story and argued unsuccessfully that Davis's statement to her was shielded by <mask>. At trial, there was no physical or forensic proof connecting Davis to the crime; rather, his prosecution hinged on circumstantial evidence and testimony from witnesses, many of whom had not been contacted during the investigation back in the 1980s. The circumstantial evidence about Davis included Davis's relationship and last interaction with Antonetti, his arrival at the scene after the assault, his statements after the assault, his alibi, his ownership of a car similar to one seen in the parking lot of the apartments on the morning of the assault, and other acts of aggression in the years since Antonetti's assault. The jury also considered certain statements and a 911 call from Donn Chelli, Antonetti's neighbor at the time of the assault. Davis v. State , 413 S.W.3d 816, 820 (Tex. App.-Austin 2013, pet. ref'd). The jury convicted Davis in 2011 for Antonetti's *695murder, and the court sentenced him to thirty-six years' imprisonment. Id. at 819. The jury was not presented with evidence of a potential third-party perpetrator, including evidence of Antonetti's neighbor's identification of a different man from a photographic lineup as the person that he had seen holding a club or small bat while looking into the neighbor's apartment on the morning of Antonetti's assault. See id. at 827. This Court determined that Davis received ineffective assistance of counsel, reversed his conviction, and remanded this cause for a new trial. Id. at 838. The Texas Court of Criminal Appeals refused the State's petition for discretionary review. See In re Davis , No. PD-1520-13, 2014 Tex. Crim. App. LEXIS 183, at *1 (Tex. Crim. App. Feb. 5, 2014). This Court issued our mandate in Davis's appeal on March 6, 2014.


At the hearing, the objectant testified that she gave the diary to her husband and mother to review. The proponent *373alleges that the confidentiality of the communication was thereby waived by the objectant. The objectant contends that the privilege was not waived because the communication to the spouse is protected by the <mask> (CPLR 4502 [b]) and the communication to the mother by the "parent-child privilege” (Matter of A & M, 61 AD2d 426).


“Find the strength to overcome this. I will do anything and everything to help [the complainant] .... And you as well [to] find joy to extinguish the pain in our hearts. This is our family, our unit, and I am the head of. With a loving wife by my side who is strong, smart and servant to the most high and who knows through him all is possible. Daddy is sick and I needed help. We will help daddy get better as a family. Let’s help daddy .... I am in love *547with you and I am asking you to forgive me and to sacrifice yourself. I know it’s a lot to ask but I wouldn’t if I couldn’t fulfill. I’ve expressed my sorrow and offer my apology and my acknowledgment that I caused our family pain. And I will do everything in my power to ease it. I ask for another chance. The rest is up to you. Come back to me my darling wife and friend.” Defendant asserts that these two portions should be deemed inadmissible as they do not fall within any exception to the hearsay rule and are protected by the <mask>. Defendant argues that the statements contained in the letters constitute confidential communication between a husband and wife and therefore should not be introduced at trial.


Jaunita Bing Newton, J. The court, in the case at bar, must determine the availability of the <mask> in the context of a criminal *96proceeding in which one "spouse” is the defendant.1 Surprisingly, there is a dearth of reported case law on the topic as it relates to the facts of this case. That is, where the couple live together in an admittedly nonformalized relationship and a colorable argument can be made for the existence of a common-law marriage.


The <mask> developed historically from the common-law rule which completely disqualified a wife from testifying for or against her husband. She was held to be incompetent because spouses were considered as a single entity and, therefore, interested in the outcome of the litigation in which the other spouse was a direct party. At common law, interested witnesses were deemed disqualified from testifying (see, Croker v New York Trust Co., 245 NY 17, 20). The privilege was also deemed necessary to avoid subjecting domestic tranquility to the disturbance which was thought to flow from a spouse giving adverse testimony against the other (People v Rodriguez, 38 NY2d 95, 99, citing 1 Coke, Commentary upon Littleton § 6b [19th ed 1832]; 2 Kent’s Commentaries 179).


No statutory "parent-child” privilege exists in New York State, though the Legislature has codified the early common-law privileges of "attorney-client” (CPLR 4503), "husband-wife” (<mask> — CPLR 4502), and that of "self-incrimination” (CPLR 4501; cf. US Const, 5th Arndt; NY Const, art I, § 6; CPL 50.20). Additional privileges not found in the common law, but enacted by New York State, include the following: *715"physician/dentist/nurse-patient” (CPLR 4504), "clergy-penitent” (CPLR 4505), "psychologist-patient” (CPLR 4507), "social worker-client” (CPLR 4508), the qualified privilege granted to newspersons and journalists (Civil Rights Law, § 79-h) and many State statutes deeming information in the possession of public officials as privileged from disclosure in varying degrees (see Fisch, New York Evidence [2d ed], § 744, at p 440).


The <mask> against self incrimination is an extension of the Fifth Amendment right. It is grounded upon the theory that just as one may not be convicted by his own compelled testimony, so may he not be convicted by the testimony of his spouse as to a communication uttered in reliance upon the sanctity of the marital relationship (CPLR 4502, subd [b]). The court finds that the production of the subpoenaed material would not violate the marital privilege. That privilege is no greater than the right not to incriminate oneself, and the court has held no such right exists in this case because the records are those of a separate business entity. Furthermore, the entries and other records of the nursing home are not communications from one spouse to the other, and there is no indication that any entry or record was made in reliance upon and in respect of the marital relationship (Richardson, Evidence [10th ed], § 448).


The three documents at issue were all generated during his disappearance. One was a letter addressed to his wife, with an attachment that sets forth a list of his "obligations”. The People now are offering only the list but reserve their right to offer the entire letter to Mrs. Romer at a later time. Mr. Romer alleges that this letter is protected by the <mask>.


The court in State v Briley (supra, p 506) explained: “It is the basic policy of our law that every person is qualified and compellable to be a witness and to give relevant and competent evidence at a trial. Rule 7 of the New Jersey Rules of Evidence; N. J. S. 2A :84A-16. Privileges expressly granted to persons to refuse to testify or to prevent another from testifying are exceptions to that policy. See Rules 23-32, 34, 36-40; N. J. S. 2A:84A-17 to 32. Since rigid adherence to the letter of the privileges promotes the suppression of truth, they should be construed and applied in sensible accommodation to the aim of a just result. In view of the obvious policy of the law to enlarge the domain of competency of witnesses and to adapt rules of evidence to the successful development of the truth, competency should be regarded as the rule and incompetency as the exception. This approach is plainly applicable to the so-called <mask>.”


The violation of a statute by law enforcement will not necessarily result in suppression of the fruits of such violation (People v Patterson, 78 NY2d 711 [violation of CPL 160.50 does not warrant suppression of identification]; People v Sampson, *60373 NY2d 908 [violation of Vermont’s "fresh pursuit statute” does not mandate suppression]; People v Harris, 48 NY2d 208, 216 [suppression not warranted where defendant’s statutory rights, as opposed to constitutional rights, were violated]; People v Bialostok, 80 NY2d 738 [violation of CPL 700.50 (3) requiring written notice of wiretap does not necessitate suppression]). It is only where a constitutionally protected right is implicated (e.g., People v Taylor, 73 NY2d 683; People v Gallina, 66 NY2d 52; People v Moselle, 57 NY2d 97) that a violation of a statute warrants suppression (People v Patterson, 78 NY2d, at 715-716, supra). Suppression is appropriate only where a "statutory imperative operates directly to protect and preserve a constitutionally guaranteed right” (People v Patterson, 78 NY2d, at 717, supra). In contrast, the <mask> does not implicate a constitutionally protected right.* Indeed, as set forth above, the motivation for the enactment of the marital privilege statute was to encourage husbands and wives to share confidences with assurance that they would not be divulged in legal proceedings (Poppe v Poppe, 3 NY2d 312, supra; People v Daghita, 299 NY 194, supra) and to avoid the "feeling of indelicacy and want of decorum” (Prink v Rockefeller Ctr., 48 NY2d 309, 318, supra) that would arise from requiring a person to condemn or be condemned by his or her spouse, or by prying into the marital relation (see, Prink v Rockefeller Ctr., 48 NY2d, at 318, supra; see also, Richardson, Evidence § 447 [Prince 10th ed]; 8 Wigmore, Evidence § 2228 [McNaughton rev ed]). There does not appear to be anything in the legislative history of the marital privilege to indicate that its enactment was premised upon constitutional underpinnings or intended to bar law enforcement from investigating criminal acts.


Both parties to a <mask> must consent to divulgence of confidential communications between them. (CPLR 4502, subd [b]; People v Wood, 126 NY 249, 271; Parkhurst v Berdell, 110 NY 386, 393; cf. Poppe v Poppe, supra, at pp 314, *721315.) Such a mutuality of privilege must exist in a parent-child situation, as well (Matter of A. & M., 61 AD2d, at p 435, n 9) as by its nature, the family relationship forms a common bond wherein the interests of the parties are similar, i.e., maintenance of the sanctity of the family, and injury by the State to one party of such familial unit effectually acts against all.


As a final matter, plaintiff insists that the <mask> should not be permitted to assist fraud, again citing G-Fours (supra) and a number of out-of-State cases cited therein. As before, this court restates that there has been no showing by plaintiff of any fraud committed by this witness or of her concealment of fraud by refusal to disclose the information protected by the privilege. Frustration in fact finding by reason of a statutory privilege based upon public policy considerations, is not fraud in and of itself. No precedent which is binding, or even persuasive, has been demonstrated to the contrary.


Defendant, in his moving papers, has, at the very least, established the need for the court to conduct an evidentiary hearing on the issue of whether defendant’s particular relationship satisfies the above criteria. Inasmuch as the defendant is seeking to establish the existence of a valid common-law marriage, he has the burden of proving that the marriage existed. (Matter of Benjamin, 34 NY2d 27 [1974].) The evidentiary hearing would afford the court the opportunity to question, under oath, Wanda Silva, Douglas Suarez, or other witnesses regarding this "marriage” in an effort to determine whether the defendant has sustained his burden of proof and whether the <mask> would be available to him.


CPL 60.10 and CPLR 4502 (b) are the applicable statutory provisions. These statutes and the relevant case law dictate that the invocation of the <mask> requires the existence of a marital relationship at the time of the subject communication.4 Query, can the defendant in the instant case who has lived with Wanda Silva without the benefit of a ceremonial marriage, invoke the marital privilege?


A parent-child privilege may be waivable, however. (Cf. People v Wood, supra; Parkhurst v Berdell, supra; Poppe v Poppe, supra.) Indeed, the court in Matter of A. & M. (supra, p 435, n 9) expressed concern with the spectre of a child in Family Court proceedings invoking "such a privilege to prevent his parents from testifying about matters in which they were seeking the intervention and assistance of the court in controlling the child’s behavior”, i.e., those provisions concerning the determination as to whether a person is "in need of supervision” (P.I.N.S.) (Family Ct Act, art 7). It is possible in such a proceeding a parent would wish to divulge to the court certain confidential communications made by the child in order to gain the help of the court in gaining or regaining supervisory control over a child. In such a situation the position of the State is one of attempting to maintain and foster the family relationship rather than simply invade it for its own purpose, and no rational purpose would apply to allow the child to claim the protection of a parent-child privilege in such case. This concept is recognized by analogy to those situations in which the interest of the State has been found to be paramount in invading the prerogatives of parental guidance "in the best interests of the child,” i.e., child protection proceedings under article 10 of the Family Court Act. The interest of the child in such instances is viewed as so worthy of State intervention that by statute the <mask> and those of physician-patient, and social worker-client do not apply. (Family Ct Act, § 1046, subd [a], par [vii]; cf. Social Services Law, § 411 et seq.) The interests of the State have been "balanced against the rights of individual privacy, guaranteed by the Constitution,” (cf. Matter of A. & M., supra, at p 433) and the former found of greater benefit. It is likely that the same is true for the P.I.N.S. situation and the privilege must fall in such cases and be deemed by law or statute inapplicable.


Section 137 of the Restatement, Second, Conflict of Laws (hereafter referred to as the Restatement) provides that “[t]he local law of the forum determines what witnesses are competent to testify and the considerations that may affect their credibility.” (See, also, Shepard & Gluck v Thomas, 147 Tenn 338.) This is so because a rule of witness competency is a rule of evidence governed by the law of the forum (see Hausman v Buckley, 299d 696, 700, cert den 369 US 885; Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 381, mot for rearg den 25 NY2d 959; Kilberg v Northeast Airlines, 9 NY2d 34, 41). Thus the New York <mask> rule governs the instant situation.


The underlying rationale for the creation of the <mask> by the Legislature as codified today was: (1) to encourage husbands and wives to share confidences by the assurance that they would not be divulged in legal proceedings (see, Poppe v Poppe, 3 NY2d 312, People v Daghita, 299 NY 194), and (2) to avoid the "feeling of indelicacy and want of decorum” (Prink v Rockefeller Ctr., 48 NY2d 309, 318) that would arise from requiring a person to condemn or be condemned by his or her spouse, or for prying into the secrets of the marital relation (see, Prink v Rockefeller Ctr., 48 NY2d, at *601318, supra; see also, Richardson, Evidence § 447 [Prince 10th ed]; 8 Wigmore, Evidence § 2228 [McNaughton rev ed]).


As for the alleged privilege arising by reason of the marital relationship, the court finds that the subject matter was not of a confidential nature, but the information was intended to be imparted at least between the spouses and, in addition thereto, the information was divulged to a third party, to wit, the attorney-draftsman. Therefore, the court finds that the <mask> does not exist (5 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 4502.15, 4502.17; Richardson, Evidence [9th ed.], §§ 460, 462; Fisch, New York Evidence, § 597; 4 Bender’s New York Evidence, § 245.03 [2]).


“One spouse may not, without consent, disclose a confidential communication made by the other during marriage (CPLR 4502 [b]; CPL 60.10)” (People v Fediuk, 66 NY2d 881, 883 [1985]). While a suicide note can be a communication made during marriage for the purpose of the privilege (see Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 73 [1982]), the spousal privilege falls “when the substance of a communication ... is revealed to third parties” (id. at 74; see People v Weeks, 15 AD3d 845, 846 [2005]; People v Beard, 197 AD2d 582, 583 [1993]; People v LaPlanche, 193 AD2d 1062, 1063 [1993]). Here, the substance of the communication between the defendant and his wife of his intention to commit suicide through taking large quantities of Xanax was revealed by the defendant to Officer Johnstone, his neighbor, and the nurse who happened upon the scene of the accident. In addition, the defendant left the notes on the kitchen counter and directly addressed his children, as well as his wife, in one of the notes. Thus, the Supreme Court properly determined that the notes were not protected by the <mask> (see People v Thomas, 288 AD2d 405, 406 [2001]).


The public policy underlying the New Jersey <mask> statute is to preserve the sanctity of the marital relationship (State v Briley, 53 NJ 498, 505, supra) by basically prohibiting one spouse from testifying against the other. However, as previously noted, New Jersey case law has limited the scope of its privilege statute. New *89York, while also concerned with the marital relationship, limits the scope of its marital privilege to “confidential communications.” (See CPLR 4502; People v Rodriguez, 38 NY2d 95, 100.) The public policy underlying the New York privilege is to encourage “the parties to a marriage [to] speak freely to each other of intimate confidences without the fear of thereafter being confronted in litigious matters with confessions” (Federated Dept. Stores v Esser, 96 Misc 2d 567, 569). New Jersey, as the place of the marital domicile, has an arguable interest in applying its marital privilege statute. However, since: (1) New Jersey judicially narrowed the scope of its marital privilege (cf. Trammel v United States, 445 US 40); (2) Jane Doe is now apparently separated from her husband; (3) New York is now conducting an investigation into the three murders which occurred within its boundaries, this State has a greater interest in applying its marital privilege statute. Moreover the fact that the Does’ marital relationship has apparently deteriorated strongly militates against New Jersey’s interest in having its statute applied in this proceeding. Thus, under either the Restatement approach or a governmental interest analysis approach, I find that Jane Doe may not invoke subdivision (2) of Rule 23 of the New Jersey Rules of Evidence.


The court finds that the defendant’s wife freely and voluntarily consented to and in fact requested the law enforcement officers to accompany her and be present in the marital *990residence on the occasion of the recovery of the property, and she was not coerced or maneuvered in any manner by law enforcement authorities. The disclosure which she made to the District Attorney and the police did not violate the <mask>, but was in fact an exception to the privilege (People v Scull, 37 NY2d 833). These disclosures which she made to the District Attorney imposed upon him a duty to act. Such disclosures constituted probable cause to arrest the defendant, based on a reasonable belief that he had committed the crimes of perjury and subornation of perjury (People v Scull, supra).


Over defense objection, the People introduced into evidence four suicide notes, which were left on the kitchen counter of the home where the defendant’s wife and children resided. The notes either were directly or indirectly addressed to the defend*1080ant’s wife and/or children and one of the notes mentioned taking Xanax. The defendant contends that the Supreme Court should have barred the admission of the notes into evidence based upon the <mask>.


Almost as an afterthought, at the conclusion of his memorandum of law, the defendant seeks to have this court reconsider its ruling respecting the inapplicability of the <mask>. (People v Gearhart, slip opn, supra, at 6-7.) The reason for this apparent request for reargument is evidently contained in two cited cases the defendant wishes the court to consider. (CPLR 2221; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2221:7, C2221:8, at 157, 158.) Although not properly raised, in its discretion, this court has considered the cases posited by the defendant. The original decision of August 25, 1989 will be adhered to. (See, *259People v Gomez, 112 AD2d 445, 447 [2d Dept 1985]; People v Allman, 41 AD2d 325 [2d Dept 1973]; Richardson, op. cit., §§445, 446.)


The Court of Appeals, in Prink v Rockefeller Ctr. (48 NY2d 309), held that neither the physician-patient nor the <mask> permits a plaintiff to claim affirmative relief and, simultaneously, to refuse to disclose information bearing upon his right to maintain his action. The rationale is simple, i.e., "the unfairness of mulcting a defendant in damages without affording him an opportunity to prove his lack of culpability” (48 NY2d, at 316).


This contention is without merit. Defendant has not established that as a police officer, Mr. Scotti acquired knowledge of his wife’s condition through his participation in this investigation (United States v Morell, 524d 550, 555; cf, Pina v Henderson, 752d 47, 49). Mr. Scotti gained knowledge of his wife’s condition, if at all, in his capacity as a husband and not as a police officer, and on this basis his knowledge cannot be imputed to the prosecution (People v Bracy, 98 Misc 2d 346, 351, affd sub nom. People v De Pasquale, 75 AD2d 751, affd 54 NY2d 693). Indeed, defendant has not adduced any facts showing that Mr. Scotti even possesses any relevant information, save the equivocal plea allocution minutes. Moreover, assuming defendant can make this showing, he has not addressed the issue of whether the <mask> (CPLR 4502 [b]) prohibits revelation of such information.


Since neither New York nor Puerto Rico recognizes common-law marriage, the issue presented was whether the mari*359tal privilege applied to what are euphemistically but not legally called common-law marriages. As common as "common-law marriages” are in this day and age, the court was astonished to find that the last reported case dealing with this issue was decided by the Court of Appeals in 1937 and in dicta at that (People v Woltering, 275 NY 51, 61). In Woltering, the court held that the issue of whether or not a prosecution witness was the common-law wife of the defendant should have been submitted to the jury with instructions to disregard her testimony if she was in fact the defendant’s wife. Disregarding the dubious value of instructing a jury to strike testimony in the jury room, it is reasonable to assume that the court was not extending the <mask> to the unmarried but, instead, was allowing for the possibility that a valid common-law marriage had been contracted prior to abolition on April 29, 1933.


The appellate court in Matter of A. & M. (61 AD2d 426, 429, supra) concluded that communications between the parent and child did not fall within the protection of the <mask> (CPLR 4502, subd [b]) of confidential communications. However, as stated above, the rationale for the existence of a parent-child privilege is most closely analogous to the marital privilege which is "[djesigned to protect and strengthen the marital bond, [so that it] encompasses only those statements that are 'confidential,’ that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship” (Poppe v Poppe, 3 NY2d 312, 315).


The <mask> is founded in public policy considerations. The Legislature has determined that the confidences exchanged between husband and wife must be protected even at the cost of frustrating the fact-finding process. The same policy rationale could logically be applied to relationships such as the one in question. However, the Legislature has also expressed a clear public policy on common-law marriages by denying them validity (Domestic Relations Law, § 11). The marital privilege operates to preclude competent and material testimony, and the Legislature has found this is justified only to protect those who are legally husband and wife.


"Spousal [s]upport clearly was not the focus of this case. The Court finds that the parties spent little time presenting evidence on or arguing the mandated ... section 4320 factors. Based upon the evidence actually presented, the Court finds that the parties had an upper-class life style [sic ]. [Joe] made significant amounts every year; [DeeDee] did not work outside the home. The parties easily paid off a multi-million dollar house and there did not appear to be any real spending curbs in place for either party. The parties enjoyed several country club memberships (one in Georgia), travel, luxury automobiles and extensive investments. There is no doubt [Joe] currently has the ability to pay a <mask> award. Both parties are in good health from an employment perspective. The Court finds that [DeeDee] has had some health challenges in the past, but there is no evidence that they currently prevent her from working. Regarding the other section 4320 factors, the Court finds that there is little evidence concerning them. The Court finds there are no special circumstances in this long term marriage; there are no unusual tax considerations. There is no documented history of domestic violence or the criminal conviction for domestic violence; to the extent that there was any domestic violence it did not impair in any way [DeeDee's] ability to work. [DeeDee] worked until the birth of her children and has not worked for several years. [DeeDee] clearly supported [Joe's] career and stayed at home raising the children. There is no evidence that care for these two older children impair in any way either party's ability to work; in fact, they currently enjoy a 50/50 custodial arrangement, thus, freeing [DeeDee] to seek and maintain employment. Neither children nor either party have any special needs that causes the Court to consider an increased spousal support award. The Court does not impute an income to [DeeDee] but does recognize she has significant investment income. Capital gains are income for purposes of support, nonrecurring or not. The Court further finds that the $884,305 that [Joe] received was a return on equity, not income. It is not a taxable income amount. The Court took no further factors into consideration in rendering the support award ...."13


4. PROPERTY. The Court finds the following distribution of property to be equitable: The Plaintiff is awarded the following property: the residence at 411 North Oakley, the 2011 Cadillac CTS, the 2004 Pontiac Grand Prix, one-half (1/2) of Defendant's Union Pacific Retirement account, one-half (1/2) of her own Arkansas Public Employee Retirement System (APERS) account, and whatever funds presently exist in the parties' joint bank account. The Defendant is awarded the following property: the 2011 Cadillac DTS, the 1994 Pontiac Grand Am, the GMC truck, the GMC Denali, the 2008 Suzuki Hayabusa Motorcycle, one-half (1/2) of his own Union Pacific Retirement account, one-half (1/2) of Plaintiff's APERS account, all of his ITW Retirement Account, and all of the cash he admitted to possessing and withholding from Plaintiff at and around the time of the separation which the Court finds would well exceed $ 6,000.00. 1. DEBTS. The Court makes the following debt distributions: The Plaintiff shall be responsible for the following marital debts: Capital One ($ 1,584.06); IRS/2015 ($ 983.46); IRS/2016 ($ 1,200.00); JCPenney ($ 386.46); LAC Collections ($ 65.51); Best Buy ($ 1,521.72); TJ Max/Synchrony Bank ($ 607.21); RCA ($ 50.00); Fordyce Bank & Trust ($ 2,703.27); Discover Card ($ 1,337.17); Exxon ($ 326.45); Dr. Brotherton ($ 64.67); Jefferson Regional Medical Center ($ 232.00); Avenue ($ 354.05); Credit One ($ 1,827.85); Children's Place ($ 199.00); Midland Funding ($ 2,095.32); and GM Financial for the 2011 Cadillac CTS ($ 14,172.56). The Defendant shall be responsible for the following marital debts: Sears Credit Card ($ 1,091.49); Best Buy ($ 1,158.00), IRS taxes owed for 2014, 2015, 2016, and 2017; debt on the 2011 Cadillac DTS (approximately $ 14,000.00); and other credit card debt in Defendant's name. 2. ALIMONY. The Court finds after considering the financial circumstances of both parties; the financial needs and obligations of both; the couple's past standard of living; the amount and nature of the income, both current and anticipated, of both husband and wife; the extent and nature of the resources and assets of each of the parties; the amount of income of each that is spendable, the amounts which, after entry of the decree, will be available to each of the parties for the payment of living expenses; the earning ability and capacity of both husband and wife; property awarded or given to one of the parties, either by the court or the other party; the disposition made of the homestead or jointly owned property; the relative *191fault of the parties and their conduct, both before and after separation, in relation to the marital status, to each other and to the property of one or the other or both; and the duration of the marriage; that the Plaintiff should receive <mask>. Defendant shall pay the amount of $ 500.00 per month for a period of forty-eight (48) months at which time the support shall cease. Support shall cease earlier if the Plaintiff remarries prior to the conclusion of the forty-eight months. Stanley's appeal timely followed.


On December 30, 2016 Leon filed a new request for order (RFO) seeking termination of <mask>. Both Leon and Sandra were 56 years old at the time of the motion. The primary basis for Leon's request was that he was retiring and Sandra would therefore begin receiving an amount from her portion of his retirement benefits that was close to the amount of spousal support Leon had been paying.


We see no legal basis to distinguish between the enforcement of a premarital agreement to waive <mask>, and a postmarital agreement to do the same. Parties prior to marriage or in dissolution proceedings are entitled to reach agreements about spousal support, and so long as the circumstances surrounding the formation of the agreement are conscionable and lawful, courts will not intervene in the unintended consequences to the parties in the future. From Natalia's perspective, circumstances changed after Judge Gallagher *12determined the PMA was enforceable. We do not see any legal or factual authority that allowed the trial court to override Judge Gallagher's decision based on that change. We find Judge Towery properly denied Natalia's request for spousal support and affirm the judgment accordingly. *864F. Conclusion***


“New York and Federal laws exempt certain income from debt collection. Creditors cannot seize income such as Social Security, disability, pensions, public assistance, child support, and veteran’s benefits. Federal law specifically prohibits the use of the legal system to satisfy debts from veteran’s benefits, Social Security (SS), Social Security Disability (SSD), and Supplemental Security Income (SSI). For 750,000 New Yorkers, Social Security is their *960only source of income. New York law also exempts benefits, such as pensions, public assistance, workers compensation, unemployment insurance, as well as child support, and <mask> or maintenance. To ensure that money judgments do not render working New Yorkers unable to care for their or their families’ most basic needs, New York also protects a baseline amount of every person’s earnings. It exempts 90 percent of earnings deposited into a bank account within 60 days prior to the date the bank receives the restraining notice. “New York law also protects from garnishment a set amount of wages which is equivalent to thirty hours per week of employment at minimum wage. The exemption laws were enacted to ensure that safety-net income is not diverted from its intended purpose: helping the: elderly, disabled, and poor to maintain the resources needed for food, rent, medicine and other basic necessities. Despite existing law, bank accounts containing legally exempt income are frozen with ‘restraining notices’ issued pursuant to CPLR 5222, and hundreds of vulnerable New Yorkers lose access to the funds required for basic needs. The impact on low-income New Yorkers is devastating and puts families in peril of hunger, illness, loss of utilities, eviction and further loss of their limited income to bank fees. CPLR 5222 enables creditors to ignore exemption laws by empowering them to freeze an account regardless of its contents. CPLR 5222 permits a judgment creditor’s attorney to send a restraining notice to a bank holding a judgment debtor’s account. Direct deposit of benefits has become nearly universal. Currently, over three million or 80 percent of all SS, SSD, and SSI beneficiaries in New York receive their benefits through direct deposit, consistent with federal policy. Banks can easily identify accounts holding directly-deposited exempt income because each electronic deposit clearly states its source. However, under current law, CPLR 5222 makes no allowance for direct deposit of exempt funds and, instead, requires the bank to freeze the account or to risk being held in contempt of court. Only after the account is frozen, does a debtor receive notice of the restraint. Working New Yorkers are even further disadvantaged because they are given no notice that *96190% of their wages from the 60 days prior to the restraint is exempt. The burden is on the account holder to show that the account contains exempt income. In the interim, the debtor is left without any financial resources. To make matters worse, currently the CPLR provides no specified procedure for a claim of exemption, and debtors are left guessing as to how to enforce their exemption rights. The system conflicts with federal and New York State’s policies of protecting certain funds from forcible collection to satisfy a judgment. The problem has reached epidemic proportions in New York. Debtors often have difficulty getting an account released even though the creditor has no legal right to its contents. Banks can provide little help, as only the creditor or a judge can release the account. “All too often, however, creditors ignore calls from debtors, demand a debt payment as a condition of releasing the account, or insist on proof of the exemption that an elderly, disabled or poorly-educated person may be unable to produce, even when the bank possesses the necessary proof. Moreover, using the courts to claim an exemption is complicated and extremely difficult without the aid of a lawyer. Seeking relief in court takes at least two weeks and usually longer. While the courts have pro se forms to help litigants with a range of legal problems, there are no forms for exemption claims. In the worst cases, account holders do not understand their rights, while others give up trying to overcome the obstacles to releasing their accounts. The result is that creditors often take safety-net income from New Yorkers living on the margins. Those effected are unable to provide basic necessities for themselves and their families. Those who regain access to their accounts discover that the bank has debited their accounts for legal processing, overdraft and bounced check fees, often totaling hundreds of dollars. For low income debtors, such a loss often means skipping meals or forgoing medical treatment in order to pay the rent. The experience is so costly that many give up their bank accounts and revert to using expensive nontraditional financial services, including check cashing services. “Numerous stories have been featured in the press regarding the seizure of exempt funds. Both the Wall *962Street Journal and the Christian Science Monitor have recently published stories which called attention to the problem. It has become clear that a legislative solution is required. This bill will create a legal procedure by which judgment debtors are informed of which funds are exempt and provided an opportunity to assert that the funds in their account are exempt from seizure before the account is completely restrained or executed against. However, creditors will be able to restrain funds above the threshold levels and access non-exempt funds after the procedure has run its course. Connecticut and California have recently enacted similar laws to protect their most vulnerable citizens. The Assembly Judiciary and Consumer’s Committees held hearings on debt collection which brought to light the serious harm caused by the inability of the system to prevent the seizure of exempt funds. This bill will resolve the problem of seizing exempt funds and allow both judgment debtors and judgment creditors to protect their rights under the law.” (Senate Introducer Mem in Support, 2008 NY Senate Bill S6203B [emphasis supplied].) In addition to this statement of legislative intent, the court also notes that Assemblywoman Helene Weinstein, Assembly sponsor of Bill A8527-A/S6203-B wrote to Governor Paterson urging him to sign the measure into law, as it was unanimously passed by the Assembly and Senate, and it established a procedure which would permit debtors to assert that their income is exempt from the execution of a money judgment. The Assemblywoman further stated:


(1) the relative earning abilities of the parties; (2) the ages and physical, mental, and emotional conditions of the parties; (3) the retirement benefits of the parties; (4) the duration of the marriage; (5) the standard of living of the parties established during the marriage; (6) the relative education of the parties; (7) the relative assets and debts of the parties, including but not limited to any court-ordered payments by the parties; (8) the time and expense necessary of the spouse seeking support to acquire education, training, or job experience; (9) the tax consequences for each party of an award of <mask>; and (10) any other factor that the court expressly finds to be relevant and equitable.


The prenuptial agreement provides in article III, § 2 as follows: “Each of the parties waives, releases, relinquishes, and forever renounces any and all right to maintenance from the other to the fullest extent permitted by law including, but not limited to, any right to maintenance under Section 236.6, Part B, of the Domestic Relations Law.” Article III, § 3 of the prenuptial agreement further provides: “In the event that the parties should become involved in an action or other proceeding for <mask> or for divorce, separation and/or annulment, then each of Ms. Covello and Mr. Arizin agrees not to seek or request or to accept permanent or temporary or interim maintenance, support or alimony or to seek or accept counsel fees from the other in, or in connection with, that action or proceeding.” The prenuptial agreement further provides in article III, § 4:


Ashlyne filed a responsive declaration to Vikash's request. She stated that she did not have a work permit because Vikash stole her green card and she was still waiting for replacement papers. Ashlyne reported that when she tried to apply for jobs, she was asked for proof of residency, and that after Vikash abandoned her, she was on cash aid and food stamps until she started receiving <mask>. Ashlyne attached the I-864 affidavit to her response, and asked the court to continue support "because [Vikash] swore to the US Government he would take care of me for 10 years or 40 working quarters...."


Pointing to the fact that the wife receives $75,000 a month in combined temporary child and <mask> and that she stands to walk away from the marriage with somewhere in the vicinity of $10 million in equitable distribution, the husband asserts that it is time for the wife to assume some of the burden for the cost of the litigation. In so doing, he invokes a phrase that might not be found in a legal dictionary or used in any reported case, but is heard frequently in the context of matrimonial proceedings. The phrase is “skin in the game,” and it refers to the belief that the best way to insure that a party to a divorce will litigate reasonably and responsibly is to require the party to share in the cost of the litigation.2


In mid-July 2015, the parties came to an agreement that resolved the amount of permanent <mask> Cuellar would pay Mendoza without the need for a trial. The signed stipulation and order indicated support would be in the amount of $800 per month, beginning July 1, 2015. It also stated "retroactivity of spousal support" was an outstanding issue the court would decide at a hearing scheduled for the following month.


[t]he parties experienced a moderate standard of living during the marriage. Both parties testified credibly that most of their income was spent on their children’s education, and most of their savings was in the form of equity in the marital residence and in the IRA divided above. This factor weighs slightly against [Csilla’s] request for <mask>. [Kevin’s] testimony was credible in that he stated the parties’ plan for the future was for the business entities to become more valuable over time as their cross collateralized loans were paid down, so that they could either be sold at substantial profit, or so that the shareholders could take a larger annual distribution. Nothing in the magistrate’s well-reasoned analysis remotely suggests


Thus, construing Domestic Relations Law § 236 (B) (9) (a) in a vacuum distracts the reader from the true intent of the Act. This statute was enacted as part of a series of procedural measures to aid in the implementation of family support obligations, which were enacted in Laws of 1985 (ch 809). They are known collectively as the New York State Support Enforcement Act of 1985. In Governor Mario Cuomo’s approval of the bill dated August 2, 1985, he stated that the "bill * * * will enact dramatic and comprehensive reforms of the child and <mask> enforcement system.” (1985 McKinney’s Session Laws of NY, at 3324; emphasis by the court.) The legislative data indicated that the Act will bring New York into compliance with recently enacted Federal child support requirements (see, 42 USC § 651 et seq.) and bring comprehensive reform of child support enforcement in New York State (see, Governor’s mem on approving L 1985, ch 809, 1985 McKinney’s Session Laws of NY, at 3324). It is clear that equitable distribution awards were not within the Legislature’s contemplation when the Act was considered. The mischief intended for legislative remedy was, according to the Governor’s memorandum, overdue support obligations, and the remedy chosen was, inter alia, expedited judicial resolution of these matters. This act should be construed in a manner which suppresses the evil and advances the remedy (McKinney’s Cons Laws of NY, Book 1, Statutes § 95).


Unclean Hands Lisa also claims that the district court abused its discretion in failing to deny Mark’s complaint for modification on the basis of his unclean hands. She argues that Mark “willfully and intentionally refused to pay child and <mask>, despite his clear ability to do so.” Brief for appellant at 14. [9] As applicable to complaints for the modification of child support and alimony obligations, the Nebraska Supreme Court has stated that in cases in which a party owes past due alimony or child support, “the courts have generally held that the failure to pay must be found to be a willful failure in spite of an ability to pay before a request for modification of a decree may be dismissed on the basis of ‘unclean hands.’” Voichoskie v. Voichoskie, 215 Neb. 775, 777, 340 N.W.2d 442, 444 (1983) (Voichoskie I). See, also, Marr v. Marr, 245 Neb. 655, 515 N.W.2d 118 (1994); Voichoskie v. Voichoskie, 219 Neb. 670, 365 N.W.2d 467 (1985) (Voichoskie II); Richardson v. Anderson, 8 Neb. App. 923, 604 N.W.2d 427 (2000). In its order modifying the decree, the district court did not make an express finding as to whether the doctrine of unclean hands barred any modification of Mark’s support obligations. - 467 - Nebraska Court of Appeals Advance Sheets 30 Nebraska Appellate Reports HODGEN v. HODGEN Cite as 30 Neb. App. 456


In Shimkus , supra, 244 Cal.App.4th 1262, 198 Cal.Rptr.3d 799, the trial court granted an ex-husband's post-judgment motion to terminate <mask> he had been ordered to pay to his ex-wife. On appeal, the court rejected the ex-wife's claim that the trial court erred in failing to consider the declaration that she filed prior to the hearing on the motion. The ex-wife never moved to admit the declaration as an exhibit at the hearing. The court noted that "[s]ection 217 instructs that in a hearing on a motion or order to show cause, except under limited circumstances, i.e., the parties' stipulation or good cause, live testimony is required. (§ 217, subds. (a), (b).) And the court made it clear the hearing would be conducted using live testimony." ( Id. at p. 1270, 198 Cal.Rptr.3d 799, fn. omitted.)


The Italian civil separation action continued. While that action was pending, on July 24, 2001, plaintiff instituted the instant action for divorce and for ancillary relief, including equitable distribution, custody, child support, <mask> and counsel fees. On March 20, 2002 the Italian court issued a decision in the Italian separation proceeding. The Italian court found that the parties were entitled to a judicial decree of separation. The court further found that both parties were at fault and, therefore, denied the applications for alimony. Plaintiff was given custody of C. Defendant was awarded annual visitation with C., in Italy, every July 1 through July 31 and for 10 days during the Christmas vacation period. Defendant was also directed to pay child support in the amount of $413.17 euros per month and 50% of all medical, schooling and extraordinary expenses. The decision of the Italian court was affirmed on appeal.


In August 1986, pursuant to stipulation, the trial court entered a final judgment. It provided: "The Court finds that [Janice] has a 43.1% interest in [Robert]'s United States Air Force Pension, and that she shall receive the sum of Two Hundred Thirty ($230) Dollars per month, or 43.1% of said pension, whichever sum is greater. Said payments to commence on May 1, 1986, providing that [Robert] shall make such payments to [Janice] until such time as the United States Air Force is able to process [Janice]'s claims so that her share of the military pension can be paid directly to her." The judgment reserved jurisdiction over the issue of <mask>.


The judgment is reversed with respect to the modification of the 2014 pendente lite child and <mask> awards, and the permanent spousal support award, and remanded for the limited purpose of recalculating those awards consistent with this opinion. In all other respects, we affirm the judgment. We reverse and remand the postjudgment attorneys' fee order. Petitioner Dorothy Ciprari is awarded her costs on appeal.


In 1975, the Court of Appeals, in a case involving the arbitration of <mask>, held that "Notably, in matrimonial *512cases, public policy considerations abound: viz. * * * parents are chargeable with the support of their children (Family Ct Act, §§ 413, 414) * * * Nonetheless, arbitration provisions in separation agreements have been enforced as to the amount a husband must pay for the support of his * * * child * * * (Schneider v Schneider, 17 NY2d 123)” (Hirsch v Hirsch, 37 NY2d 312, 315-316). The Hirsch case also noted that agreements to arbitrate custody and visitation rights have been upheld, citing the Sheets case (supra). Later that year, however, the Court of Appeals noted that "Public policy, whether derived from, and whether explicit or implicit in statute or decisional law, or in neither, may also restrict the freedom to arbitrate. School matters are but one example; indeed, matters affecting marriage, child custody, and the like, are not subject to unbridled arbitrability” (Matter of Susquehanna Val. School Dist. [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614, 616-617). In so holding, the Court in the Susquehanna case cited the Schneider and Sheets cases (supra).


In May 2014, Mendoza filed a petition for dissolution, seeking to dissolve her more than 22-year long marriage to Elias R. Cuellar. She used the relevant Judicial Council form for the petition and checked the box indicating she was seeking <mask>. Following a mandatory settlement conference, the parties came to an agreement on certain issues. Spousal support was among the few issues left for trial.


The court recognizes that the <mask> provisions in this decision and order will greatly affect the parties’ respective post-separation standards of living. They need to consider the financial predicament they are in, and how to deal with the future. They are now suffering the consequences of their prior high standard of living. It is beyond dispute that two cannot live as cheaply as one, and that “hardship” at any economic level follows drastic losses of income. It is time for the parties to recognize the financial reality they may well face in the future, given their ages, work experience and future prospects for employment. The court urges that the parties’ focus should be on financial planning with asset and debt liquidation. The continuance of this costly litigation will not heal their wounds, both economic and emotional, already suffered, but rather will exacerbate them.


*482The Support Collection Unit argued that it was established under Social Services Law § 111-h (1) “to collect, account for and disburse funds paid pursuant to any order of child support or child and <mask> issued under the provisions of section two hundred thirty-six or two hundred forty of the domestic relations law, or article four, five, five-A or five-B of the family court act.” It is the position of the Support Collection Unit that Social Services Law § 111-h (4) requires that “Any and all moneys paid into the support collection unit pursuant to an order of support made under the family court act or the domestic relations law, where the petitioner is not a recipient of public assistance, shall upon payment into such support collection unit be deemed for all purposes to be the property of the person for whom such money is to be paid.” They argued that there is no authority under the enabling statutes or regulations which mandates the collection and disbursement of attorney fee payments in addition to child support and spousal support. The Support Collection Unit asserted that it has no legal duty or power to decide fee disputes between attorneys and their clients.


Defendant’s reliance on Matter of Cox v Cox (181 AD2d 201 [3d Dept 1992]) is misplaced. Cox concerned issues of spousal *254maintenance. As previously discussed, since 1986 child support and <mask> have been treated differently. Moreover, the right to maintenance belongs to the parties. They have broad discretion to fashion the parameters of those rights between them. The rights of children to parental support, however, belong to the children and not the parties. Parents are not free to contract away the child’s rights of support and a child is not bound by the terms of any agreement. (Matter of Boden v Boden, 42 NY2d 210 [1977]; Strenge v Bearman, 228 AD2d 664 [2d Dept 1996].)


The judgment awarded father and mother joint legal custody of the children, and ordered father to maintain health insurance for the children and to pay $1,454 per month in child support, half of school or child care costs, and half of uninsured medical expenses. The judgment awarded the family home to father, who was to continue to maintain and pay all debts concerning the home, but also provided that mother and the children could continue to live there with father until M.F.'s 18th birthday. Mother and father both waived <mask>, and the trial court retained no jurisdiction to later award spousal support.


The pertinent ruling in the Putative Spouse Order is that Florencia is Juan's "spouse or putative spouse" and that she may proceed with the claims in her Nullity Petition. The pertinent ruling in the Support Order is that Juan must pay Florencia specified amounts of <mask> arrears, temporary monthly spousal support and attorney fees and costs. Juan argues that, in reviewing these rulings, we must decide whether the judgment of dismissal in the Dissolution Action bars Florencia's claims in this Nullity Action.


While those cases are instructive, the court has identified some cases that provide even more direct support for the wife’s position. In both Adler v Adler (224 AD2d 282 [1st Dept 1996]) and Berger-Carniol v Carniol (273 AD2d 427 [1st Dept 2000]), the Appellate Division for the First Department affirmed orders directing that the husband’s retirement funds be used to pay counsel fees incurred in order to enforce the wife’s child and <mask> awards. In both decisions, the Appellate Division cited CPLR 5205 (c) (4), which provides that


Kevin also argues that because the court considered his wife's contribution to the couple's monthly expenses (which presumably were paid out of earnings from Berman & Ely), it was a "double dip" to further impute those earnings to Kevin for purposes of <mask>. We do not find this persuasive. Although the court in analyzing the factors under section 4320 noted that Kevin had reported that his wife contributed $5,000 a month to their combined expenses, there is no indication that the court considered that $5,000 as being in addition to the presumed future business income from Berman & Ely, or indeed that the $5,000 was a material factor at all in setting the amount of spousal support.


After the decree was entered, Martens made only two spousal-support payments. Martens unilaterally ceased his alimony payments, believing Blasingame had begun cohabitating with her boyfriend in March 2015. In May 2015, Blasingame remarried. On December 15, 2016, the Office of Child Support Enforcement notified Martens that it would begin withholding past-due and future claims for child and <mask> from his wages.1 As a result, Martens filed a motion to clarify the divorce decree relating to alimony. Citing Arkansas Code Annotated section 9-12-312, Martens argued that he no longer owed spousal support because his liability for alimony automatically ceased in March 2015 upon Blasingame's cohabitation, or at the very latest, in May 2015 when Blasingame remarried.


On March 15, 2016, the trial court signed temporary orders, requiring Michael to pay Donna $25,000 per month in <mask> and ordering him to pay various debts, including credit card balances and various property taxes owed on the couple's Houston home. The trial court also required Michael's employer to withhold income from Michael's paycheck to satisfy the spousal support.


. The petition specifies the grounds of the application, the name, date of birth, place of birth, age and residence of the petitioner and the name which he proposes to assume. The petition also specifies that the petitioner has not been convicted of a crime or adjudicated a bankrupt; that there are no judgments or liens of record against him or actions or proceedings pending to which the petitioner is a party; and that the petitioner is not responsible for child or <mask> obligations.


After conducting a court trial on the petition, the trial court issued a statement of decision and entered a judgment incorporating that statement. Among other issues, the court determined that the parties' date of marriage was February 6, 2009, the date G.C. and R.W. married in Connecticut. The court also concluded that the parties had separate property interests in the appreciation in the value of the marital residence, in amounts proportional to their separate property contributions to the down payment.3 The court declined to award R.W. any permanent <mask> or to order that G.C. pay any of R.W.'s attorney fees.4


We find the trial court's reliance on Thornton to be misplaced. In Thornton , the stipulated judgment dissolving the marriage required husband to pay $ 400 a month in <mask>, "commencing May 15, 1997, and continuing until further Order of the Court, death of either party, or for a period until March 1, 2003, whichever first occurs. Said spousal support shall be non-modifiable." ( Thornton , supra , 95 Cal.App.4th at p. 253, 115 Cal.Rptr.2d 380.) Two days after judgment was entered, husband moved to stay entry of judgment based on the "omission of wife's remarriage as an event terminating spousal support." ( Ibid . ) No one appeared at the hearing, and the motion was taken *1201off calendar. ( Ibid . ) Later, after wife remarried, husband moved unsuccessfully to terminate spousal support. ( Ibid. ) The Court of Appeal reversed on the ground the parties failed to expressly waive the requirements of section 4337. ( Thornton , at pp. 254, 115 Cal.Rptr.2d 380 ["there was no express waiver"], 257 ["If the parties wish to make a written agreement to waive the remarriage provision of section 4337, they must at a minimum expressly state that the supported spouse's remarriage will not terminate spousal support."].)


Juan challenges Florencia's legal entitlement to an award of temporary <mask> and fees and costs, not the amounts awarded. More specifically, he contends that, because the Dissolution Action and the Nullity Action "involve [ ] identical petitions, the same parties, and the same requests for relief" and because the dismissal of the Dissolution Action is final, application of the doctrine of res judicata to the order dismissing the Dissolution Action precludes the claims in the Nullity Action. We disagree. As we explain, since the Dissolution Action and the Nullity Action do not involve the same primary right , the finality of the dismissal of the Dissolution Action is not a bar to the prosecution of the Nullity Action.


“[n]o judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of <mask>, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce” (id.). Mr. Schiffer claims that he is entitled to summary judgment because the statute requires one party to subjectively decide whether the marriage is over. He further claims that the statute does not require an examination of objective criteria for determining what constitutes an irretrievable breakdown of the marriage nor does it provide for any defenses. While Mr. Schiffer concedes that equitable distribution and custodial issues have yet to be addressed, he avers that this lack of resolution does not equate to a failure to establish his prima facie case. Instead, he argues that he has fulfilled the necessary requirements of the statute by making a statement under oath that the marriage is irretrievably broken for at least six months, and he is thus entitled to the relief that he is seeking.


In Blair , the plaintiff was a nurse hired by a father to care for his and his wife's disabled infant. ( Blair , supra , 86 Cal.App. at p. 678, 261 P. 539.) After separation, the father moved to California; he thereafter helped the mother, child, and nurse move to California. ( Ibid . ) Prior to dissolution, the father was paying *71the nurse's salary. ( Ibid . ) In the divorce proceeding, the court ordered the father to pay child and <mask> to the mother, with the understanding the mother would pay the nurse, who knew the contents of the court order.15 ( Ibid . ) The Court of Appeal, upon reviewing the relevant statutory provisions concerning child support, including the predecessor to section 3950, determined that the father was not obligated to pay any more than what was ordered for support in the divorce decree. ( Id . at pp. 687-688, 261 P. 539.) In doing so, the court adopted a holding from the supreme court of Nebraska: " 'When in a divorce action there has been such a judicial ascertainment of the amount the father should pay for the support of his minor children, that amount is presumed to be just and reasonable *785until it is reversed or modified by a subsequent order of the court. The amount thus ascertained , so long as the decree remains in full force, is in this state the legal measure of the father's liability for the support of his child .... While the decree in the divorce action awarding the custody of the minor children to the mother and providing for an allowance for their support and maintenance remains in force, the father is not required to provide further clothing or shelter for his minor children, the measure in that respect being the amount provided in the decree .' [Citation.]" ( Ibid. , italics in original.) The appellate court gave great credence to the fact the nurse was fully aware of the trial court's order. ( Id . at pp. 684-685, 261 P. 539.) The Court of Appeal reversed the trial court to the extent it required the father to pay the nurse any money after entry of the support order. ( Id . at p. 688, 261 P. 539.)


We reject Vikash's argument that the applicable standard of review is abuse of discretion. Vikash argues we should review whether the trial court abused its discretion in terminating temporary <mask> under the considerations set forth in the Family Code. Ashlyne, however, is not challenging the *1079trial court's determination that she is not entitled to additional spousal support under California's statutory scheme. Her appellate claim is solely that the trial court erred "in denying enforcement of a contract formed by an I-864 Affidavit requiring financial support." Whether Ashlyne could enforce the I-864 affidavit in state court and whether she had duty to mitigate are questions of law.


By the 1970's, an action for legal separation was regarded as implementing the judicial concept of "divisible divorce," which recognizes that the economic aspects of a marital separation can be judicially resolved separately, in time and place, from the issue of marital status. (See generally Hull v. Superior Court (1960) 54 Cal.2d 139, 147-148, 5 Cal.Rptr. 1, 352 P.2d 161 ; In re Marriage of Gray (1988) 204 Cal.App.3d 1239, 1248, 251 Cal.Rptr. 846.) As the remedy was characterized in Faught , "Separate maintenance (now legal separation) is essentially a device to determine and settle the spouses' financial responsibilities to one another and to their minor children. While the law may once have been to the contrary [citation], a decree of separate maintenance now operates as a final adjudication of such financial aspects of the matrimonial relationship as <mask>, division of community property, and settlement of property rights, and to the extent the decree deals with such matters it is conclusive." ( Faught , supra , 30 Cal.App.3d at p. 878, 106 Cal.Rptr. 751.)


may order a party to (a) maintain any existing life insurance policy on the insured party’s life that was purchased during the marriage . . . provided that . . . the payee has been designated as a beneficiary of such policy during the marriage . . . ; (b) designate the other party as beneficiary of all or a portion of the death benefit of such life insurance for so long as the insured party so ordered has an obligation to pay <mask> to the other party, provided that . . . the payee has been designated as a beneficiary of such policy during the marriage . . . .


To modify <mask>, a trial court must first find " ' "a material change of circumstances since the last order." ' " ( Minkin , supra , 11 Cal.App.5th at p. 956, 218 Cal.Rptr.3d 407 ; Dietz , supra , 176 Cal.App.4th at p. 396, 97 Cal.Rptr.3d 616 ; see also In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480, 274 Cal.Rptr. 911 ( Smith ) ["Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order."].) In its changed-circumstances analysis, the court considers all factors affecting the supported spouse's needs and the supporting spouse's ability to pay. ( In re Marriage of West (2007) 152 Cal.App.4th 240, 246, 60 Cal.Rptr.3d 858.) An "increase in the supporting spouse's ability to pay" may constitute a change in circumstances. ( In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982, 48 Cal.Rptr.2d 864, citing In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1173, 208 Cal.Rptr. 345.) When support is governed by a marital settlement agreement or stipulated judgment, the trial court's changed-circumstances determination must " ' "give effect to the intent and reasonable expectations of the parties as expressed in the agreement." ' " ( Minkin , supra , 11 Cal.App.5th at p. 957, 218 Cal.Rptr.3d 407.)


However, in its journal entry dated December 7, 2020, the court denied Lisa’s “Motion for New Trial” in which she claimed that the court failed to make a finding regarding her “allegation of ‘unclean hands’ when the evidence was undis- puted that [Mark] had the ability to pay child support and <mask>, yet [he] intentionally elected not to pay sup- port due.” Based on this journal entry, it is evident the district court concluded the doctrine of unclean hands did not bar the requested modification of Mark’s support obligations. In our de novo review, we cannot say the court abused its discretion in reaching that conclusion. The payment history reports for Mark’s child support and alimony obligations indicate that prior to the termination of his employment with Union Pacific, Mark was generally con- sistent in paying both child support and alimony. While Mark occasionally fell behind on these obligations, the accumu- lated arrears during this period were generally not substantial. However, the payment history report for Mark’s alimony obli- gation indicates that after a payment of $931.41 on September 15, 2019, Mark paid only $0.94 in alimony to Lisa through September 8, 2020. At that date, Mark’s alimony arrearage under the parties’ decree of dissolution totaled $12,190.06. As for child support, Mark’s payments were sporadic after his termination of employment in September 2019. The record indicates that in the last third of 2019, Mark’s child sup- port payments included $73.58 in September, $1,202.50 in November, and $500 in December. In 2020, he paid $942.55 in May, $1,405 in June, and $565.38 in August. By September 8, 2020, Mark’s child support arrearage under the parties’ decree of dissolution totaled $8,791.84. Lisa directs our attention to the Nebraska Supreme Court decisions in Voichoskie II, supra, and Marr v. Marr, supra, as analogous to the facts in the present case. In Voichoskie II, the Nebraska Supreme Court noted that the former husband, in addition to his poor history of child support payments which had frequently “been forcibly extracted from him by - 468 - Nebraska Court of Appeals Advance Sheets 30 Nebraska Appellate Reports HODGEN v. HODGEN Cite as 30 Neb. App. 456


Husband and wife married on January 31, 2004, and separated on February 1, *5612013. Six months later, husband petitioned to dissolve their marriage, and on December 2, 2013, a judgment was filed using the Judicial Council of California form FL-180 and a seven-page attachment (form SB-12035),2 which set forth the court's orders respecting the parties' agreement. According to form SB-12035, husband was required to pay <mask> in the sum of $ 1,000 a month, commencing on October 1, 2013 and continuing until August 1, 2017. The parties agreed that spousal support shall not "terminate upon the death of either party or the remarriage of the supported *1198party, or further order of the court, whichever occurs first" when they did not check the box next to this requirement.3 The parties executed the necessary paperwork without the assistance of counsel.


DeeDee's principal complaint about the $5,000 per month permanent <mask> award is that it is disproportionately low when compared to Joe's income and ability to pay, particularly considered in light of the "upper class" marital standard of living described by the trial court. "[W]e review spousal support orders under the deferential abuse of discretion standard. [Citation.] We examine the challenged order for legal and factual support. 'As long as the court exercised its discretion along legal lines its decision will be affirmed on appeal, if there is substantial evidence to support it.' [Citations.] 'To the extent that a trial court's exercise of discretion is based on the facts of the case, it will be upheld "as long as its determination is within the range justified by the evidence presented." ' " ( In re Marriage of Blazer , supra , 176 Cal.App.4th at p. 1443, 99 Cal.Rptr.3d 42 ; In re Marriage of Ackerman, supra, 146 Cal.App.4th at p. 197, 52 Cal.Rptr.3d 744.)


Prior to the dissolution hearing, Mendoza filed a trial brief and various other documents, including some related to factors the court considers in *942determining whether to award permanent <mask> and the appropriate amount. The trial brief specified she was requesting "[t]he court make a permanent spousal support order, ordering [Cuellar] to pay monthly spousal support to [her] in accordance with her 'Proposed Needs.' " Nowhere in the trial brief or in the accompanying documents did Mendoza request temporary spousal support.


The only evidence that the transfer was in good faith came from Kevin's declarations and papers below, in which he insisted that he did not transfer the business to avoid his support obligations. The court did not believe him, and that credibility determination is binding on this court. ( Hill & Dittmer, supra , 202 Cal.App.4th at pp. 1051-1052, 136 Cal.Rptr.3d 700 ; see In re Marriage of Meegan (1992) 11 Cal.App.4th 156, 162, 13 Cal.Rptr.2d 799 [determination of good faith is a credibility determination within the trial court's discretion].) Although Kevin argues that, unlike in Dick , there was no evidence that he continued to have access to the business, the burden was on him, as the party seeking modification, to prove a material change of circumstances. (Stephenson, supra , 39 Cal.App.4th at p. 78, 46 Cal.Rptr.2d 8.) Here, the court found that the "material change" of the business transfer was a sham and therefore could not justify further modification of the <mask> order.7


*1344However, "a necessary exception to the one final judgment rule" is the collateral order doctrine, pursuant to which an interlocutory order is appealable if it finally determines the rights of the parties in relation to that matter, leaving no further judicial acts to be done in regard thereto, and directs the payment of money or performance of an act. ( Skelley , supra , 18 Cal.3d at p. 368, 134 Cal.Rptr. 197, 556 P.2d 297.) In Skelley , for example, our Supreme Court held that a direct appeal lies from an order reducing temporary <mask> and denying attorney fees and costs. ( Ibid . ) As specifically applicable here, In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 147 Cal.Rptr.3d 453 reaffirms that an order initially setting temporary spousal support is " ' "directly appealable as a final judgment independently of the main action." ' " ( Id. at p. 1074, 147 Cal.Rptr.3d 453, quoting In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595, 124 Cal.Rptr.2d 342.) This is not a new concept; even prior to the Family Code, orders granting or denying temporary alimony were also "directly appealable." ( Greene v. Superior Court (1961) 55 Cal.2d 403, 405, 10 Cal.Rptr. 817, 359 P.2d 249.)


It must be emphasized that the payments required over a 10-year period represent Mrs. Maloney’s equitable share in plaintiff’s medical license, and not <mask>. The equitable distribution statute created this new class of property, heretofore unknown to the common law, when it classified all property as "marital” or "separate”. The fact that the license is not property in the traditional sense, as something with a market value, is irrelevant. It is nonetheless property as opposed to the concept of maintenance, which attempts to permit the recipient an opportunity for financial independence. All of the foregoing has been well settled by the Court of Appeals in OBrien v O’Brien (66 NY2d 576). Following the lead of O’Brien the Second Department has recently held that it is error for the court to treat the wife’s award of a portion of her husband’s pension, i.e., marital property, as an additional source of maintenance rather than as a property division (Buzzeo v Buzzeo, 141 AD2d 490).


Here, the trial court did not explain why it was just and reasonable to fix DeeDee's support award at $5,000 per month when (1) Joe's expected monthly income was $47,040, and (2) $5,000 per month in support, even when combined with DeeDee's monthly income of $20,790 would not support a standard of living equivalent to the marital standard of living described by the court. Having apparently disregarded DeeDee's FL-150 expense calculator, we are left to guess what evidence, if any, supported the trial court's determination that the support award is *111sufficient to meet DeeDee's "needs." Nor did the trial court relate the amount of the award to the marital standard of living. We therefore reverse the permanent <mask> award and remand for recalculation and clearer findings.


As a threshold matter, we conclude substantial evidence supports the trial court's finding of changed circumstances sufficient to justify reduction of the additional <mask> paid by Wife. But the court erred when, in fashioning the specific modification, it failed to consider the parties' reasonable expectations as expressed in their dissolution agreement that Wife's earnings would continue to increase. We therefore reverse and remand for modification of Wife's spousal support obligations consistent with the principles expressed in this opinion.


The Family Code does not specifically define "income" for purposes of section 271. But section 4061 does explain that for purposes of allocating additional child support obligations in proportion to the parents' net disposable income, "the gross income of the parent receiving the <mask> shall be increased by the amount of the spousal support received for as long as the spousal support order is in effect and is paid."7 (§ 4061, subd. (c).) Similarly, it is well settled that spousal support is includable in gross income for tax purposes. (See Hogoboom & King, Cal. Prac. Guide-Family Law (TRG 2017 rev. ed.) ¶ 10:504.) Thus, the standard income and expense declaration, form FL-150, that the court requires parties to file in connection with requests for orders to modify spousal support lists spousal support from either the marriage at issue or a different marriage as a form of reportable income. Not surprisingly then, courts have referred to *926spousal support as "income" in the context of sanctions awards. (See, e.g., In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 180, 110 Cal.Rptr.2d 111 ["Wife also receives income from rental properties, part-time work, and spousal support."].) As there is no indication the Legislature intended to preclude the payment of sanctions from spousal support funds, we decline Tonya's request that we exclude spousal support from the meaning of the term "income" in section 271 subdivision (c).


In October 2013, the trial court entered findings and order after hearings that awarded Launa temporary child support of $981 for the parties' son and $1,634 for their daughter. The order also awarded temporary <mask> of $2,774 per month. The order included a DissoMaster report that showed the court's determinations of various factors relevant to calculating the support payments. The order denied without prejudice Launa's request for the valuation of Huddleston Crane Services, Inc. and any related corporations. The court concluded that the ownership interest of David was obtained as a gift from Father.


Joseph and Diane were married in 1988 and had two sons, born in February 1991 and November 1994. In August 2004, the marriage was dissolved and the El Dorado County Superior Court (the California court) ordered Joseph to pay Diane $400 a month in <mask>. Joseph, Diane, and the children then moved to Utah. Joseph returned to California in March 2005, where he remained until he returned to Utah in May 2010. He stayed in Utah until July 2013, at which time he returned to California.


The parties were married on April 30,1978, had no children from their union, and by February 1, 1982 entered into a separation agreement which specifically waived maintenance and support by either party. On April 26,1982, petitioner filed a <mask> petition in Rensselaer County Family Court alleging, in part, that if she did not receive the relief requested, she would be forced to become a public charge. On August 31, 1982, Family Court directed a permanent order of spousal support, payable by respondent, in the amount of $50 per week.


As previously noted, the Darlings’ divorce judgment “ordered and adjudged” that, except for the coop, “any and all marital property [had] been previously divided between the parties to their mutual satisfaction.” In addition, the judgment “ordered and adjudged” that “neither party shall have any claim against, or interest in, the property of the other”; “the parties waive any claim for <mask> and/or maintenance as against the other party both now and in the future”; and that “the parties waive any claim for counsel fees with respect to [the] proceeding as against the other party both now and in the future.”