There are may circumstances which courts recognize warrant revisiting a divorce resolution. On the other hand, ongoing litigation is often unfounded and a result of the anger, bitterness, sadness, desire for revenge, etc.
In her February 3, 2012 decision in D.W. v. R.W., Westchester County Supreme Court Justice Francesca E. Connolly imposed $17,500.00 in sanctions and another $42,707.29 in counsel fees against a pro se (self-represented) ex-wife who refused to abide by repeated rulings requiring the ex-wife to discontinue her attacks on a divorce settlement reached over seven years earlier.
Following that settlement, the ex-wife had engaged in extensive post-judgment litigation to vacate the underlying agreement on the grounds that she lacked the mental capacity to understand and agree, and that the agreement was unfair, unconscionable, the product of overreaching, fraud, or some variation thereof. Her numerous attempts to challenge the stipulation were considered and rejected by several lower and appellate courts.
Nevertheless, in October, 2010, the ex-wife commenced another action against 23 defendants, including her ex-husband, her children, her former in-laws, her ex-husband’s former attorneys, and other entities. In an 81-page complaint, she claimed breach of contract and fraud for the failure to disclose various assets during the divorce proceedings. She claimed to have discovered documents showing the fraud by going through her ex-husband’s garbage cans outside his residence.
By prior decision dated March 31, 2011, this complaint was dismissed. Moreover, the ex-wife was enjoined from instituting further actions or filing other motions without first obtaining written leave of court. Sanctions and counsel fees were granted, although not determined in amount.
Thereafter, the ex-wife (without leave of court) moved to renew and reargue the March 31, 2011 decision, adding requests for other affirmative relief, including compensation for her time and costs associated with making the motion. The defendants cross-moved for contempt, sanctions and counsel fees.
While those motions were pending, the ex-wife moved once again, and again without first obtaining leave of court, for a default judgment and to “reverse” the decision and order dated March 31, 2011.
By decisions dated June 10, and August 30, 2011, the ex-wife’s motions to renew and reargue and to reverse were both denied. The motions were found to be meritless and “nothing more than continued vexatious litigation against the defendants.” The cross-motions for sanctions were granted.
Justice Connolly scheduled a hearing on the amount of sanctions and fees. That hearing was adjourned, at the request of the ex-wife, to enable her to retain counsel. At the time of her adjournment request, the ex-wife also provided the court with a letter from her treating neurologist stating that the ex-wife suffered from a traumatic brain injury, needing assistance for her hearing difficulties. A request was made for unspecified written accommodations and to compensate for the ex-wife’s oral and aural deficiencies and cognitive difficulties. However, at the adjourned date of the hearing, the ex-wife again appeared without an attorney, instead bringing with her a “note-taker” to assist her during the hearing. The ex-wife was provided with a listening device and the note-taker was allowed to sit beside the ex-wife at counsel table. No other requests for accommodations were made.
On the basis of that hearing, Justice Connolly awarded sanctions against the ex-wife for her “frivolous conduct,” as authorized by Court Rules (22 N.Y.C.R.R. §130-1.1[a]) Conduct is deemed frivolous if (1) it is completely without merit, (2) undertaken primarily to delay or prolong litigation, or to harass or maliciously injure another, or (3) asserts false material factual statements. A maximum of $10,000.00 in sanctions may be imposed for any single violation. Sanctions against non-parties are payable to the Commissioner of Taxation and Finance (sanctions against attorneys are deposited with the Lawyers’ Fund for Client Protection).
This Court has already determined that the plaintiff’s conduct in filing the plenary action to vacate the stipulation of settlement and judgment of divorce, and other relief, was without merit and was undertaken to harass and maliciously injure the defendants. It has now been over a decade since the divorce action was commenced and over six years since the judgment of divorce was entered. Nonetheless, plaintiff continues in her campaign against the defendants despite the injunction against her. … However, other than making a conclusory claim that she did not believe her conduct was frivolous, no convincing reasons were established to avoid the imposition of sanctions.
Justice Connolly imposed sanctions of $2,500.00 for the ex-wife’s commencement of the 2010 action to set aside the divorce judgment and incorporated settlement agreement. Additional sanctions was imposed against the ex-wife for violating March 31, 2011 order which had enjoined the ex-wife from further litigation without leave of court. A $5,000.00 sanction was imposed for the ex-wife’s motion to “reverse” the March 31, 2011 decision. Another $10,000.00 was imposed for requesting other affirmative relief on the ex-wife’s motion to renew and reargue the March 31, 2011 order.
Finally, Justice Connolly granted the defendants essentially all their counsel fees and disbursements for the new action and motions. They totaled $42,707.29.
The emotional issues often exacerbated by contested divorce litigation invites consideration of the Collaborative Divorce Process. In that process, each spouse has his or her own lawyer, specially trained and committed to the resolution of issues by agreement. The parties commit to financial openness and “transparency” in an effort to address each party’s needs and concerns. Of particular note, the “interdisciplinary model” makes useof trained mental health professionals who serve as “coaches” or “family specialists” (not as therapists) to keep negotiations on track, unblocked by emotional issues which likely arise. Neutral financial specialists may be used to reach an agree-upon statement of net worth and expenses, and to project the long-term impact of any proposal. With those tools and that setting, a couple is better able to reach an agreement which enables them to transition to the next stage of their lives with minimal damage caused by the divorce, itself.