In a lengthy, thoughtful August 29, 2017 opinion in S.M. v. M.R., Richmond County (Staten Island) Supreme Court Justice Catherine M. DiDomenico resolved the financial issues incident to the parties’ divorce. Among the issues were those that arose from parties’ family and financial ties to Egypt, the absence of proof on various financial matters, and the wife’s 1999 medical degree in Egypt, all but abandoned since moving to the United States in 2002 resulting in her current need for rehabilitative maintenance.

The final issue tackled by the Court was the wife’s request for an award of counsel fees in the sum of $43,000 for her attorney’s handling of the entirety of this divorce proceeding. The wife based her claim upon the fact that she was the non-monied spouse in this action (D.R.L. §237[a]). In support of her claim, the wife submitted a copy of her attorneys’ retainer agreement, together with legal billing.

The husband objected to any award on the basis of the language of that retainer agreement: the wife and her attorney had agreed to “cap” counsel fees at the sum of $10,000.

You agree to pay Your Attorney for legal services at the rate of $250.00 per billable hour and $750.00 per each half-day appearance in Court by Steven Scavuzzo Esq. The foregoing rates are valid for services rendered in calendar years 2013 and 2014. In the event that such rates are modified you will be advised and requested to execute an amendment reflecting the new rates. Legal fees in this matter shall be capped at $10,000, not including costs, disbursements, post-judgment enforcement and any appeal You wish to pursue.”

The husband argued that this cap should inure to his benefit; that as the wife can never be charged more than $10,000 for the divorce proceeding, as a matter of law he cannot be responsible for any more than that amount. The wife’s attorney should be prohibited from seeking an award of counsel fees by the clear language of his own retainer agreement

Continue Reading Husband Benefits From Wife’s Retainer Agreement Cap On Counsel Fees

Legal feesIn its May 1, 2015 decision in Mura v. Mura, the Appellate Division, Fourth Department, affirmed an order of Monroe County Supreme Court Justice Richard A. Dollinger that enforced an ex-wife’s attorney’s charging lien against a fund from which child support arrears were to be paid.

The parties were divorced in 1993. The Monroe County judgment of divorce awarded the wife child support and ordered the husband to pay $25,226.72 in child support arrears that had accrued from the commencement of the divorce action through entry of the judgment.

For 16 years, the child support obligation was not enforced. In April 2011, the wife hired Mark Chauvin Bezinque, Esq., to recover the accumulated child support arrears that, with interest, totaled $549,403.62 as of September 2011.

At the time, the husband owned real property in Ontario County. Bezinque filed the judgment in Ontario County and commenced actions in both Ontario County and Monroe County to restrain the sale of the Ontario property. While those proceedings were ongoing, the husband sold the property in violation of a court order. Upon Bezinque’s motion, the husband’s share of the proceeds from the sale of the home was placed in escrow “in anticipation of a final judgment for unpaid child support.” Bezinque referred the wife to another law firm for the preparation of executions and levies against the escrowed funds held by the husband’s then attorneys, and requested payment of the outstanding balance of his legal fees from those funds. The wife did not respond to that request. Bezinque thereafter moved by order to show cause seeking, inter alia, a charging lien pursuant to Judiciary Law § 475 against the escrowed funds sufficient to cover his outstanding fees. The wife opposed Bezinque’s motion.

Continue Reading Attorney's Charging Lien Enforced Against Child Support Arrears

In a 3-1 decision on February 4, 2015 in Cohen v. Cohen, the Second Department disqualified a prominent Long Island matrimonial firm from representing the wife in this 2011 divorce action.

It was disputed whether in November 2010 the husband had consulted Steven J. Eisman, senior partner in Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP. The husband was unable to substantiate his allegation that he consulted with Mr. Eisman. Mr. Eisman stated that while the husband had scheduled an appointment for a consultation, he canceled it. Mr. Eisman further asserted that the husband had consulted with various top matrimonial attorneys in the area to prevent the wife from hiring an attorney.

However, it was not disputed that the husband’s brother met with Mr. Eisman in July, 2010. The brother stated that he had shared with Mr. Eisman confidential information concerning various businesses the husband and his brother owned and in which they shared common interests. This included detailed information concerning the day-to-day operations of the businesses which he operated jointly with the husband, illustrated by a diagram, described how the businesses earned a profit, and provided his opinion as to the value of the businesses. Mr. Eisman acknowledged that he had discussed with the husband’s brother “surface details” concerning, among other things, the husband’s brother’s employment, the brother’s marriage, residence, and children.

The brother (and obviously the husband) never retained the law firm as his counsel. The wife did. The husband moved to disqualify Mr. Eisman’s firm.

The Second Department first noted that the disqualification of an attorney is generally a matter resting within the sound discretion of the court. In his ruling below, Supreme Court Justice Norman Janowitz had denied that motion.

Nonetheless, the Second Department reversed, noting “doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety.” The appellate court held that here, Justice Janowitz should have granted the husband’s motion to disqualify the law firm. Given the undisputed evidence of the consultation between Mr. Eisman and the husband’s brother, as well as the nature of the matters disclosed there was a resulting substantial risk of prejudice.

The very appearance of a conflict of interest was alone sufficient to warrant disqualification of the law firm as a matter of law without an evidentiary hearing, and notwithstanding the existence of a factual dispute as to whether Eisman met with the [husband].

Continue Reading Disqualification of Counsel: Is It A Shield Or A Sword?

The alleged failure of the mediator and the husband’s counsel to advise the husband that a court need not apply the C.S.S.A. formula to the husband’s entire agreed-upon income of $1,200,000.00 per year income is not a basis to set aside a divorce settlement agreement, or its $29,500.00 per month child support obligation. So held Westchester County Supreme Court Justice Lawrence H. Ecker in his January 16, 2014 opinion in A.B. v. Y.B.

The couple involved separated after 12 years of marriage. Following three years of mediation, the parties entered into an agreement that resolved issues of custody and access to the parties’ three children, maintenance, child support, and equitable distribution. The husband is a 50% equity partner in a brokerage firm. The wife is owner and operator of her own business.

Upholding the agreement, Justice Ecker took pains to quote several of its provisions. One acknowledged that the parties had waived the “compulsory financial disclosure” requirements of the Domestic Relations Law and court rules, and agreed not to exchange Net Worth Statements. Nonetheless, the parties represented to each other that each made a full and complete disclosure of assets, liabilities, income and expenses, and that they relied on the information provided.

The agreement recited the husband’s disclosure, to the best of his knowledge, of his gross personal 2010 income as approximately $156,427.00. The parties agreed to use the 2010 income because their 2011 income was not yet available. The Husband disclosed that in no event was his income from any and all sources more than $156,427.00 in said year.

Nonetheless, for purposes of the agreement, the parties agreed to use an imputed income of$1,200,000 in computing the child support calculation under the Child Support Standards Act.

The parties acknowledged that they reached their agreement with the aid of the mediator, but that the mediator provided no legal representation to either of the parties. Further, although “the mediator may have provided information or opinions concerning the state of the law generally, neither party has relied upon such information or opinions in executing this Agreement.”

The parties further represented that each had ample opportunity to obtain independent legal counsel, and counsel [apparently recommended by the mediator] for each spouse was named.

As to the basic child support obligation, the agreement provided it was agreed that the the husband’s would pay $29,500 per month [$354,000 per year] for 12 years, 5 months, subject to a cost of living increase biennially. The husband was further responsible for 100% of discretionary expenses and add-on expenses, including private school tuition for all three children, private college expenses, camp and summer programs, religion education expenses, Bar and Bat Mitzvah expenses, health insurance and unreimbursed medical expenses.

Continue Reading Claimed Ignorance of C.S.S.A. Treatment of Income Over Cap Not Basis to Set Aside Divorce Settlement Agreement

Gavel main.jpgNot every representation of one spouse during a marriage will disqualify an attorney from representing the other spouse in the couple’s divorce. Such was the holding of the Second Department in its December 5, 2012 in Gabel v. Gabel. In doing so, the appellate court reversed Richmond County Supreme Court Justice Barbara Irolla Panepinto’s disqualification of the husband’s counsel in this divorce action. The wife had moved to disqualify her husband’s counsel based on counsel’s formation of the wife’s corporation.

A party seeking disqualification of the adversary’s lawyer must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse.

However, the Second Department noted the advice of the Court of Appeals against the “mechanical application of blanket rules,” in favor of the careful appraisal of the significant competing interests inherent in attorney disqualification cases. A party’s entitlement to be represented by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted.

Here, the wife failed to show that the prior representation was substantially related to the current representation. The wife did not argue that the prior representation concerned any confidential information regarding the value of the corporation. There were no facts in the record to support such a finding, nor was the attorney provided with any information that was not contained in the corporate filing itself. Further, the wife refused to provide the husband with discovery concerning the corporation, contending that the corporation was “closed” and that the wife never realized any profits from it.

Under the particular circumstances of this case, there was nothing to suggest an appearance of impropriety concerning the attorney’s representation of the plaintiff in the divorce action. The wife’s motion for disqualification should have been denied.

John Z. Marangos, Esq., of Staten Island, represented the husband.

Update: In a decision issued December 6, 2012, the Appellate Division, Third Department, disbarred Mr. Melendez for his failure to disclose to the Committee on Professional Standards his child support arrears and other related misconduct:

Respondent is guilty of very serious professional misconduct. He exhibited a lack of candor on his application for admission. As we recently stated, candor and the voluntary disclosure of negative information by an applicant are the cornerstones upon which is built the character and fitness investigation of an applicant for admission to the New York State bar.


Original July 17, 2012 entry:

Attorney drawing.jpgWilliam Eric Melendez was admitted to the practice of law in New York in 2009. Although he resides in Puerto Rico, he maintains an office for the practice of law in New York.

On January 26, 2011, the Superior Court of Puerto Rico issued an order finding Mr. Meledez had failed to make child support payments for over 36 months and was $90,897.84 in arrears.

In Matter of Melendez, the First Department suspended Mr. Melendez immediately, and until his arrears were paid.

New York Domestic Relations Law §244–c provides for the suspension of a professional license if the bearer of such license has arrears in child support obligations amounting to four months or more. Section 244-c(a) provides:

In any proceeding for enforcement of a direction or agreement, incorporated in a judgement or order, to pay any sum of money as child support or combined child and spousal support, if the court is satisfied by competent proof that the respondent has accumulated support arrears equivalent to or greater than the amount of support due pursuant to such judgment or order for a period of four months and that the respondent is licensed, permitted or registered by or with a board, department, authority or office of this state to conduct a trade, business, profession or occupation, the court may order such board, department, authority or office to commence proceedings as required by law regarding the suspension of such license, permit, registration, or authority to practice and to inform the court of the actions it has taken pursuant to such proceedings. . . .

Based on its findings of non-support, the Superior Court of Puerto Rico referred the matter to the Appellate Division. That court presides over attorney discipline. The First Department, in turn, referred the matter to the Departmental Disciplinary Committee. A Hearing Panel of that committee reported and recommended the suspension of Mr. Melendez.

Here, the procedural requirements under Judiciary Law §90(2-a)(b) were satisfied and respondent failed to appear and assert the only applicable defense, proof of full satisfaction of arrears. Under the circumstances, respondent’s immediate suspension is warranted.

The suspension will continue until the Court has been notified by the Superior Court of Puerto Rico, or its designate support collection unit, that all child support arrears have been satisfied in full, and until further order of the Court.

The ruling is not unique. In Berger-Carniol v Carniol, 273 A.D.2d 427, 710 N.Y.S.2d 114, the Second Department in 2000 held that it was proper to direct the commencement of proceedings to suspend Mr. Carniol’s licenses to practice law and to act as a mortgage broker, mortgage banker, insurance broker, and real estate broker, based on evidence that he had accumulated support arrears equivalent to or greater than the amount of current support due for four months.

Attorney discipline may be imposed without resort to D.R.L. §244-c. Also in 2000, in Matter of Klagsbrun, 279 A.D.2d 192, 717 N.Y.S.2d 297, the Second Department disbarred an attorney who was found to have engaged in conduct prejudicial to the administration of justice, in violation of Code of Professional Responsibility DR 1–102(a)(5) (22 NYCRR 1200.3[a][5]). In 1995, the Supreme Court, New York County, had directed the Mr. Klagsbrun to make the following payments in a matrimonial action: (a) $1,812,758.75 to his former wife, Shulamith Klagsbrun, (b) $60,000 to Shulamith Klagsbrun, and (c) $296,075 to Elaine Rudnick Sheps, Esq. Although Mr. Klagsbrun had actual notice of the provisions of the order and judgment, he failed to comply with them.

Whether to suspend a license, absolutely or conditionally, may require balancing discipline with the need to continue the ability of the support provider to earn a living. Where that balance is struck may well reflect the good faith efforts of the support payor to partially comply with the support obligations. In all events, license suspension remains an extraordinarily powerful weapon available to enforce support.

Collaborative Practice Logo.jpgMonica and Mitchell Mandell were married in 1998. They have three children. After Mr. Mandell moved out last year, his wife retained attorney Ellen Jancko-Baken to represent her. Ms. Mandell was interested in pursuing the “Collaborative Law” process.

After three perhaps “preliminary” meetings, the contemplated Collaborative Process fell apart. Ms. Mandell used her same attorney to commence a divorce action. Her husband, then, looked to disqualify his wife’s lawyer, claiming such representation was barred by the rules of Collaborative practice.

As noted by Westchester Supreme Court Justice Alan D. Scheinkman in his June 28, 2012 decision in Mandell v. Mandell, the Collaborative Process is a form of dispute resolution in which the parties retain counsel specially trained in collaborative law and enter into a contract to negotiate a settlement without involving the Court.

As Justice Scheinkman noted, one of the principal features of the Collaborative Process is that, if the matter is not resolved, the attorneys who represented the parties in the unsuccessful effort to reach a settlement may not thereafter represent the parties in contested litigation. Among other benefits, this hallmark of the process:

  • eliminates pre-litigation posturing;
  • provides clients with a greater degree of influence in candid negotiations in which the clients participate directly;
  • motivates the parties to continue working toward a mutually agreeable resolutiont due to the prospective expense of having to hire new lawyers if the matter has to go to court;
  • makes it clear that counsel are committing themselves to the process of dispute resolution by having counsel agree to absent themselves from any future litigation;
  • gives counsel an economic incentive to stick with the process;
  • discourages counsel from abandoning the process since their role, and their fees, would end; and
  • conversely, provides counsel with no personal monetary incentive to encourage litigation.

In light of his wife’s interest in using the Collaborative Process, the husband retained Neil Kozek. Both Ms. Jancko-Baken and Mr. Kozek are members of the International and New York Associations of Collaborative Professionals.

Continue Reading Counsel Not Disqualified From Litigation Where Collaborative Divorce Participation Agreement Not Signed

Blank Check iStock_000013161843XSmall.jpgWith the addition on August 13, 2010 of D.R.L. §170(7), making New York the 50th state to grant no-fault divorces, Governor Patterson also signed an amendment to D.R.L. §237. That amendment creates a rebuttable presumption that while a divorce action is pending, the “less monied” spouse shall be awarded counsel and expert fees and expenses on a timely basis.

Although the award(s) remain a matter of discretion, as justice requires, the court is charged with “assuring” that the less-monied spouse is adequately represented from the commencement of the action.

Designed to maintain a level playing field throughout divorce litigation, the amendment is shortsighted, if not foolhardy. Eliminating the market-place checks on litigation expenses can only lead to abuses.

When a client must oversee and approve fees and expenses, every decision becomes a business decision. Is contemplated action reasonable in light of all factors? However, the amendment to D.R.L. §237 is an open invitation to exhaust every discovery device and have experts value every asset. Among the questions which remain:

  • To what extent courts will prospectively challenge a divorce lawyer’s statement of what must be done to “adequately” represent the client?
  • Will court-appointed neutral experts be mandated to avoid awardable fees?
  • To what extent will courts challenge hourly rates?
  • To what extent will awards be recoupable or reallocated?
  • To what extent may marital property be used to satisfy these awards?

The resources of Supreme Court Justices are already taxed beyond propriety. There is no monitoring system presently available to prevent anticipated abuses. As a result, perhaps after a period of careful judicial scrutiny, the courts may lapse into doing what is easy: finding that the “presumption” has not been rebutted and signing a blank check.

Before that occurs, the matrimonial bar, the courts, and the legislature must take action to ensure that awards of litigation expenses do not wipe out the parties’ assets and are not used as a weapon to coerce unjust settlements.