Alternative Dispute Resolution (ADR)

The calculations required by the C.S.S.A. to be made by an arbitrator in child support determinations provide the “extraordinary circumstances” needed  to warrant court-ordered disclosure of documents from a self-employed ex-husband. Such was the ruling of Kings County Supreme Court Justice Jeffrey S. Sunshine in his November 6, 2013 decision in Weisz v. Weisz.

In 2003, the Weisz’s had entered into a stipulation of settlement of their divorce in which they agreed that all controversies, disputes, or interpretation of this agreement, would be arbitrated by a specified rabbi. The 2004 judgment of divorce incorporated by reference that stipulation which survived and did not merge into the judgment.

In 2012, Ms. Weisz brought on an order to show cause seeking a stay of a post-judgment arbitration proceeding and the disqualification of the specified rabbi as the arbitrator. The stay was granted as to custody and visitation issues, but denied as to all financial issues.

The issues to be arbitrated related to an upward modification of child support, child support arrears, unreimbursed medical arrears, child support statutory add-on arrears, tutor expenses and spousal support.

Continue Reading Court Orders Disclosure to Aid in Arbitration of Child Support Issues

Palmieri.jpgResolving the rights and obligations of a couple incident to their divorce often involves the delicate balancing of property rights, spousal and child support, and custody and parenting issues. Attempting an orderly resolution in different forums simultaneously may be impossible.

The July 26, 2012 decision of Nassau County Supreme Court Justice Daniel Palmieri in Loike v. Kletenik, shows just how messy things can get. That decision resolved a husband’s application to vacate the award of a Jewish tribunal, a “Beth Din,” and to downwardly modify a Consent Order of support entered October 25, 2010 before Nassau County Family Court Support Magistrate Neil Miller. That order directed the husband to pay bi-weekly support for the three minor children of the marriage.

In the subsequently commenced Supreme Court divorce action, Justice Jeffrey S. Brown issued a pendente lite order that denied a request for temporary child support because the Consent Order was in place. This, Justice Palmieri opined, lent additional judicial force to the terms of the Consent Order and effectively adopted it in lieu of a separate order for temporary child support.

The wife thereafter moved to hold her husband in contempt for his failure to comply with the temporary support order.  However, that contempt motion was withdrawn on March 7, 2011 when the parties entered into a written agreement to arbitrate their financial and other issues before the Beth Din.

After the parties entered that agreement, the Family Court on June 7, 2011 issued a Final Order of Custody and Parenting Time (Stacey D. Bennett, FCJ). However, even though the parties had earlier entered their agreement to arbitrate, the Beth Din arbitrators were not empowered to make final and enforceable decisions about custody and visitation. New York’s public policy requires that such decisions only be made by the secular courts.

On that basis, Justice Palmieri vacated that portion of the Beth Din award that provided that unresolved disputes concerning the children would be referred to a named Rabbi.

A party gives up substantial rights under both substantive law and procedure when electing to arbitrate. Appellate review is all but completely absent.

Here, having participated in the Beth Din arbitration and failing to raise objections to the panel, the husband waived any claim that the process was tainted or was biased against him. Quoting the  of Appeals in Matter of Silverman (Benmore Coats), 61 N.Y.2d 299 (1984), Justice Palmieri held:

The only basis upon which an award can be vacated at the behest of a party who participated in the arbitration. . . Is that the rights of that party were prejudiced by corruption, fraud or misconduct in procuring the award, partiality of an arbitrator, that the arbitrator exceeded his power or failed to make a final and definite award, or a procedural failure that was not waived.

The husband’s claims that the arbitrators exceeded their powers must rest on the fact that the award violated a strong public policy, was irrational, or clearly exceeded a specific limitation on the arbitrators’ powers.

Continue Reading Substantial Legal and Procedural Rights Are Lost in Divorce Arbitration Before Jewish Beth Din Panel

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

As noted in the previous blog, Gazzillo Ralph.jpgagreements which resolve marital rights and obligations are encouraged. They will be enforced absent demonstrable improprieties.

In his January 23, 2011 decision in Capone v. Capone (pdf), Suffolk County Supreme Court Justice Ralph T. Gazzillo granted summary judgment dismissing a wife’s action to rescind and declare null and void a November, 2008 Separation Agreement.

In January, 2010 the husband commenced an action for divorce based on the parties living separate and apart pursuant to that agreement for a period in excess of one year (“grounds” for divorce under Domestic Relations Law §170[6]). The wife responded by bringing her own action in February, 2011 attacking the agreement on the grounds that it was the result of overreaching, coercion, and undue influence. She also alleged that it was manifestly unfair, unjust, inequitable and unconscionable.

The husband moved for summary judgment dismissing the wife’s action. Justice Gazzillo noted that summary judgment is a drastic remedy, only to be granted in the absence of any triable issues of fact. Justice Gazzillo held that the wife failed to demonstrate that the agreement was unfair when made or that there was overreaching in its execution. Quoting the 1977 decision of the Court of Appeals in Christian v.Christian, 42 NY2d 63, 396 NYS2d 817, Justice Gazzillo stated:

Judicial review of separation agreements is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions.

Here, the parties’ Separation Agreement had been entered with the assistance of Divorce Mediation Professionals (Lenard Marlow, J.D.). The parties only entered their agreement following at least 10 conferences, letters between the parties and the mediator, revisions, a written suggestion by the mediator to the wife that she consult with her own attorney to discuss changes to the agreement, and the valuation of the husband’s pension.

Continue Reading Wife's Attack on 2-Year-Old Mediated Separation Agreement Summarily Dismissed

Connolly Francesca.jpgThere 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.

Continue Reading Sanctions and Fees Totaling $60,000 Imposed Against Ex-Wife; Divorce Litigation Often Keeps Going, and Going, and Going . . .

Rip up contract 3.jpgShlomo Scholar and Shoshana Timinisky married in 2005. They had one child the next year.  The year after that they entered a stipulation of settlement to resolve their divorce action.

Included in that stipulation was the parties agreement that Ms. Timinisky would have sole custody of the parties’ child. However, the parties also agreed that custody rights be limited by an agreement to share decision-making on all issues relating to the child’s education. The parties pre-selected an arbitrator to resolve their failure to agree on such issues.

Such a disagreement arose. However, in a September 9, 2010 order, Queens County Supreme Court Justice Thomas Raffaele denied the father’s motion to enforce the parties’ stipulation. Instead, without a hearing, the mother was granted sole decision-making authority with respect to the child’s education in the event that the parties were unable to agree to a parenting coordinator (traditionally employed to facilitate parent communication and the mediation of disputes).  Justice Raffaele also disqualified “a certain individual from arbitrating issues regarding the education of the child.” Finally, on its own motion, Justice Raffaele enjoined Mr. Scholar from bringing any further motions without the permission of the Supreme Court.

In an August 9, 2011 decision of the Appellate Division, Second Department, in Scholar v. Timinisky, that Order was affirmed. The appellate court ruled that Justice Raffaele properly determined that a change of circumstances required a modification of the parties’ stipulation of settlement to protect the best interests of the child. New York’s best interest standard was to be applied to resolve a dispute regarding parental joint decision-making authority.

Continue Reading Court Avoids Parents' Agreement to Arbitrate Disputes Over Education of Child

We are not moving cropped.jpg

The May 5, 2011 decision of the Appellate Division Third Department in Munson v. Fanning, highlights the need for difficult discussions and prioritization before taking life-altering steps. It is also another call for the expanded use of the Collaborative Law Process.

In this case, the parties’ 12-year old daughter had been born after her parents had separated and divorced. The mother sought and permission to move with the child to California to join her new husband who had taken a new job. Saratoga Family Court Judge Courtenay W. Hall denied that relief, but revised the father’s visitation schedule to allow the mother to join her husband for extended periods during school recesses.

The appellate court reviewed whether the mother met her burden of proving by a preponderance of the credible evidence that the relocation was in the child’s best interests. Quoting the 1996 landmark decision of the Court of Appeals in Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, the court stated:

The factors to be considered in making such a determination include “each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.”

The court recognized the healthy relationship the daughter developed the mother’s new husband, as well as her other children, all of whom were to reside in California. The step-father’s new job in California would allow her to stay at home and raise her children. The attorney for the daughter (formerly called the Law Guardian) supported the relocation.

Continue Reading Relocation to California Denied Mother with 12-year Old Daughter

mediation.jpgCommencing March 14, 2011, parties to a Nassau County divorce action may be required to participate in a mediation session under a program initiated by Justice Robert A. Ross, Supervising Judge of the Matrimonial Parts. After a preliminary conference, the judge assigned to the case will decide whether the case is suitable for mediation. The parties will be allowed to mediate some issues and litigate others.

The introductory session will be free, using one of the more than 40 mediators who have been enlisted to participate in the “Matrimonial Alternative Dispute Resolution Program.” If the parties decide to continue, they will pay for further sessions.

The NYS Unified Court System has been committed to promoting the appropriate use of mediation and other forms of alternative dispute resolution (ADR) as a means of resolving disputes and conflicts peacefully. However, one may question whether mandated matrimonial mediation will be effective.

In mediation, a neutral person helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the case, but helps the parties communicate so they can try to settle the dispute themselves.

Mediation may be inappropriate if a party has a significant advantage in power or control over the other. Moreover, it may be said that any one of at least five people may prevent a piece of divorce litigation from being settled early. Of course, the expectations, needs or emotions of either of the parties (or, indeed, the children) may interfere with a reasonable exchange of ideas. Early reasonable compromise may also be inconsistent with the goals or style of one of the litigating attorneys. The judge, him/herself (or the history or prior rulings in the case) may have placed obstacles to settlement which need to be overcome. Finally, the friends or family of the parties, based on their own need for vengeance or their “knowledge” of the law, may spur the parties toward battle.

Mediation lacks some of the substantive tools of other forms of ADR. For example, Nassau County has made use of Early Neutral Evaluation panels. ENE was designed to provide parties with an early and frank evaluation of the merits of a case by an objective observer. It can provide a “reality check” for clients and lawyers, identifying and clarifying the central issues in dispute, assisting with discovery and motion planning or with an informal exchange of key information, and, if possible, facilitating settlement discussions, when requested by the parties. In practice, however, the ENE process was used late in the litigation, often when the case had already been certified ready for trial.

With arbitration, the neutral person hears arguments and evidence from each side and then decides the outcome. Arbitration is less formal than a trial and the rules of evidence are often relaxed. In binding arbitration, parties agree to accept the arbitrator’s decision as final, and there is generally no right to appeal. In non-binding arbitration, the parties may request a trial if they do not accept the arbitrator’s decision.

Much newer to New York, Collaborative Law is a process practically, financially and emotionally committed to a negotiated settlement without litigation. In Collaborative Law, each party is represented by a specially-trained lawyer. The parties sit together with their lawyers in face-to-face meetings identifying and resolving the issues. With the “interdisciplinary model,” a mental health professional is used to identify emotional issues which may be blocking the process. A commitment to financial “transparency” and the use of neutral financial specialists can greatly accelerate the exchange of information and keep matters private. If either spouse decides to go to court to litigate, both parties must hire new lawyers and other retained professionals. This motivates everyone involved to continue working toward a mutually agreeable resolution.

It is regrettable that mediation is now being mandated in large measure because the resources of the judicial system cannot properly handle the case load (1100 to 1200 cases in Nassau County annually). Moreover, mediation remains the form of ADR with the least teeth. Thus, it will only become a powerful tool if a speedy judicial resolution is the alternative.

One program to recognize this is the Martin P. Violante Alternative Dispute Resolution (“ADR”) Program for the Eighth Judicial District (Western New York). Section 6.2 of their Protocols (pdf) provides that referrasl to ADR in contested matrimonial and Family Court cases will not stay the Court proceeding. OCA policy in family cases recognizes the special need for prompt action. As a general rule, full discovery, emergency and pendente lite relief, family dynamics, and the needs of children require ongoing access to the Court. However, if the parties agree that additional time is required to fully explore resolution through ADR, they may request an adjournment of a court date from the Assigned Judge, which may be granted sparingly.

The concept that ADR is needed because the judicial system doesn’t work is offensive. However, each of the ADR forums does have a lot to offer. I fear mandating a single mediation session, though, will be of questionable value.