A January 9, 2019 decision of the Appellate Division, Second Department, may foreshadow an increase in support enforcement proceedings in Family Court, or promote the current payment of child support obligations, or both.

In Mensch v. Mensch, the court reversed an order of Suffolk County Family Court Judge Kathy G. Bergmann that denied a mother’s objections to the denial of a counsel fee award by Support Magistrate Barbara Lynaugh.

The parties were the parents of five children. In December 2017, the mother filed a child support enforcement petition alleging that the father failed to pay $1,635 in child support from April through August, 2017. The support obligation was based on a so-ordered stipulation of settlement that survived the parties’ Judgment of Divorce.

Shortly after the petition was filed, the father paid the mother the amount sought in the petition. The mother thereafter moved for an award of the attorneys’ fees she incurred in commencing this enforcement proceeding.

Magistrate Lynaugh denied her motion. The mother filed objections that were denied by Judge Bergmann.

Reversing, the Second Department held that the denial of an award of attorneys’ fees to the mother was an improvident exercise of discretion. The father paid the arrears demanded, but only after the mother was forced to expend attorneys’ fees to commence an enforcement proceeding.

The court rejected the father’s argument that he was engaged in a dispute over whether he should be credited for payments for cell phone expenses and college expenses paid before the entry of the parties’ judgment of divorce. However, that dispute did not authorize the father to engage in self-help by withholding child support payments that he ultimately did not dispute were due and owing.

Accordingly, the mother was entitled to an award of attorneys’ fees and the matter was remitted to the Family Court to determine the amount of the mother’s reasonable attorneys’ fees incurred in connection with this proceeding.

Michael J. Miller, of Heilig, Branigan, Miller & Castrovinci, of Holbrook, represented the mother. Karen D. McGuire, of McGuire Condon, P.C., of Huntington, represented the father.

Here’s a reminder. Look over the “boilerplate” counsel-fees-on-default provision of your settlement agreements; and re-read them when resolving enforcement proceedings.

Take a lesson from the July 25, 2018 decision of the Appellate Division, Second Department, in Posner v. Posner. There, The parties’ 2010 judgment of divorce incorporated, but did not merge, their stipulation of settlement. That stipulation provided that where one of the parties commences litigation to enforce it, and that litigation does not “result in a judgment or order in favor of the party” who commenced the litigation, that party shall reimburse the other party for any and all expenses, including attorney’s fees.

In 2011, the husband commenced litigation in the Family Court to enforce certain stipulation provisions. Thereafter, the wife filed a contempt motion under a separate docket number. After eight days of trial over nine months, the parties agreed to withdraw their respective petitions with prejudice. The parties nevertheless “reserve[d] all other rights provided for” in the 2010 stipulation of settlement.

In January 2014, the wife filed a motion in the Supreme Court seeking an award of attorney’s fees pursuant to the parties’ 2010 stipulation of settlement for the 2011 Family Court litigation. Westchester County Supreme Court Justice Francis A. Nicolai granted the wife’s motion to the extent of finding that the wife was entitled to an award of attorney’s fees and set the matter down for a hearing as to the appropriate amount. In a judgment entered September 27, 2016, after a hearing, Justice Janet C. Malone awarded the wife a judgment for attorney’s fees in the sum of $224,287. The husband appealed.

Continue Reading Counsel Fees Per Divorce Settlement For Withdrawn Enforcement Proceedings

The prospective husband’s attorney who drafted a couple’s prenuptial agreement was not disqualified from representing the husband in the couple’s divorce action, nor in the action to set aside the prenuptial agreement that had been joined for trial. So held the Appellate Division, Second Department, in its August 15, 2018 decision in Lombardi v. Lombardi. Moreover, it was held that an interim award of counsel fees to the wife was improper.

In 2004 the parties entered into a prenuptial agreement setting forth their rights and obligations in the event of a divorce. The wife commenced this action for a divorce in 2011.

Approximately one year later, the wife commenced a separate action to set aside the prenuptial agreement on the grounds of duress, coercion, undue influence, and unconscionability, and to recover damages for legal malpractice against the husband’s attorney, Dorothy Courten, who had drafted the prenuptial agreement on the husband’s behalf.

On a prior motion, Supreme Court, Suffolk County, Justice Hector D. LaSalle granted the husband’s motion to dismiss the complaint in the second action. On appeal, the Second Department modified that order by denying those branches of the motion which were to dismiss the causes of action alleging fraudulent inducement against the husband and seeking to set aside or rescind the prenuptial agreement on the basis of duress, coercion, undue influence, and unconscionability (see, Lombardi v. Lombardi, 127 A.D.3d 1038, 7 N.Y.S.3d 447 [2015]). However, the award of summary judgment dismissing the complaint insofar as asserted against Ms. Courten was affirmed.

Thereafter, the wife moved to consolidate this divorce action with the second action, to disqualify Ms. Courten and her law firm from representing the husband, and for an award of interim counsel fees. Justice James F. Quinn joined the two actions for trial, disqualified Ms. Courten and her law firm from representing the husband, and awarded the wife $10,000 interim counsel fees.

Continue Reading Attorney-Draftsman of Prenuptial Agreement Not Disqualified; No Interim Counsel Fee

In its July 25, 2018 decision in Crago v. Diegel, the Appellate Division, Second Department, affirmed a counsel fee award to a wife, the monied spouse in this divorce action. Supreme Court Kings County Justice Esther M. Morganstern had awarded the wife 55% of her total counsel fees. Upholding the award, the Second Department noted:

In its determination of a counsel fee application, the trial court must consider the relative financial circumstances of the parties, the relative merit of their positions, and the tactics of a party in unnecessarily prolonging the litigation. Although the defendant correctly contends that he is the less monied spouse, the Supreme Court’s award to the plaintiff of 55% of her total counsel fees, upon its determination that the defendant’s obstructionist conduct unnecessarily prolonged the pretrial motion practice and the trial, was not an improvident exercise of discretion.

The Second Department cited Meara v. Meara, 104 A.D.3D 916, 960 N.Y.S.2d 911 (2013) in which the financial circumstances of the parties was not discussed, and Quinn v. Quinn, 73 A.D.3d 887, 899 N.Y.S.2d 859 (2010), in which the parties were described as being on equal footing.

However, a counsel fee award to the monied spouse is contrary the rule in the First Department as announced in Silverman v. Silverman, 304 A.D.2d 41, 47-49, 756 N.Y.S.2d 14, 19-21 (1st Dept. 2003). Below, Supreme Court New York County Justice Marilyn Diamond had awarded the husband $50,000 in attorney’s fees, out of a total of over $ 200,000 incurred, based upon the dilatory conduct of the wife and her then counsel. Eliminating the award, the First Department held:

This award of attorney’s fees was not proper under Domestic Relations Law §237, because awarding attorney’s fees to the monied spouse does not comport with the purpose and policies of that section of the Domestic Relations Law.

Continue Reading Awarding Counsel Fees to the Monied Spouse: Conflict in the Departments

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

In its December 14, 2016 decision in Piza v. Baez-Piza, the Appellate Division, Second Department, stated that a father was required to prove a change of circumstances before modifying a prior award of temporary custody. The court also held that where a wife’s attorney did not comply with billing rules, a trial court could not award the wife counsel fees in excess of the retainer amount initially paid by the wife to her attorney.

The parties were married in 1996 and later separated. The husband commenced this action for a divorce in 2010. They have a son, who is now 17 years old.

The parties cross-appealed from their judgment of divorce entered in the Supreme Court, Suffolk County (Marlene L. Budd, J.), that was entered upon a decision after trial of Justice Stephen M. Behar. That decision:

  • awarded the plaintiff custody of the parties’ child;
  • directed the defendant to pay child support in the sum of $293.20 per month;
  • awarded the mother $150 per week for the period of April 26, 2010, through July 11, 2016; and
  • awarded the wife an additional $7,500 in attorney’s fees for legal services provided following an earlier award of $3,500 in attorney’s fees.

Continue Reading The Burden At Trial to Change Temporary Custody Award; Counsel Fees Where Rules Not Followed

The wife’s failure to send notice of default as required by the parties’ divorce judgment resulted in no award of counsel fees on her enforcement application. So held the Appellate Division, Second Department, in its August, 2015 decision in Taormina v. Taorminareversing the wife’s $7,781.25 counsel fee award by Westchester Supreme Court Acting Justice Janet C. Malone.

The wife had sought an award of a counsel fee pursuant to the parties’ judgment of divorce in connection with the husband’s alleged defaults as to certain obligations set forth in that judgment. The judgment, however, required the nondefaulting party to give notice of alleged defaults by certified mail. It was undisputed that the wife did not give such notice. Accordingly, the wife was not entitled to an award of a counsel fee pursuant to the terms of the judgment.

Moreover, as the record did not reflect that the husband’s defaults were “willful” within the meaning of Domestic Relations Law §237(c), that statute did not provide a proper alternative basis for the award of a counsel fee to the wife. Therefore, Justice Malone erred in awarding the wife a counsel fee.

Rocco V. Salerno, Jr., of Eastchester, represented the husband. Helene M. Selznick, of Somers, represented the wife.

Particularly in the Second Department, the last few years have brought a host of cases threatening the enforceability of prenuptial agreements. To review a few just type “prenup” in the keyword search at right. It’s going to get worse.

New York’s Domestic Relations Law §236(B)(3) provides that prenuptial and other marital agreements executed with proper formalities are valid and may include

(1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will;

(2) provision for the ownership, division or distribution of separate and marital property;

(3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment;

and (4) provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this article.

The December 24, 2014 decision of the First Department in Anonymous v. Anonymous, is a case in point.

In this matrimonial action the wife had sought, among other things, to set aside the parties’ prenuptial agreement.Ruling on several motions, Supreme Court, New York County Justice Ellen Gesmer upheld the validity generally of the the prenuptial agreement, but held the issue of the current unconscionability of the spousal support provision would be resolved at trial.

Continue Reading Litigating Prenuptial Agreements Is Going To Get Messier

The third of four decisions this month with an international context was decided by New York County Supreme Court Justice Manuel J. Mendez.

In Bond v Lichtenstein (pdf), decided July 15, 2014, Justice Mendez granted a mother summary judgment in lieu of complaint under C.P.L.R. §3213 domesticating a $570,110.05 Hong Kong judgment for child support arrears.

The parties lived together for approximately one year beginning in April of 2006. The mother is a citizen of the United Kingdom and the father is a citizen of the United States. Not long after the mother found out she was pregnant, the relationship fell apart, and by April of 2007, the parties had separated.

On August 31, 2007, their female child was born in England. The mother currently resides with the daughter in Hong Kong and with another man.

On November 21, 2008, the mother commenced child support and paternity proceedings in England. There was a trial and resulting December 3, 2010 Support Order from the High Court of England.

The parties then entered into a consent summons for the purpose of obtaining a “mirror order” in Hong Kong reflecting the support obligations obtained by the mother in England and vacating the English Order. In November of 2012, the father submitted to jurisdiction in Hong Kong for obtaining the “mirror order” and resolving other related issues.

In May of 2013, the proceeding brought before the High Court of Hong Kong resulted in a four-day trial concerning child support. The father appeared for the trial by video. He submitted evidence and was represented by attorneys. On June 28, 2013, the High Court of Hong Kong, by Deputy High Court Judge, Bebe Pui Ying Chu, rendered an 87-page Opinion.

Continue Reading Melting Pot (Part 3 of 4): Domesticating the Foreign Child Support Judgment

Not according to Richmond County Civil Court Judge (and Acting Suprme Court Justice) Philip S. Straniere, seemingly running afoul of a contrary body of case law, particularly in the Second Department.

Small Claims Court proceedings may well be the only practical way to redress relatively modest, but often important breaches of divorce settlement agreements as to matters of support and property. Such proceedings are quick, inexpensive, can be pursued without lawyers, and do substantial justice. Eliminating Small Claims Court as a proper forum for such relief would often leave parties without a reasonable remedy.

In his February 19, 2014 decision in Pivarnick v. Pivarnick, Judge Strainiere, held that Small Claims Court was without subject matter jurisdiction to enforce a divorce settlement agreement.

Doing so, he vacated an arbitrator’s $4,000 award to an ex-wife for counsel fees she incurred in connection with her submission to the Supreme Court of a proposed Qualified Domestic Relations Order to implement a division of the ex-husband’s pension and her defense of the ex-husband’s motion to dismiss that proposed QDRO. The ex-wife had cross-moved for sanctions “in the form of ‘attorneys’ fees for his engagement in frivolous conduct.’” Those post-divorce Supreme Court submissions were resolved by a so-ordered stipulation under which the entitlement of the ex-wife to share in the ex-husband’s pension was restated. No reference in the stipulation was made to the wife’s “attorneys’ fee claim” by cross-motion.

Thereafter, the ex-wife sought her counsel fees in Small Claims Court. The arbitrator had awarded the claimant legal fees in the amount of $4,000.00 and dismissed the defendant’s counterclaim for his own counsel fees.

Continue Reading Does Small Claims Court Have Jurisdiction to Resolve Divorce Settlement Agreement Disputes?