Keep a secret

The failure of a spouse to disclose a material change in facts that occurred during settlement negotiations may result in an invalidation of the related settlement provisions.

So held the he Appellate Division, Third Department in its May 11, 2017 decision in Flikweert v. Berger, invalidating one paragraph of a divorce settlement separation agreement and remanding the matter to address the appropriate equitable distribution of the funds in issue.

The parties were married in 1997 and had one child. In June 2014, the wife commenced this action for a divorce. After extensive negotiations, the parties executed a separation agreement on September 15, 2015 that addressed issues including equitable distribution, child support, custody and spousal maintenance.

Paragraph 21 of the separation agreement concerned the wife’s ownership interest in her employer, a privately held company. The wife began employment with the company in February 2012. In August 2013, the wife was awarded unvested equity incentive units by the employer. By September 2015, half of the units were vested.

Continue Reading Keeping Secrets During Divorce Action Partially Invalidates Settlement

Collection of popular social media logosWith the increasing use of social media evidence, what may a lawyer do to gather the evidence (or to prevent it from being gathered)? More and more, social media is finding its way into court cases. Family law matters may be leading the way.

A 2013 Third Department decision affirmed the imposition of an order of protection against a mother prohibiting her from posting any communications to or about the children on any social network site (prior blog post). Several decisions have made use of material posted on Facebook (see, e.g., Terzani [2014]; Elissa N. [2013]; B.M. [2011]). A 2015 case authorized Facebook as a method of court-approved substituted service of a divorce summons. A 2014 Family Court case authorized such service of a child support petition (prior blog post).

Continue Reading May Your Spouse’s Attorney Ethically Access Your Facebook Page?

A party in a divorce action who seeks to compel a journalist to turn over information or documents must meet an extraordinary burden.

So held New York County Supreme Court Justice Donna M. Mills in an August 21, 2014 decision Matter of Hamm (Zuckerman).

Petitioner, Sue Ann Hamm, and her husband, Harold Hamm, are parties to an Oklahoma divorce action. By this application, Ms. Hamm sought to enforce a subpoena issued to New-York based journalist Gregory Zuckerman of the Wall Street Journal, author of the book, The Frackers: The Outrageous Inside Story of the New Billionare Wildcatters, in which Mr. Hamm is featured. Mr. Zuckerman cross-moved to quash the subpoena and for a protective order preventing Ms. Hamm from deposing him and obtaining the materials demanded.

According to Wikipedia, in 2012 Hamm was ranked by Forbes magazine as the 30th richest person in America and 76th richest person in the world, with a net worth estimated at $11 billion, a figure increased to $17 billion in early 2014. In 2012, presidential candidate Mitt Romney named Hamm as his energy advisor, and thereafter Hamm made substantial monetary and advisory contributions to the election effort.

Here, Ms. Hamm sought documents and testimony from Zuckerman about topics in the book, arguing that Mr. Zuckerman had unique insight and knowledge concerning a pivotal issue in the divorce case of whether or not Mr. Hamm’s efforts, skills or expended funds contributed to the value of the marital estate. Ms. Hamm provided the Court with excerpts from the book which indicated that it was based on interviews with numerous witnesses, including her husband, who had personal knowledge of material facts about those contributions.

Continue Reading Journalist Privilege Precludes Divorce Action Discovery From Author

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

Scheinkman photo 2.jpgFrom the “You Can’t Make This Stuff Up” Department:

During the course of this Westchester County divorce action, Elizabeth Perry “engaged in inappropriate litigation behavior.” She refused to comply with court orders to produce documents or to submit to an examination before trial, she secreted assets (including millions of dollars of cash assets), and she apparently illicitly acquired documents and computer files belonging to her husband, Jeffrey.

The July 17, 2012 decision of Supreme Court Justice Alan D. Scheinkman (pictured) in Perry v. Perry, resolved a motion prompted by the wife’s alleged transmission to the husband of an unsigned, haphazardly redacted and truncated letter from an undisclosed attorney writing to “confirm” an understanding with the wife and which recommended the filing of a civil RICO action against the husband in the United States District Court.  The document suggested that the litigation would be based on the husband’s failure to fully disclose his income and assets on his Statement of Net Worth.

Mr. Perry alleged that at the outset of the case, his wife’s first of 11 attorneys in this 19-month pending action made similar allegations. Although the husband attested to having provided tens of thousands of pages of documents, the wife refused to provide any.

It was also alleged that the wife had intercepted some nine boxes of files intended for the husband and hid them. Ms. Perry apparently orchestrated the hacking of her husband’s computer, including privileged matter. Mr. Perry alleged that in order to circumvent a restraint imposed by the Court, his wife put the housekeeper in a disguise and directed her to take a taxi to a storage unit in order to remove a suitcase full of jewelry. It was also claimed that Ms. Perry emptied a money market account of $5 million and removed valuable furniture, artwork and mirrors from the marital residence. Further, recent bank information indicated that of the approximately $11.5 million held in a particular Chase account of the wife in April 2012, there is only just over $1 million left.

On non-financial matters, the wife attempted to involve the police and commenced a now-dismissed family offense proceeding when her husband technically violated a driveway-pickup order when he entered the former marital residence in Scarsdale in order to convince his daughter to go with him on a planned vacation trip to Australia. As it happened, his wife’s absence from the home was also likely a violation of that portion of the order that required her to be inside the residence. While Ms. Perry’s effort to involve the police was not wholly successful (she did get Homeland Security officials to detain Mr. Perry and the children briefly upon return to this country), she obtained an ex parte Family Court temporary order of protection, which she used to derail the husband’s access to the children for a time.

Mr Perry also believed it was his wife, after Justice Scheinkman previously directed that Mr. Perry have custody of the children, who anonymously complained to Child Protective Services that the children were being held against their will at Mr. Perry’s residence. This claim was investigated and found to be unfounded.

Continue Reading Divorce Court Will Not Enjoin Wife From Commencing Federal RICO Action Against Husband

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If a spouse wilfully fails to provide financial information during the discovery phase of a divorce action, one remedy may be an order of preclusion under C.P.L.R. §3126.  Thus, an August, 2010 decision of the Appellate Division, Second Department, in Raville v. Elnomany, affirmed the preclusion of the husband “from offering financial evidence at the hearing on equitable distribution based on his willful failure to comply with discovery.” 76 A.D.3d 520, 906 N.Y.S.2d 586.

But what, precisely, is an order of preclusion from offering evidence?  Is it really what you want?  Is it everything you need?  A brief review of some decisions granting “orders of preclusion” may highlight the open issues even after preclusion is granted.

  • For example, is precluding the husband from offering evidence the same as precluding “testimony?” Casey v. Casey, 39 A.D.3d 579, 835 N.Y.S.2d 277 (2nd Dept. 2007).
  • Is preclusion the same as eliminating the right to cross-examine? Grande v. Grande, 129 A.D.2d 612, 514 N.Y.S.2d 250 (2nd Dept. 1987); cf., Settembrini v. Settembrini, 270 A.D.2d 408, 704 N.Y.S.2d 641 (2nd Dept. 2000).
  • If the husband is allowed to cross-examine, may cross-examination be curtailed if the subject matter involves the very information which the husband failed to produce? Cohen v. Cohen, 228 A.D.2d 961, 644 N.Y.S.2d 831 (3rd Dept. 1996).
  • Does it require that there be an “inference” in favor of the non-offending party? Dolny v. Dolny, 32 A.D.3d 818, 820 N.Y.S.2d 520 (2nd Dept. 2006).
  • Does preclusion from offering evidence necessarily require that financial issues of fact be deemed resolved in favor of the non-offending party? Pearl v. Pearl, 266 A.D.2d 366, 698 N.Y.S.2d 160 (2nd Dept. 1999).
  • Is it the same as permitting the wife “to proceed at trial solely upon her proof of the financial matters.” Is the wife entitled to “a default equitable distribution?” Reed v. Reed, 93 A.D.2d 105, 462 N.Y.S.2d 73 (3rd Dept. 1983).

“Preclusion” can be a very imprecise remedy. Counsel should be careful to request, and the Court should be careful to detail the metes and bounds of the remedy. However, for counsel, a detailed request may be unavailable until there is a clear understanding of the fact issues to be determined and the available proof. This may require delaying the motion; or seeking leave to obtain additional or different relief once more is known.

Man stealing data from a laptop iStock_000013972877XSmall.jpgIn her June 25, 2010 Shreiber (PDF) decision, Brooklyn Supreme Court Justice Delores Thomas denied a wife’s second motion for the wholesale inspection of her husband’s (previously-secured) computer hard disk drive. A prior motion had been denied as premature and because the activities of the appraiser court-appointed to evaluate the husband’s solo law practice might have rendered such application moot.

However, and despite allegations of fraudulent activities by the wife, the neutral appraiser apparently accepted at face value the husband’s business records, tax returns and statements. The wife had alleged that the husband’s claimed assets at $1.2 million and liabilities of $6.1 million omitted brokerage accounts held in multiple escrow accounts and by non-profit nominees.

Noting the court’s duty to oversee the parties’ full disclosure, Justice Thomas attempted to balance what may be “crucial” electronic discovery with the undue prejudice and delay caused by open-ended discovery.

The court refused to grant unrestricted access. However, granting the wife leave to renew her request, the court mandated the wife submit a “detailed, step-by-step protocol” to protect privileged and private material including provisions for:

  • the appointment of an attorney-referee with computer expertise;
  • the appointment of a forensic computer expert;
  • a confidentiality agreement;
  • examination of the computer for evidence of drive-wiping;
  • a listing of detailed key word searches to be run on discovered files and fragments (e.g., asking for all spreadsheet files would not be acceptable);
  • a review of identified files by the husband’s counsel and creation of a privilege log;
  • preservation of the clone; and
  • payment of costs by the wife.

Justice Thomas is to be congratulated for advancing the adoption of uniform procedures to protect the interests of both spouses. Now Appellate Division Justice Leonard Austin provided similar insights in Lipco v. ASG Consulting (PDF). However, electronic discovery is now needed too often for this to be left to repeated motion practice, case by case, jurisdiction by jurisdiction.

Preservation of computer data should be a part of the “automatic orders” incident to the commencement of every divorce. Every Preliminary Conference should address this issue and the appointment of referees and/or forensic experts considered if appropriate and especially with allegations of fraudulent or “cash” financial activities. A uniform protocol should be established by a panel of lawyers, accountants, computer experts, and judges, easily tailored to the needs of a particular case.

Finally, one cannot help but note that the August 13, 2010 amendment to D.R.L. §237 would appear to eliminate the restraints against “fishing expeditions” resulting from making, as here, the wife pay for the examination of the husband’s computer. With the monied-spouse compelled to pay-as-you-go for litigation fees, what less-monied spouse could resist going through all those computer files.