Obstreperous may be defined as stubbornly resistant to control. In divorce litigation, sometimes it just doesn’t pay to be difficult.
In its decision of March 22, 2022, the Appellate Division, First Department in Gorman v. Gorman, upheld the lower court’s determination that the wife waived her interest in the shopping center by her refusal to sign an assignment agreement as required.
incident to the divorce, the wife was to have received half of the marital interest in RS Shopping Center Associates LLP. The judgment of divorce provided that the wife was to sign an assignment agreement to equally divide the marital interest. However, the wife refused to agree to the terms of that assignment agreement.
By Order entered May 27, 2021, New York County Supreme Court Justice Michael L. Katz determined that the wife would forfeit her interest in the shopping center unless she executed the assignment agreement as previously directed within five days of notice of entry. By Order entered August 3, 2021, Justice Katz denied the wife’s motion seeking a declaration that she complied with that prior order. Instead, Justice Katz granted the husband’s cross-motion finding that the wife waived her interest in shopping center by her refusal to sign the assignment as required by the court’s prior order.
Jason Advocate, counsel for the husband, reports that the wife had objected to the partnership’s requirement that the wife provide a general release of claims as a condition to the assignment. After the first motion was filed by the husband, the wife signed the assignment. However, when returning it to the partnership’s counsel, she wrote that she had signed under duress. She refused to re-sign it.
Award of Counsel fees vacated:
The First Department also held that it was a proper exercise of Justice Katz’s discretion to deny a counsel fee award to the wife who was acting pro se, “given the equities and circumstances of this case, including the relative merits of the parties’ positions” and given the provisions of Domestic Relations Law §237(a). However, the appellate court vacated the lower court’s award of counsel fees to the husband. There was no written decision below setting forth the conduct of the wife on which it would be proper to impose and award of attorneys’ fees as a sanction. An award of counsel fees cannot be imposed only to punish a party for litigation conduct.