Enjoy the Slammer, Mel - Part II

Looks like tomorrow will be the big day that Mel will have to face the music. Last week, Mel's lawyers lashed out at the WSJ, claiming that the paper "belittled Mr. Weiss’s supporters," and failed to emphasize that "Mr. Weiss’s efforts improved access to justice for the poor." GIVE ME A BREAK! I am sure John Stossel could do a whole show negating the veracity of such a ridiculous assertion.

Aside from the broader issue of Mel pleading guilty to his involvement in an elaborate corrupt kickback scheme, I can only now reflect upon what a "mentor" Mel has been to the legions of debt-ridden law graduates that have been pumped out by toilet law schools every year. Despite earning millions off his poor victims, I fondly recall how Mel would hire Sleazy Temp Agency LLC to trick fresh faced recent grads into coming to work for him at a low rate with no benefits. Too bad Sleazy Agency LLC didn't disclose the fact that after having worked for Mel, you would soon find yourself blacklisted by every major American defense firm. Mel's firm also required temp staff to march around the office with giant "TEMP" ID's around their necks; ID's were bright yellow with giant "TEMP" letters written on them.

Clear and Unambiguous French PreNuptual Agreement Upheld to Deny Wife Equitable Distribution

Clear and Unambiguous French PreNuptual Agreement Upheld to Deny Wife Equitable Distribution


In Van Kipnis v Van Kipnis, --- N.Y.S.2d ----, 2007 WL 2003419 (N.Y.A.D. 1 Dept.), the Plaintiff wife and defendant husband were married in Paris, France, in 1965. Prior to the ceremony, and at the request of the wife, the parties agreed to execute a "Contrat de Mariage" (Contract), which is a form of prenuptial agreement under the French Civil Code. The expressly stated purpose of the Contract was to opt out of the "community property regime," which is the custom in France, in favor of a "separation of estates" property regime. The first article of the Contract, which is titled "MARITAL PROPERTY SYSTEM," provided: "The future spouses declare that they are adopting the marital property system of separation of estates, as established by the French Civil Code. Consequently, each spouse shall retain ownership and possession of the chattels and real property that he/she may own at this time or may come to own subsequently by any means whatsoever. They shall not be liable for each other's debts established before or during the marriage or encumbering the inheritances and gifts that they receive. The wife shall have all the rights and powers over her assets accorded by law to women married under the separate-estates system without any restriction." Shortly after the marriage the parties moved to New York, where they resided throughout their 38-year marriage. The husband acquired liquid assets of approximately $7 million and the wife of approximately $700,000-$800,000 The parties kept their assets completely separate throughout the course of their marriage. However, the parties jointly owned a country home in Lenox, Massachusetts, valued at $625,000, and a cooperative apartment at 860 Fifth Avenue, in Manhattan valued at $1.8 million. At the hearing, the wife testified that the Contract was executed for the sole purpose of opting out of the community property system of France, and instead adopting a complete separation of estates, whereby each party could not be held liable for the other's debts. She also admitted, however, that the husband executed the Contract at her insistence, that he had no money at the time of the marriage and that she had never moved to set the Contract aside during the marriage. The husband offered a similar understanding of the Contract. Expert testimony established that article 1536 of the French Civil Code provides different choices of matrimonial regimes; that by signing the Contract the parties opted out of France's community property regime and chose a regime of separate property; that the legal effect of this selection was that each
spouse retained the unfettered right to administer, enjoy and freely dispose of his or her separate property throughout the marriage and continuing through its dissolution; and that divorce is never mentioned in a marriage contract. The Referee upheld the Contract., finding that "it is clear that these parties entered into a prenuptial agreement ... which governed the economics of their 38 year marriage, and is likewise applicable in the circumstances of their divorce." Thus, the Referee determined that the parties were to retain ownership of the assets held in their respective names. With respect to the jointly held properties, the Referee recommended that wife be awarded the co-op apartment and reimbursed $75,000 for repairs and furnishings therein, and that the husband be awarded the Massachusetts country home. The Referee also ruled that the Contract did not constitute a waiver by the wife of the right to receive maintenance. In determining the amount and duration of maintenance, the Referee considered, inter alia, the marital standard of living, which it described as "relatively modest," in arriving at a sum of $7,500 per month, payable until either the husband or wife dies or the wife remarries. In
addition, after subtracting the amount of fees allegedly attributable to the wife's challenge to the Contract, which it found were not compensable, the Referee awarded the wife an additional $92,779 in attorneys' fees. On appeal, the wife argued that the enforceability of the Contract was irrelevant since, even if enforceable, it was not applicable to this divorce proceeding, since the intent was to shield each spouse's assets from the other's creditors during the marriage, and not to govern the distribution of property upon divorce. She noted that although the Contract specifically provides that each spouse "shall not be liable for each other's debts established before or during the marriage," it makes no mention of the disposition or distribution of property in the event of divorce, and contains no express waiver of property rights if the parties decided to divorce. She also noted that both parties testified that neither of them understood the Contract as having any relevance to divorce. The First Department held that because the Contract unambiguously provides for separate ownership of property and extrinsic evidence should not have been considered to create an ambiguity or vary its terms, it would affirm that portion of the order which found the contract to be enforceable and applicable. It rejected the wife's argument that the Contract should not be enforced
because it is not "an agreement for the disposition of ... property" within the meaning of Domestic Relations Law [DRL] 236(B)(5). Although the wife was correct that the Contract was not an agreement for the disposition of property, DRL
236(B)(3) authorizes enforcement of agreements that include "(2) provision for the ownership, division or distribution of separate and marital property" (emphasis added). Moreover, DRL 236(B)(1)(d)(4) defines "separate property" as including
"property described as separate property by written agreement of the parties." Thus, the DRL specifically authorizes agreements to treat what might otherwise be marital property as separate property for purposes of equitable distribution. This
is precisely what occurred in this case, where the Contract described each spouse's property held at the time of marriage or acquired thereafter as separate property. The court's award of $7,500 per month in maintenance, which would result in an approximate annual pre-tax incomes of $126,000 for the wife and $335,000 for the husband, was a proper exercise of discretion as was the $92,779.57 in attorneys' fees to the wife. Although the wife requested an additional $177,000 in fees (the husband had already paid $160,000), the Referee correctly ruled that under DRL 237 the wife was not entitled to fees incurred in challenging the enforceability of a prenuptial agreement. Moreover, because the legal bills submitted by the wife's attorney failed to clearly delineate those legal services that were unrelated to the wife's challenge to the agreement, and thus compensable under DRL 237, the court properly exercised its discretion in awarding the amount that it did.

Provisions in Settlement Agreement Which Govern Award of Attorney's Fees, Rather than Statutory Provisions, Control.

Provisions in Settlement Agreement Which Govern Award of Attorney's Fees, Rather than Statutory Provisions, Control.


In Berns v Halberstam, --- N.Y.S.2d ----, 2007 WL 4465050 (N.Y.A.D. 2 Dept.) the parties settlement agreement was incorporated but not merged into their judgment of divorce. The judgment of divorce stated that the father would have scheduled visitation with the parties' two daughters pursuant to the agreement. Article XXIV of the agreement provided that each party would pay his or her respective attorney for the rendition of services in connection with the agreement and the representation of him or her in "any lawsuit pending or to be commenced by and between the parties." Article XXVI set forth two specific circumstances where one party must pay for the other party's attorney's fees. The mother commenced proceedings for modification of the visitation provision, seeking to suspend the father's right to alternate weekend visitation. The parties settled these proceedings on the record, whereby the father's visitation rights were modified. The mother moved for an award of an attorney's fee, not pursuant to Article XXVI of the agreement, but rather pursuant to Family Court Act 651 and Domestic Relations Law 237(b). Family Court granted the mother's motion for fees related to legal work performed on two dates where the father caused unnecessary delay in the proceedings. The Appellate Division reversed. It held that where the parties have agreed to provisions in a settlement agreement which govern the award of attorney's fees, the agreement's provisions, rather than statutory provisions, control. Viewing Articles XXIV and XXVI in conjunction with each other, the agreement was clear and unambiguous. Article XXIV was a general waiver of attorney's fees, each party accepting responsibility to pay their respective counsel, and Article XXVI set forth two specific exceptions to the general waiver. The modification petition did not give rise to one of the two specific instances where an award of attorney's fees would be contractually required under Article XXVI. The modification petition was subject to the general waiver provisions of Article XXIV, which precluded an award of attorney's fees

Error to Award Joint Custody of Son From Previous Marriage. Equitable Estoppel Not Applicable

Error to Award Joint Custody of Son From Previous Marriage. Equitable Estoppel Not Applicable


In Gulbin v Moss- Gulbin, --- N.Y.S.2d ----, 2007 WL 4197590 (N.Y.A.D. 3 Dept.) the Appellate Division held that Supreme Court erred by awarding plaintiff joint custody of her son from a previous relationship. When the parties married, defendant was already the biological mother of two sons, one of whom was now emancipated. The parties were the biological parents of two more sons. Supreme Court, in reliance upon a long-standing parent/child relationship between plaintiff and defendant's second son, awarded joint custody to the parties with the children's principal residence being with defendant, subject to scheduled visitation rights for plaintiff. Notwithstanding a close and loving relationship, a nonbiological parent does not have standing to request custody or visitation when a biological parent is fit and opposes shared custody or visitation (see Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, 655-657 [1991]; Matter of Multari v.Sorrell, 287 A.D.2d 764 [2001]; Matter of Rose v. Walrad, 278 A.D.2d 537, 538 [2000]; Matter of Cindy P. v. Danny P., 206 A.D.2d 615, 616 [1994], lv denied 84 N.Y.2d 808 [1994] ). Despite these cases, plaintiff, in reliance upon Jean Maby H. v. Joseph H. (246 A.D.2d 282 [1998] ), asserted that defendant was equitably estopped from asserting that he lacked standing to seek custody of and visitation with her second son. The Third Department held that "The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted" (citing Matter of Shondel J. v. Mark D., 7 N.Y.3d 320, 326 [2006] ). Here, the doctrine was inapplicable. The record revealed that shortly after the parties married, and while this son was only three or four years of age, defendant informed him that plaintiff was not his biological father. Moreover, defendant refused to consent to his adoption by plaintiff precisely for the reason that it would impact on the issue of custody and visitation in the event of a divorce. Under these circumstances, it could not be concluded that defendant led plaintiff to form a reasonable belief that her claim to custody of her second son would not be asserted. Because defendant refused to stipulate as to the custody of this child and plaintiff admitted that defendant was a fit parent, Supreme Court erred in reaching this issue.

Interesting Mumbai Job Opportunity

"Document Review Superstar

International legal support company which performs document reviews and other back office legal work for large law firms seeks licensed attorney with a minimum of 2-3 years experience to act as in-house coordinating counsel. Position involves spending 2-3 months in India helping select and train experienced Indian lawyers who will be involved in doing document reviews and working on ongoing document reviews from India (emphasis added). Thereafter you will be return to NY or another major American city to supervise those projects remotely, with an office at our client law firm, interacting with lawyers at that law firm on their projects.

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Compensation includes competitive salary, health and life insurance, 15 days annual leave, as well as performance based consideration.
Please submit cover letter and resumes to: legal-jobs@hotmail.com

http://newyork.craigslist.org/mnh/lgl/699487208.html"

Wilful Violation of Support Order Can Be Established Without Testimony by a Formal Judicial Admission

Wilful Violation of Support Order Can Be Established Without Testimony by a Formal Judicial Admission




In Matter of Columbia County Support Collection Unit v Interdonato, --- N.Y.S.2d ----, 2008 WL 1969647 (N.Y.A.D. 3 Dept.) the Appellate Division rejected Respondents argument on appeal that Family Court erred in finding a willful violation of the support orders and ordering that he be committed based on unsworn testimony. It held that it is well settled that when there is no admission by a respondent, a determination of a willful violation of a support order must be predicated upon proof adduced at a hearing. A formal judicial admission by a respondent may, however, obviate the need for a hearing inasmuch as the respondent, by his or her admission, waives the production of evidence by the opposing party with regard to the facts admitted and the respondent's admission is deemed conclusive with regard to those facts. Here, respondent's unequivocal admission before the Support Magistrate in open court to the facts giving rise to petitioner's claim of respondent's violation of Family Court's orders, that he failed to make the required child support payments, was made with sufficient formality and conclusiveness to be deemed a formal judicial admission even in the absence of an oath. Furthermore, proof of a failure to make required support payments is prima facie evidence of a willful violation. Accordingly, Family Court's order was not based upon unsworn testimony, but was properly made following respondent's admission and, as such, it was affirmed.

The Skadden Sock Puppet

Tom,

This is the project at Skadden where half of the people are on hold and the rest (I haven't been called back yet) are working....it is a very bad feeling, as it creates ill will.

TUESDAY, 5/20

"As most of you know, you have been asked not to return tomorrow, Wednesday (May 21) given that they do not have enough data for tomorrow. That being said, they do not want to lose you and you should be back on Thursday morning or afternoon. I will give you a call tomorrow with this information. I appreciate your flexibility and truly apologize for this.

It is a pleasure to work with you and I know this is a huge inconvenience. I wish I could have control over it!!!

Please confirm that you received this."

THURSDAY, 5/22

"Hey! No word back from Skadden. The same thing stands. They want you back but they are just not ready for that. I truly apologize and I feel terrible for this. Believe me, I was a contract attorney myself. As soon as I have any news I'll let you know. If I do not call you tonight it means that you shouldn't go in tomorrow. I'll keep you posted though. You are still on the project, I know that is not that comforting, but this is all we have been told as of right now.

Hope to talk to you soon with better news. I should have an update later today. Worst case scenario, you'll have the weekend off, they will finally get their act together at that time and then it should all be ok after that. Best case scenario, they get back to me soon!!!"

Fool me once, shame on you. Fool me twice, shame on me. Will you be pawned once again by the Skadden sock puppet?

Court of Appeals Holds Agreement Can't Confer Jurisdiction on Family Court

Court of Appeals Holds Family Court Lacked Subject Matter Jurisdiction to Entertain Wife's Application for Increased Spousal Maintenance Despite "De Novo" Provision of Separation Agreement

In Matter of Johna M.S. v Russell E.S., --- N.Y.3d ----, 2008 WL 1860165 (N.Y.) Petitioner wife and respondent husband executed a written separation agreement in 2003. No divorce action was commenced. The agreement provided that the husband would pay the wife $100 per week in spousal maintenance and $250 per week in child support. The section of the agreement pertaining to maintenance stated: "while this agreement will resolve these issues for the present time, the Wife shall not be foreclosed from seeking additional maintenance in negotiation with the Husband, or failing such negotiation, then filing in a court of appropriate jurisdiction for a modification of the present provisions concerning the payment of maintenance. Any application by the Wife shall be treated as a 'de novo' application to the court, since it is not possible to set future maintenance at this time because it is impossible to forecast the Wife's needs or the Husband's income/earning capacity."
The wife commenced a Family Court Act article 4 proceeding seeking an upward modification of maintenance and child support. The Support Magistrate dismissed that portion of the wife's application seeking additional spousal maintenance for lack of jurisdiction. The court noted that no proof was offered that the wife was likely to become a public charge (see Family Court Act 463); thus, the parties were bound by the terms of the separation agreement on the issue of spousal maintenance. Family Court affirmed, as did the Appellate Division. The Court of Appeals affirmed. It held that Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute. It generally has no subject matter jurisdiction to reform, set aside or modify the terms of a valid separation agreement. Nor can an agreement of the parties confer on Family Court the power to modify the terms of a separation agreement. A statutory exception to the rule prohibiting the modification of separation agreements, not applicable here, exists where a spouse "is likely to become in need of public assistance or care" (Family Court Act 463). Family Court lacked subject matter jurisdiction to entertain the wife's application for increased spousal maintenance. Although the parties' separation agreement purported to permit Family Court to treat any application by the wife as "de novo," such language cannot confer jurisdiction upon Family Court. The wife's petition to Family Court for increased maintenance expressly stated that it was "an application to the Court for an upward modification of spousal support," premised on the insufficiency of current maintenance due to a loss of certain Social Security benefits. In practical terms, the wife was not presenting a new, or "de novo," application for maintenance to Family Court. She was seeking increased maintenance from that provided under the separation agreement. Thus, because the wife was seeking a modification of a spousal maintenance award set forth in a separation agreement, Family Court was without jurisdiction to entertain the petition and grant the requested relief. Justice Smith dissented in an opinion

2 Dept Holds Interim Counsel Fee Should Not Be Denied or Deferred Where Warrantred

Second Department Holds Counsel Fees to Nonmonied Spouse Generally Warranted Where a Significant Disparity in Parties Financial Circumstances and Should Not Be Denied, or Deferred Absent Good Cause, Articulated in a Written Decision
In Prichep v Prichep, --- N.Y.S.2d ----, 2008 WL 1987254 (N.Y.A.D. 2 Dept.) the Second Department, in an opinion by Justice Prudenti, held that because of the importance of such awards to the fundamental fairness of the proceedings, an award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties and should not be denied, or deferred until after the trial, which functions as a denial, without good cause, articulated by the court in a written decision. It cited as examples of good cause, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case. It based this conclusion on the fact that when an action for a divorce is commenced, it is often the case that most of the marital assets available for the payment of legal fees are possessed or controlled by one of the spouses, usually the husband. In order to ensure that the parties will have equal access to skilled legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the nonmonied spouse during the course of the litigation. The court pointed out that when a party to a divorce action requests an interim award of counsel fees, as opposed to a final award, a detailed inquiry is not warranted. The husband commenced the divorce action in 1998. In June 2005, the wife made a pretrial motion for interim counsel fees of $35,000. The wife's motion papers noted that, although the court previously had awarded her interim counsel fees of $20,000, she currently owed her attorneys $53,009. The wife pointed out that the husband was a "highly successful vascular surgeon," earning $420,100 per year, while she worked part-time as an early intervention therapist, earning $4,015 per year. In opposition to the wife's motion, the husband argued that the wife had "over-litigated" the case, creating and submitting voluminous and unnecessary papers, and thus generating excessive counsel fees. Supreme Court denied the wife's motion "without prejudice to renewal before the trial court to determine the financial circumstances of the parties, the nature and complexity of the case, which includes the valuation of a medical practice, the fees filed and legal services rendered and the expertise of the attorneys." The wife thereafter moved to renew her prior motion and for an additional award of interim counsel fees of $40,000. Her attorney submitted an affidavit asserting that the wife now owed his firm $159,000 in legal fees, as well as invoices and attorney time records documenting billings in that amount. In the alternative, the motion sought leave to withdraw as her counsel. Supreme Court denied the motion for fees but granted the law firm's request to the extent of relieving it as counsel for the wife. An award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse. Such an award "is appropriate 'to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation' "(citing Gober v. Gober, 282 A.D.2d 392, 393, quoting O'Shea v. O'Shea, 93 N.Y.2d at 193; see Charpie v. Charpie, 271 A.D.2d 169). If the playing field were not leveled by an award of interim counsel fees, "a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior matrimonial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis".

3d Dept Holds No Interim Counsel Fee witout a Hearing

Third Department Holds That Absent Stipulation No Pendente Lite Counsel Fee Award Without A Hearing
In Bush v Bush, 46 A.D.3d 1140, 848 N.Y.S.2d 721 (3d Dept, 2007) Defendant cross-moved for among other things, interim counsel fees in the amount of $85,172.81. Supreme Court awarded defendant interim counsel fees of $25,000. The Appellate Division reversed. It held that to justify an award of counsel fees, a sufficient evidentiary basis must exist for the court to evaluate the respective financial circumstances of the parties and value of the services rendered' Moreover, Supreme Court cannot award counsel fees based solely upon written submissions, unless so stipulated to by the parties. The proof submitted concerning the financial circumstances of the parties was limited to written submissions by respective counsel. As the record
did not contain evidence of a stipulation agreeing thereto, the proof of the financial circumstances of the parties was inadequate for Supreme Court to properly assess the award of counsel fees. The Appellate Division reversed and remitted to Supreme Court for an evidentiary hearing (citing its 2003 decision in Yarinsky v.Yarinsky, 2 A.D.3d 1108 [3 Dept 2003] ).

Website Back to Speed

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Court of Appeals Holds Family Court Lacked Subject Matter Jurisdiction to Entertain Wife's Application for Increased Spousal Maintenance Despite "De Novo" Provision of Separation Agreement

In Matter of Johna M.S. v Russell E.S., --- N.Y.3d ----, 2008 WL 1860165 (N.Y.) Petitioner wife and respondent husband executed a written separation agreement in 2003. No divorce action was commenced. The agreement provided that the husband would pay the wife $100 per week in spousal maintenance and $250 per week in child support. The section of the agreement pertaining to maintenance stated: "while this agreement will resolve these issues for the present time, the Wife shall not be foreclosed from seeking additional maintenance in negotiation with the Husband, or failing such negotiation, then filing in a court of appropriate jurisdiction for a modification of the present provisions concerning the payment of maintenance. Any application by the Wife shall be treated as a 'de novo' application to the court, since it is not possible to set future maintenance at this time because it is impossible to forecast the Wife's needs or the Husband's income/earning capacity."
The wife commenced a Family Court Act article 4 proceeding seeking an upward modification of maintenance and child support. The Support Magistrate dismissed that portion of the wife's application seeking additional spousal maintenance for lack of jurisdiction. The court noted that no proof was offered that the wife was likely to become a public charge (see Family Court Act 463); thus, the parties were bound by the terms of the separation agreement on the issue of spousal maintenance. Family Court affirmed, as did the Appellate Division. The Court of Appeals affirmed. It held that Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute. It generally has no subject matter jurisdiction to reform, set aside or modify the terms of a valid separation agreement. Nor can an agreement of the parties confer on Family Court the power to modify the terms of a separation agreement. A statutory exception to the rule prohibiting the modification of separation agreements, not applicable here, exists where a spouse "is likely to become in need of public assistance or care" (Family Court Act 463). Family Court lacked subject matter jurisdiction to entertain the wife's application for increased spousal maintenance. Although the parties' separation agreement purported to permit Family Court to treat any application by the wife as "de novo," such language cannot confer jurisdiction upon Family Court. The wife's petition to Family Court for increased maintenance expressly stated that it was "an application to the Court for an upward modification of spousal support," premised on the insufficiency of current maintenance due to a loss of certain Social Security benefits. In practical terms, the wife was not presenting a new, or "de novo," application for maintenance to Family Court. She was seeking increased maintenance from that provided under the separation agreement. Thus, because the wife was seeking a modification of a spousal maintenance award set forth in a separation agreement, Family Court was without jurisdiction to entertain the petition and grant the requested relief. Justice Smith dissented in an opinion

Second Department Holds Counsel Fees to Nonmonied Spouse Generally Warranted Where a Significant Disparity in Parties Financial Circumstances and Should Not Be Denied, or Deferred Absent Good Cause, Articulated in a Written Decision

In Prichep v Prichep, --- N.Y.S.2d ----, 2008 WL 1987254 (N.Y.A.D. 2 Dept.) the Second Department, in an opinion by Justice Prudenti, held that because of the importance of such awards to the fundamental fairness of the proceedings, an award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties and should not be denied, or deferred until after the trial, which functions as a denial, without good cause, articulated by the court in a written decision. It cited as examples of good cause, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case. It based this conclusion on the fact that when an action for a divorce is commenced, it is often the case that most of the marital assets available for the payment of legal fees are possessed or controlled by one of the spouses, usually the husband. In order to ensure that the parties will have equal access to skilled legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the nonmonied spouse during the course of the litigation. The court pointed out that when a party to a divorce action requests an interim award of counsel fees, as opposed to a final award, a detailed inquiry is not warranted. The husband commenced the divorce action in 1998. In June 2005, the wife made a pretrial motion for interim counsel fees of $35,000. The wife's motion papers noted that, although the court previously had awarded her interim counsel fees of $20,000, she currently owed her attorneys $53,009. The wife pointed out that the husband was a "highly successful vascular surgeon," earning $420,100 per year, while she worked part-time as an early intervention therapist, earning $4,015 per year. In opposition to the wife's motion, the husband argued that the wife had "over-litigated" the case, creating and submitting voluminous and unnecessary papers, and thus generating excessive counsel fees. Supreme Court denied the wife's motion "without prejudice to renewal before the trial court to determine the financial circumstances of the parties, the nature and complexity of the case, which includes the valuation of a medical practice, the fees filed and legal services rendered and the expertise of the attorneys." The wife thereafter moved to renew her prior motion and for an additional award of interim counsel fees of $40,000. Her attorney submitted an affidavit asserting that the wife now owed his firm $159,000 in legal fees, as well as invoices and attorney time records documenting billings in that amount. In the alternative, the motion sought leave to withdraw as her counsel. Supreme Court denied the motion for fees but granted the law firm's request to the extent of relieving it as counsel for the wife. An award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse. Such an award "is appropriate 'to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation' "(citing Gober v. Gober, 282 A.D.2d 392, 393, quoting O'Shea v. O'Shea, 93 N.Y.2d at 193; see Charpie v. Charpie, 271 A.D.2d 169). If the playing field were not leveled by an award of interim counsel fees, "a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior matrimonial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis".

Third Department Holds That Absent Stipulation No Pendente Lite Counsel Fee Award Without A Hearing

In Bush v Bush, 46 A.D.3d 1140, 848 N.Y.S.2d 721 (3d Dept, 2007) Defendant cross-moved for among other things, interim counsel fees in the amount of $85,172.81. Supreme Court awarded defendant interim counsel fees of $25,000. The Appellate Division reversed. It held that to justify an award of counsel fees, a sufficient evidentiary basis must exist for the court to evaluate the respective financial circumstances of the parties and value of the services rendered' Moreover, Supreme Court cannot award counsel fees based solely upon written submissions, unless so stipulated to by the parties. The proof submitted concerning the financial circumstances of the parties was limited to written submissions by respective counsel. As the record did not contain evidence of a stipulation agreeing thereto, the proof of the financial circumstances of the parties was inadequate for Supreme Court to properly assess the award of counsel fees. The Appellate Division reversed and remitted to Supreme Court for an evidentiary hearing (citing its 2003 decision in Yarinsky v.Yarinsky, 2 A.D.3d 1108 [3 Dept 2003] ).

First Department Critical of Law Guardian too!

Law Guardian May Not Be Unsworn Witness and Must Comply with Law Guardian Rules of the Chief Judge

In Naomi C v Russell A, --- N.Y.S.2d ----, 2008 WL 304936 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed without a hearing Court’s dismissal of a petition to modify a custody order. The Appellate Division pointed out that with the parties present, the court asked the Law Guardian, on the record, to discuss the position of the 10-year-old child regarding how well the current custody arrangement was working. Although the court was warranted in dismissing the petition on its face, the questioning of the Law Guardian (now called Attorney for the Child) by the court was " something that should not be repeated". Although the court was correct to disallow the "cross-examination" of the Law Guardian by petitioner's counsel, the court should not consider the hearsay opinion of a child in determining the legal sufficiency of a pleading in the first place. Most importantly, such colloquy makes the Law Guardian an unsworn witness, a position in which no attorney should be placed. It emphasized that the attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to becoming a witness in the litigation. (Citing Rules of the Chief Judge [22 NYCRR] 7.2[b] ).

New York Recent Decisions of Interest

Second Department Removes Law Guardian Failure to Comply With Rules of Chief Judge

In Cervera v Bressler, --- N.Y.S.2d ----, 2008 WL 1748331 (N.Y.A.D. 2 Dept.) the parties' entered into a stipulation, later so-ordered by the court, in which they agreed to joint custody, with primary physical custody with the mother, visitation to the father
on alternate weekends and one weekday per week, and the removal of certain restrictions on visitation that had been imposed temporarily. In July 2005, the attorney for the child moved by order to show cause for supervised visitation, based on various allegations by the mother, including one allegation of sexual molestation. The sexual molestation allegation was subsequently determined to be unfounded. Although a hearing on the motion was scheduled at least once, it never took place, and visitation by the father remained supervised since July 28, 2005. The Appellate Division held that supervised visitation was appropriately required only where it is established that unsupervised visitation would be detrimental to the child and because no hearing was ever held on the order to show cause visitation remained supervised, and telephone contact between father and daughter was monitored, for about 2 1/2 years, based solely on the hearsay allegations of the mother. These consisted of the allegations of molestation, which were determined by OCFS to be unfounded, and stories of various incidents, the details of which were disputed by the father and, were insufficient to show that unsupervised visitation would be detrimental to the child's well-being. Under these circumstances, it was unacceptable to the Second Department that the hearing had not been held, although ordered more than 2 1/2 years earlier. This arrangement resulted in the violation of the father's right to reasonable access and visitation.
It also held that the court should not have required the father to pay the cost of supervising his visitation without determining the economic realities, including his ability to pay and the actual cost of each visit. Finally, it held that the court improvidently exercised its discretion in denying the father's motion to remove Joshua D. Siegel as the attorney for the child. It referred to the new rules that had been recently promulgated by the Chief Judge and stated that an attorney for the child should not have a particular position or decision in mind at the outset of the case before the gathering of evidence. On the other hand, attorneys for children are not neutral automatons. After an appropriate inquiry, it is entirely appropriate, indeed expected, that an attorney for the child form an opinion about what action, if any, would be in a child's best interest. An attorney for the child is not an investigative arm of the court. While attorneys for the children, as advocates, may make their positions known to the court orally or in writing (by way of, among other methods, briefs or summations), presenting reports containing facts which are not part of the record or making submissions directly to the court ex parte are inappropriate practices. Here, in the order to show cause , and the affirmation in support, as well as in every affirmation submitted thereafter, the attorney for the child included facts which were not part of the record, but which constituted hearsay gleaned from the mother. This behavior on the part of the attorney for the child, as well as his repeated ad hominum attacks on the father's character, was both unprofessional and improper, as it amounted to the attorney for the child acting as a witness against the father, in violation of the Rules of the Chief Judge (see 22 NYCRR 7.2[b] ).

Law Guardian Rebuked for Failure to Follow Rules of Chief Judge and Wishes of Child

In Matter of Delaney v. Galeano,--- N.Y.S.2d ----, 2008 WL 1823048 (N.Y.A.D. 2 Dept.) the attorney for the child appealed from an order of the Family Court, which, after a hearing, denied his motion to hold the respondent mother in contempt. Upon receipt of a copy of a letter dated June 15, 2007, from the 14-year-old child to the effect that he did not want the appeal to proceed, the Appellate Division issued an order to show cause directing the parties or their attorneys to show cause why an order should not be made dismissing the appeal in the above-entitled proceeding as withdrawn. After argument of the appeal the motion was granted and the appeal was dismissed as withdrawn. The Appellate Division held that where "the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child" (22 NYCRR 7.2[d][2]). Here, the child on numerous occasions has expressed concern that his attorney was not representing his wishes. Additionally, he requested that the appeal be withdrawn, prompting the Court to require the parties or their attorneys to show cause why the appeal should not be dismissed as withdrawn. In response to that order to show cause, the attorney for the child failed to demonstrate any basis upon which the child's preference may properly be disregarded (see 22 NYCRR 7.2[d][3] ).

Latest New York Decisions Now Posted (and discussed)

This blog is written as a public service to provide useful information to the New York bench, bar and litigant. We have tried to decide on a format for the posting on this blog which will differ from the other blogs on the web. Almost all of the divorce and family law blogs we have visited contain general discussions of recent cases reported in the media which are newsworthy, but are not really important or helpful for the attorneys, judges and litigants involved in the New York Court System.

We have decided to use our blog to create an alternative source for some of the information available on our New York Divorce and Family Law web site.

This site will report on recent New York decisions regarding New York Divorce and Family Law which, in our opinion, are important for those involved in the New York court system. Where appropriate, our postings will contain editorial comment. We welcome your contributions and comments.

Skadden

Rumor has it that different agencies are paying different rates on the Skadden project. Be careful!

Aunt Sallie Mae

What keeps a generation of indentured servants docile in white collar cockroach infested sweatshops? Sallie Mae.

Every heavily indebted law school graduate knows what a mistake it would be to fuck around with Sallie Mae. Don't be deceived by her sweet sounding name. Miss just one payment, and she will literally come after you and destroy your life. As Elizabeth Warren recently noted, "Aunt Sallie Mae has collection powers that would make even a mafioso blush."

How did Aunt Sallie Mae become so powerful? Click on the following Credit Slips link to find out. It includes a link to some recently leaked documents detailing Aunt Sallie's official Washington lobbying strategy:

http://www.creditslips.org/creditslips/2007/06/student_loan_sc.html#more/

Hot or Not?

Free polls from Pollhost.com

Hot or Not?

1 - NOT 2 3 4 5 6 7 8 9 10 - HOT

Meet Counsel on Call's Chad Schmidt. He's just another sleazy recruiter who is trying to squeeze his way into the lucrative East Coast temp attorney market. How is he doing it? By throwing himself into the media, and smearing the reputations of the very same people that he is planning to employ:



http://www.boston.com/business/articles/2008/05/05/these_temp_lawyers_are_top_notch_a_new_firm_in_boston_promises/



As fellow blogger "Wicked Words" recently stated, "No wonder I'm expected to feel ashamed for not finding a decent job in a horrible economy. The guys who are supposed to help job searchers do nothing but put them down!" When these job candidates eventually do land a gig, these very same recruiters do nothing for them except fleece them out of half of their pay.



----------------------------------------------------------------------



Wicked's Open Letter to the Boston Globe



May 12, 2008



IT IS with a dull anger that I read your article, "These temp lawyers are top-notch, a new firm in Boston promises" (Business, May 5), which my grandmother handed to me as I was clicking on the classifieds in a fruitless effort to find an ad for a junior-level attorney.



You see, I have four years of an Ivy League education, followed by three years of law school, and admission to the bar. In a world where someone with a doctor of jurisprudence is automatically considered to be one of the top earners in the country, the Globe frittered away the opportunity to report on the underclass of lawyers who are mired in tens (if not hundreds) of thousands of dollars in debt and count on document review to pay the bills.



Instead, the story gleefully perpetuated a "stereotype" by noting that a contract attorney is a "fancy name for recent law school graduates who are desperate for work."



And it touts the services of a staffing firm that refuses to hire recent graduates who "couldn't get a job anywhere," without bothering to interview a single contract attorney.



This recent underemployed attorney also used to be a journalist. Maybe I should have remained one, as the Globe could certainly use a refresher in one of the cardinal rules of journalism: Always examine all potential angles.

The 13th Amendment Has Been Abolished

Time to go off topic. It's time to talk about the modern day American slave trade. Slavery in New York City is alive and well. Take a look around - you don't realize it, but many of the people that you share the sidewalks with in the morning are slaves right out of the 19th century.

Farmers in Fujian Province in southern China, for example, are willing to pay "recruiters" as much as $80,000 to be smuggled into the United States. The ultimate destination is most often New York City (specifically Chinatown, Flushing, and southern Brooklyn) with its large Chinese population. The smuggling organizations are complex operations that recruit directly in the Chinese villages, follow the immigrant through the whole emigration process, provide forged immigration documents, and provide for the initial cache of food and shelter.

Once here, the immigrant is trapped within the insular Chinese immigrant community, has little knowledge of English and American ways, and is saddled with debt that is virtually impossible to pay. The slave master then assigns the immigrant to horrific working condition in dangerous sweatshops, or relegates them to 80 hour work weeks in a variety of menial positions. Many of the immigrants are assigned to work within the drug trade. Young girls are oftentimes forced into mandatory prostitution. Those who break down and eventually want to return to China are threatened with extortion, bodily injury, and even death.

Deflate the Rate - Audrey Golden Associates

"Reply to: job-677485521@craigslist.org
Date: 2008-05-12, 11:35AM EDT

Large Manhattan-based Insurance defense Law Firm is seeking several attorneys for a 2+ month document review project involving insurance issues. The correct candidate should be computer literate. No prior doc review experience necessary. 40 hours work week. Pay is $23.00 per hour. Nice work environment."

Shitty Agency Health Insurance

Let's say your on your 13th hour of clicking away in the cockroach infested Paul Weiss basement, and you suddenly experience a sharp radiating pain and tightness in your inner chest. You know that document review increases your likelihood of deep vein thrombosis, and you are keenly aware of the fact that two of your colleagues recently passed away from massive coronaries. What do you? Do you go to the hospital?

Let's see. Worst case scenario, you at least have your trusty agency health insurance to fall back upon. The firms/agencies may be stealing away 80% of your salary, and the ABA may be allowing biglaw to treat you like a bunch of subhuman day laborer miscreants, but at least you have your health insurance and free Hudson pizza on Thursdays! Surely, those hundreds of dollars that get taken out of your paycheck every month must be good for something.

Let's examine a typical plan.

Robert Half Legal offers the Aetna Affordable Health Choices BenefitsPLUS Group Plan. Suppose, you need a simple stent and angioplasty, a single day procedure that generally runs in excess of $50,000. You breath a sigh of relief, until you actually read the terms of your shitty health plan. After a $200 deductible, Aetna will only cover $250 for a night at the hospital, $1,500 for surgeon fees, $250 for the anesthesiologist, and $1,000 for "other hospital services," whatever that means.

If you decide to go through with the procedure, you will essentially be responsible for the entire hospital bill, and you can count on being stuck for several more years in document review hell, in order to pay it all off. And, this isn't even all that serious. What if, god forbid, you contracted cancer, or needed open heart surgery? It's a horrible thing to consider, and enough to make someone want to go off to the bar, get inebriated, and just hope that one doesn't wind up like their colleagues who were carried out of the basement and placed in a mortuary.

Fired!

From Above the Law, here comes an account of a Paul Hastings associate having to experience firsthand the misery, phoniness, artificiality, disingenuousness, and uncertainty that contract attorneys deal with on a daily basis.

"From: [Redacted]
Sent: Monday, May 05, 2008 10:14 AM
To: [redacted]
Subject: My departure

The circumstances surrounding my departure from Paul Hastings have been deeply disappointing. It is one thing to ignore an email sent as a colleague is waiting to have her uterus scraped after a miscarriage, but it is wholly another level of heartlessness to lay her off six days after that. [Partner X] is the only one who expressed any sympathy after my miscarriage, and I am grateful to him for that.

A business is a business, but it takes very little to convey some level of humanity to carry out even the most difficult business decisions. We are human beings first before we are partners or associates. Had you simply explained that the department is unable to sustain the number of associates in the office, I would have completely understood. Had you explained that the office had been directed to reduce the number of associates and I was chosen because of my high billable rate and low billable hours, I would have appreciated such directness, even though the consequences of blindly raising billable rates to an unsustainable degree is plainly predictable. What I do not understand is the attempt to blame the associate for not bringing in the business that should have been brought in by each of you and to hide your personal failures by attempting to tarnish my excellent performance record and looking to undermine my sense of self esteem.

The last few months have been surreal, at best. Just last year, I had celebrated my engagement and marriage with many of you. In fact, during the engagement party, the head of the department took my then-fiancée aside to express to him what a great attorney I am and what a great future I faced. Indeed, less than a week before this year's bizarre performance review, I was again told by the same partner that my work is great and that the slow business in no way reflected on my performance. A week later, I was given a mediocre performance review and told that I should worry about whether I have a future at Paul Hastings. When I asked for specific examples of my alleged deficiencies, I received no response. When I asked for an explanation as to why I had been downgraded in so many performance categories when I received absolutely no criticism throughout the year and my prior year's review was stellar, I was told that my prior year's performance assessment may have been "over-inflated." What a startling response.

After my miscarriage, I had discussed my concern with several associates that Paul Hastings may use that opportunity to lay me off quickly before I have a chance to get pregnant again. Those associates thought it unfathomable that a firm would be so callous and assured me that Paul Hastings isn't that kind of a place. What a lesson this has been for them - and for me. I would not have anticipated that a partner would tell me one thing and completely renege on his words a week later. I would not have anticipated that a female partner (whom I had looked to as a role model) with children of her own would sit stone faced as I broke into tears just days after my miscarriage. Even a few words of sympathy or concern would have made a world of difference. What kind of people squander human relationships so easily?

If this response seems particularly emotional, perhaps an associate's emotional vulnerability after a recent miscarriage is a factor you should consider the next time you fire or lay someone off. It shows startlingly poor judgment and management skills -- and cowardice -- on your parts. If you should ever have the misfortune of suddenly losing something or someone precious to you, I hope you don't find similar heartlessness as I have.

As for your request for a release, non-disclosure, and non-disparagement agreement in return for three months' pay, I reject it. Unlike you, I am not just a paid mouthpiece with no independent judgment. I will decide how and to whom to communicate how you have treated me. I find it ironic that you would try to buy the right not to be disparaged after behaving as you have. Your actions speak volumes, and you don't need much help from me in damaging your reputation.

I attach the proposed release for any associate who may be interested in reviewing its details.

[Redacted]"

http://abovethelaw.com/2008/05/paul_hastings_farewell_email_a.php/

Hudson Legal: A Global $1.2 Billion Company Exploiting Workers Worldwide

Every wonder why you lack health insurance, why temp agencies are so profitable, and why you have to work a grueling 80 hours a week just to fill your gas tank? Maybe, it's because Hudson steals half your wages:

"Hudson Legal, a division of Hudson (NASDAQ: HHGP), a $1.2 billion global company, and the world’s largest legal staffing and litigation/eDiscovery outsourcing solutions company, is seeking a senior level sales executive who has demonstrated ability in sales, closing and client relationships, particularly in legal support services, and is ready to make more money than he/she ever dreamed possible! Individual will be responsible for selling to high-level decision makers in both corporate legal departments and law firms to utilize eDiscovery solutions offerings, including legal staffing, outsourced space and technology solutions, and management oversight of entire discovery review process. Successful candidate will have a background in either sophisticated legal staffing and outsourcing sales and/or litigation technology support services sales. Position offers a base salary plus generous commission plan, along with expense account and freedom to exercise an entrepreneurial spirit and enthusiasm. Only self-motivated, extremely personable and highly spirited individuals need apply."

http://jobsearch.us.hudson.com/getjob.asp?JobID=71418334