Robert G. Smith, PLLC

Abuse Of Discretion Cited As Reason To Vacate Contempt Adjudication

Experienced divorce lawyers are all too familiar with the tribal and " Hatfields and McCoys" nature of child custody cases.  The Appellate Division First Department decision in Gottlieb v, Gottlieb (March 24, 2016 ) adds a Shakespearian measure of mercy to a very unfortunate child custody case.  At the age of 28, when the parties' daughter was 2 years old, the husband suffered a debilitating stroke from an undetected brain aneurysm.    Following several weeks in a coma and four brain surgeries the husband emerged partially paralyzed, requiring a wheelchair and residing in a nursing home.   The trial court's contempt penalties of $ 271,217.79 on the husband's parents for an alleged delay in paying the court appointed neutral forensic mental health expert were vacated as an abuse of discretion, because his parents were under no legal or contractual obligation to pay those fees.  The Appellate Division held that the husband's failure to pay the fees from a source  other than an escrow fund from the sale of the marital residence did not meet the definition of frivolous conduct under the Court Rule 130 - 1.1[c].   The Appellate Court also rejected the trial court's conclusion that there would be no visitation trial if an e mail in which the husband reportedly stated that he did not want visitation with his daughter had not been suppressed.  The Appellate Division stated that the fact that the husband thereafter proceeded to trial constituted irrefutable proof to reject the trial court's conclusion.  However, the Appellate Division did affirm the trial court's frivolous conduct characterization of the husband's challenge to a Beth Din arbitration.  The Appellate Division panel included Justices Friedman, Saxe Feinman and Gische.  Justice Manzanet's dissent contains a crisp presentation of the facts.     

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