The other aspect of the trial court’s monetary sanctions awards in Gottlieb v. Gottlieb, was decided by the Appellate Division, First Department on April 21, 2016.
Previously, on March 24, 2016, citing an abuse of discretion by the trial court the Appellate Division First Department vacated 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, because his parents were under no legal or contractual obligation to pay those fees. The facts of the case are most unfortunate. 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 Appellate Division 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, as refuted by the the fact that the husband thereafter proceeded to trial.
Today other aspects of the trial court’s discretion were rejected by the Appellate Division. The trial court had assessed monetary sanctions of $ 317, 480. 67 against the law firm representing the husband and his parents. The Appellate Division has reduced that monetary award to $ 20,000 – – not a pittance – – but still a very substantial reduction. The Appellate Division panel stated that although the monetary sanctions rule against frivolous conduct allows an award of costs in the form of “reasonable attorney’s fees” against an attorney or a party to the litigation or “against both”, the Court rule does not authorize a double recovery, nor is an award of twice the amount of attorneys’ fees “reasonable.” Once again the Appellate Division commented that the attorneys did not act frivolously in continuing to litigate the visitation trial. The appellate court observed that if the husband did not want visitation, he could have simply withdrawn his request, and his failure to do so as well as the fact that he testified at length in that trial regarding his desire for visitation, refuted the trial court’s rationale for assessing monetary sanctions. Also of interest was the Appellate Division’s vacatur of the trial court’s award of attorneys’ fees incurred in making and pursuing the motions for sanctions, and in participating in the sanctions hearing, as impermissible “fees on fees”.