Robert G. Smith, PLLC

June 2016 Archives

A Fraud Charge Requires A Material Fact, Scienter And Reliance. The Lawyer's Failure Of Proof Resulted In Monetary Sanctions

    In Yeun-Ah Choi v. Shoshan, 136 AD3d 506 (1st Dept. 2016) the wife sued for divorce. The husband's divorce attorney Walter Bottger, found by the divorce court and the appellate court to be experienced and qualified, allowed his client to enter into a settlement agreement wherein he agreed to pay wife's reasonable interim counsel fees. According to the published court opinion on appeal, the husband later moved in court to set aside the settlement agreement, alleging that it was the result of fraud, misrepresentation, or other misconduct or that to enforce stipulation would have been unjust or inequitable or have permitted wife to gain unconscionable advantage. The trial court denied the husband's motion to set aside the settlement agreement, and the panel of Appellate Division judges affirmed that finding. The appellate court stated: "counsel's claim that he had been "misled" into entering the stipulation was properly rejected, given counsel's significant legal experience, and the fact that the wife never made any representation in the stipulation regarding future increases in her counsel's average monthly legal fees * * * " The appellate court did not stop there. It also affirmed the trial court's award of monetary sanctions for making the motion to set aside the settlement agreement. Pursuant to the New York there is a New York court rule which bars conduct defined as "frivolous" [22 NYCRR § 130-1.1(c)(1)].   The appellate court stated that the "husband's counsel had not been misled into entering into the stipulation and that wife never made representation regarding future increases in her counsel's average monthly legal fees.  The husband's conduct was frivolous and warranted sanctions because the motion to vacate stipulation was not based on good-faith argument that was ultimately found to be unpersuasive, and because there was no legal merit to husband's motion.

Considering divorce when making financial decisions

Negotiations over the division of marital property are often difficult and delicate for divorcing couples in New York, and this can be especially true when important financial decisions have generally been made by only one of the spouses involved. Decisions about matters such as estate and retirement planning are generally made based upon what makes the most financial sense, but even the most prudent of choices can leave spouses at a disadvantage during divorce negotiations.

Bartolo Colon reaches an agreement about child support

Bartolo Colon, the pitcher for the New York Mets, reached a settlement agreement with his ex-girlfriend in the child support case she filed against him. Colon, who has been married for longer than 20 years to his wife, has two children with his ex-girlfriend who are ages 7 and 8.

In A Closely Watched Child Custody Case, The New York Court Of Appeals Has Reversed A Child Custody Determination Made Without A Hearing

In a New York child custody case entitled SL v. JR  the trial court had held that the parties' affidavits and the report prepared by the court-appointed forensic evaluator sufficiently demonstrated that the mother had admitted allegations regarding her emotionally destructive and sometimes violent behavior toward the father and the parties' two children to support a child custody award to the father without an evidentiary hearing.  The forensic mental health evaluator, who interviewed the parties and the children, concluded in a written report that the father was the more stable parent, and that he was able to make sound parenting decisions for the children. The attorney for the children also supported the award of custody to the father. 

If The Marital Settlement Agreement Does Not Explicitly State That The Obligation To Pay "College Expenses" Ends At Age 21, Or The Course Of Study Must Be Continuous, The Contract Obligation Continues.

Without a settlement agreement New York divorce lawyers all should know it is settled New York law that the parent's obligation to pay direct child support and eeducation expenses as New York child support ends when the child reaches age 21.   In Levenglick v. Levenglick,2016 NYSlip Op 04802, decided on June 16, 2016, the Appellate Division First Department of the New York State Supreme Court ruled that a marital settlement agreement which obligated the father to pay "the entire cost of the children's private school and higher education" obligated him to pay for his parties' daughter's college education past the age of 21. The appellate court held that there was no need to look beyond the four corners of the document to determine whether the parties intended for the obligation to end at age 21. As perhaps a drafting suggestion to the bar, the appellate court observed that there was no "articulated limitation based upon a particular age, number of consecutive years or course of study".  The court also determined that the "costs of higher education" does include "tuition and tutoring expenses, as opposed to, for example, costs associated with living off-campus, which would be excluded as not being under the purview of  "the costs of higher education."

Mother of rapper's child sues for child support

New York music fans may be interested to know that the rapper Future is being sued for an increase in child support. The case has roots in an earlier 2013 case involving the rapper and the mother of one of his children. In 2013, he claimed that he made $16,000 a month while the mother claimed he made more than $50,000 a month.

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