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http://www.law.com/jsp/article.jsp?id=1202421556104 Hundredfold Disparity
in Spouses' Incomes Leads to Award of Interim
Counsel Fees By Vesselin Mitev May 21, 2008, New York Law Journal (USA)---A husband earning roughly 100 times more than his wife must pay her counsel $75,000 in interim fees, a Brooklyn appeals panel has ruled, reversing a Long Island judge who denied the wife's requested relief. In Prichep v. Prichep, 28727/08, the Appellate Division, 2nd Department held that Supreme Court Justice Joseph C. Pastoressa of Suffolk County "articulated no reason" for denying pretrial motions by Patti Prichep seeking interim counsel fees from her husband, Robert. Because of the importance of such awards to the fundamental fairness of the proceedings, "an application for interim counsel fees by the non-monied spouse in a divorce action 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," wrote Presiding Justice A. Gail Prudenti for a unanimous panel. Robert Prichep, described in the decision as a "highly successful vascular surgeon" who earned $420,100 annually, filed for divorce in 1998 from his wife, Patti Prichep, an early-intervention therapist who made about $4,015 per year. In June 2005, Ms. Prichep made a pretrial motion requesting, pursuant to Domestic Relations Law §237, an award for interim counsel fees paid by Mr. Prichep in the amount of $35,000. Acknowledging she had previously been awarded $20,000 in interim counsel fees, she stated she currently owed her attorneys $53,009. In support of her motion, she pointed out the vast discrepancy in earning power between herself and Mr. Prichep. Mr. Prichep argued that his wife had "over-litigated" the case, papering the court with "voluminous and unnecessary" documents, resulting in "excessive counsel fees." Mr. Prichep denied allegations that he had failed to cooperate in the discovery process or had engaged in any "obstructionist tactics." In an order dated Feb. 23, 2006, Justice Pastoressa declined to award Ms. Prichep the $35,000 in fees, but allowed her to renew the motion to 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 judge said originally that this matter [of interim fees] will be resolved by the trial court," said Stephen W. Schlissel, who represented Ms. Prichep, in an interview. Schlissel, of Garden City, N.Y.-based Schlissel, Ostrow, Karabatos & Poepplein, said Ms. Prichep, who "couldn't afford to pay us," owed his firm $159,000 in legal fees at that point. After Justice Pastoressa denied Ms. Prichep's motion for $35,000 in interim fees, her attorneys sought leave to renew the original motion, as well as an additional award of $40,000. "If he denied that, we asked him to consider, in the alternative, to relieve us as counsel," said Schlissel, who handled the appeal pro bono along with Joseph A. DeMarco. "There comes a point where you can't carry [a case] anymore." On Aug. 17, 2006, Justice Pastoressa denied the motion for additional fees but granted the relief of counsel. In his opinion, the judge wrote that Ms. Prichep had presented "no new facts or legal arguments to warrant deviating from [the court's] original ruling that the question of the amounts of additional counsel fees due outgoing counsel will be addressed at trial where the court can be in a better position to determine the financial circumstances of the parties, the nature and complexity of this case." In a unanimous decision, the 2nd Department disagreed that the fee disbursement should be delayed. Justice Prudenti was joined by Justices Robert A. Lifson, Joseph Covello and Ruth C. Balkin. 'ECONOMIC DISPARITY' The purpose of the applicable law, as explained by the Court of Appeals, is to "redress the economic disparity between the monied spouse and the non-monied spouse," wrote Justice Prudenti, citing O'Shea v. O'Shea, 93 NY2d 187. In that case, the court noted that such a disparity is "typically" disadvantageous to the wife, prompting the Legislature to give trial judges the discretion to see that "the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet." As an award of counsel fees is within the "sound discretion of the trial court," determinations must be made on an individual basis, taking into account the financial circumstances of both parties, as well as whether either party has unnecessarily prolonged litigation, wrote Justice Prudenti. But when dealing with interim, not final, counsel fees, "no such detailed inquiry is warranted," she added. "An award of interim counsel fees ensures that the non-monied spouse will be able to litigate the action, and do so on equal footing with the monied spouse," wrote Justice Prudenti. Thus, delaying interim counsel fees in "contentious matrimonial litigation" which may require a "regular infusion of funds," may compromise the ability of a non-monied spouse to effectively present his or her case, wrote the judge, citing among others, the Court of Appeals case Frankel v. Frankel, 2 NY3d 601. An award of interim counsel fees "will generally be warranted" where there is a "significant disparity in the financial circumstances of the parties," wrote the judge. "Accordingly, courts should not defer requests for interim counsel fees to the trial court, and should normally exercise their discretion to grant such a request made by the non-monied spouse, in the absence of good cause -- for example, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case -- articulated by the court in a written decision." The panel held that the trial court "articulated no reason for denying interim counsel fees, but merely stated that the trial court would be in a better position to assess the factors relevant to an award of counsel fees." As there was no "serious dispute" that Mr. Prichep had greater financial resources than his wife, an order to cover Ms. Prichep's interim legal expenses should have been issued, Justice Prudenti wrote. According to Schlissel, the appellate panel's decision "is going to lead to a dramatic improvement in the ability of [non-monied spouses] to obtain quality representation." C. Donald Shlimbaum of Shlimbaum & Shlimbaum in Islip, N.Y., represented Mr. Prichep. Shlimabum and Janet M. Phillips handled the appeal. Shlimbaum characterized the decision as "politically correct" but "surprising." He declined to elaborate. A decision on the divorce judgment is pending. After Schlissel was relieved from the case, Ms. Prichep hired Howard Benjamin of Manhattan to represent her. He did not return calls for comment. Schlissel said he plans to work out a payment arrangement privately with Ms. Prichep, whom he called a "nice lady." Garden City attorney Sari M. Friedman, who is not involved in the case, said that a court should consider other factors when awarding interim fees, not just whether there is a financial discrepancy between the two parties. "Clearly a non-monied spouse should get fees if the other spouse has the liquid assets to pay and if the monied spouse is causing the litigation to protract inexcusably, no question," said Friedman. "Does the other spouse have the liquid assets to pay? Or are the pendente lite obligations such as to drain the spouse's income when there is no source of ready cash? Is the non-monied spouse protracting the litigation? These are all factors which should be addressed." http://www.westernstandard.ca/website/article.php?id=2773 Diaper duty revisited In 2007, the Alberta Court of Appeal refused to recognize the validity of a written agreement between common-law partners John and Jane Doe which stipulated that John had no parental responsibilities towards Jane's child. Why must Alberta men pay for sex whenever a child is in the offing? By Dr Grant Brown May 6, 2008, The Western Standard (CAN)---The facts in Doe v Alberta, 2007 ABCA 50, are easily summarized: John and Jane Doe are common-law partners. Jane wanted a child, but John did not wish to father a child, stand in the place of a parent, act as a guardian, or support a child. Jane was artificially inseminated with another man’s sperm, and gave birth to a child. John and Jane wanted to enter into an express written agreement which would stipulate that John had no parental rights or responsibilities toward Jane’s child. They sought a declaration of the validity of such an agreement, in view of certain provisions in the Family Law Act that grant the courts ultimate supervisory authority over the assignment of parental rights and responsibilities. In effect, John and Jane Doe wanted the court to exercise its supervisory authority at present, in such a way as to bind the supervisory authority of a future court that might otherwise be called upon to adjudicate their parental rights and responsibilities. They wanted to predetermine the outcome of any legal dispute over parental rights and responsibilities that might arise. It is important to note that no clause in their agreement actually contradicted the provisions in the Family Law Act. They didn’t ask the court to over-ride the Act; they asked it to write into stone what might otherwise be a changing and unpredictable legal status under the Act.
practical and realistic point of view, into the role of parent to this child. Can it seriously be contended that he will ignore the child when it cries?When it needs to be fed? When it stumbles? When the soother needs to be replaced? When the diaper needs to be changed? The essence of this decision, to be blunt, is that men must pay for sex whenever a child is in the offing. I have some issues with that proposition even when the child is the man’s biological offspring. For example: If a woman seduces a man who is intoxicated or otherwise incapable of consenting to sex, it should lead to a rape conviction by the woman, not a lifetime of involuntary servitude by the man. If a woman induces a man to have sex with her by lying about being infertile or on birth control, this fraud should vitiate the man’s support obligations. If a woman gets pregnant, hides the fact from the father by disappearing for a few years, and then comes back with her hand out asking for child support after he has been deprived of an opportunity to be a part of the child’s life, this kidnapping should also vitiate his financial obligations to the child. Anything else would be un-libertarian. But the Court of Appeal went one giant leap further by implying that the mere choice to “enter into a relationship of interdependence of some permanence with the mother of a newborn child” necessarily entails an inescapable obligation to financially, physically, and emotionally support the child. Why? Simply because “support obligations flow.” That is no argument, unless you count begging the question an argument. Since it is possible to voluntarily contract into a specific and unchanging set of parental rights and responsibilities, taking away the freedom to do so is precisely to deprive this couple of the ability to order their lives and their respective rights and obligations towards the child as they see fit. The question is why John and Jane Doe must be deprived of the freedom of contract that Jane and her sperm donor have exercised. If John Doe were a favoured uncle who lived in the same home as the mother of a newborn child, or a gay house-mate or renter, or a live-in nanny, then surely, he would have all of the duties of care for infants in distress that members of society at large have, plus whatever additional duties were specifically contracted for with the mother – and nothing more. Furthermore, in that case, rather than John owing support obligations to the child, Jane might well owe John remuneration for his invaluable daycare services. Why, on the mere basis that John and Jane share a bed, is the flow of entitlement to financial support reversed by the Alberta Court of Appeal? My position has the singular advantage of being endorsed by the Supreme Court of Canada. In the leading case dealing with the equitable doctrine of unjust enrichment in cohabitation arrangements, Peter v Beblow (1993), 1 S.C.R. 980, a woman sought compensation from her common-law partner for domestic services rendered to him and his two children. Although Mr. Beblow had provided, among other things, free room and board for Ms. Peter and her own four children throughout the time period in question, the Supreme Court of Canada determined that Ms. Peter was entitled to additional compensation. They gave her Mr. Beblow’s home, free and clear, for her contributions during the 12-year cohabitation, although really only for the 4 or 5 years before his two children had left the home. In coming to this conclusion, the court said:
Note that the domestic services referred to in the above Supreme Court of Canada cases include the very same services alluded to by the Alberta Court of Appeal in Doe. It is unfortunate that the Supreme Court of Canada declined to hear an appeal of Doe v Alberta, so that some clarity and consistency might be found in this area of the law. The state of the law in Alberta today is that, when a man lives in a relationship of some permanence with the mother of a biologically unrelated child, he acquires support obligations toward that child; but when a woman lives in a relationship of some permanence with the father of a biologically unrelated child, she acquires rights to his property. The Alberta Court of Appeal’s decision at least has the virtue of being consistent with a long line of family-law cases in Canada which interpret the supposed “mutuality of rights and obligations” arising from these relationships so as to presumptively assign all of the rights to the mothers and all of the obligations to the fathers. Dr. Grant Brown taught at the University of Lethbridge from 1990 until 1999. He obtained his LL.B. from the University of Alberta in 2002, and since then has practiced law in Alberta. http://www.lawtimesnews.com/index.php?option=com_content&task=blogsection&id=8&Itemid=65' Family
Law/Ontario Civil Cases/CHILD SUPPORT May 6, 2008 Law Times (CAN)--- Motion for order decreasing child support from $783 to $335 retroactive to June 1, 2007. Applicant and respondent had in 2004 entered into minutes of settlement in divorce proceedings for child support pursuant to Federal Child Support Guidelines (Can.), based on imputed annual income of $40,000. Applicant was unemployed at time. Applicant obtained employment then lost job at end of May 2007. Applicant paid little if any support between June 2007 and October 2007. No evidence of diligent job search by applicant. Applicant did some training as real estate broker but discontinued course. Child support varied to $570 per month commencing June 1, 2007 until earlier date of applicant obtaining full-time employment and September 1, 2008. Award based on imputed income pursuant to s. 19 of Guidelines and previous settlement between parties of $40,000 per year. Absence of evidence of diligent job search by applicant can lead to no other conclusion than that applicant was intentionally unemployed. Filippetto v. Timpano (Feb. 1, 2008, Ont.S.C.J., Kane J., File No. D-15,623-02) Order No. 008/043/135 (4 pp.). http://www.law.com/jsp/law/careercenter/lawArticleCareerCenter.jsp?id=1186045602509 By Brittney Pescatore, The National Law Journal August 3, 2007---As public interest in judges' professional performance grows, states' use of judicial performance evaluations has been on the rise. States are increasingly institutionalizing the evaluation process, passing statutes requiring the formation of a judicial evaluation commission. Kansas is the most recent to launch an official judicial performance evaluation program. A state commission was established in 2006. It will send out its first questionnaires to evaluators this month for judges on the 2008 ballot. In March of this year, a Minnesota commission chaired by former Gov. Al Quie released its report on ways to preserve an impartial judiciary. Known as the Quie Commission, the group recommends the adoption of a comprehensive performance evaluation. The proposed commission would comprise 30 members, the majority of whom are not lawyers, and would issue a data report detailing whether a judge meets established performance criteria. In his recent State of the Judiciary Address in January, Missouri Chief Justice Michael A. Wolff called for an attempt to "remedy the lack of information about judges" by looking at judicial evaluation systems in other states. Wolff's plan would enlist the help of the Missouri Bar to create an independent, nonpartisan program. Florida also explored the possibility of implementing a formal judicial evaluation system, but its commission recommended against doing so in June. Performance-evaluation programs measure criteria such as the professionalism of judges, how well they manage caseloads and the respect with which they treat people in the courtroom. The Kansas commission plans to survey a variety of people who interact with the judges, including attorneys, jurors, appellate judges and members of the court staff. The state will issue a voter guide to the public, including a recommendation on whether to retain judges in the upcoming election, said Malia Reddick, a member of the Kansas commission and director of research and programs at the American Judicature Society. The AJS and other legal reform groups are hailing performance evaluations as a way to hold judges accountable while respecting their independence. "It's the right way to provide judicial accountability," said Reddick, adding that initiatives such as J.A.I.L. 4 Judges in South Dakota, or Judicial Accountability Initiative Law, are the wrong direction. J.A.I.L. 4 Judges was a failed constitutional amendment on the ballot in South Dakota last year that would have curtailed judicial immunity and allowed judges to be prosecuted for their rulings. The group that sponsored the amendment is seeking to get it passed in other states. The Institute for the Advancement of the American Legal System (IAALS), based at the University of Denver, published a report in 2006 called "Shared Expectations: Judicial Accountability in Context," which recommended performance-evaluation programs as a responsible way to hold judges accountable. According to the report, 19 states now have systems, including Arizona, Colorado, New Mexico, Tennessee and Utah. "Accountability for the judiciary is a hot topic," said Rebecca Kourlis, executive director of the IAALS and a co-author of the report, "but the term 'accountable' is being held hostage by people who have political agendas." C.A. Overturns Denial
of Claim to Paternity of Dependent Child By STEVEN CISCHKE, Staff Writer, Metropolitan News-Enterprise Metropolitan News-Enterprise (Los Angeles, USA)---A man who claimed paternity of a young child immediately upon learning of the baby’s existence was entitled to assert presumed father status in dependency court, the Court of Appeal for this district has ruled. Div. One Justices Miriam A. Vogel, Robert M. Mallano and Frances Rothschild voted Monday to reverse Los Angeles Superior Court Judge S. Patricia Spear’s order terminating the parental rights of a man identified in the opinion only as Jesus H. The child in question is the fourth child of Gladys V, as the opinion called her. There was evidence before the court that Gladys V. was a drug addict whose three older children had been placed in foster care, and that she walked out of the hospital without the fourth child, about four hours after giving birth. The court called the child Baby V. Gladys V. told a social worker that she knew that the Department of Children and Family Services would take the child because they had taken her other three, and because she expected that Baby V. had tested positive for methamphetamines and amphetamines. Gladys V. refused to tell the hospital, social workers, and later the court, the identity of Baby V’s father. Requested Visitation Eight months later, according to the record, Jesus H. told social workers he was probably Baby V.’s father and had just been told about the boy by the mother. He asked to visit the child and requested a paternity test and family reunification services and said he was willing to comply with all of the court’s orders. The department denied all his requests, gave him a copy of the notice of an upcoming court hearing, and explained that the purpose of the hearing was to terminate his parental rights. The department did not inform the court he had come forward. Jesus H. appeared at the hearing represented by attorney Eric Wexler. When Wexler and the attorneys representing Baby V. and the department all agreed that a paternity test would be in child’s best interests, Spear declined to order the test, saying: “Why wouldn’t you just go forward today? If you terminate the parental rights, that’s the end of him. . . . I mean are you going to, like, move [the child] into this guy’s home when he’s in a preadoptive home? What are you trying to do by doing that?” Spear also said, “What if he’s the father? Then we’re going to offer him [reunification services]?” After the lawyers argued that the service by publication on Jesus H. was defective, Spear continued the hearing, saying: “Dad’s advised that the hearing is going over to November 28th. Court at that time will be terminating parental rights. The baby’s been with a family that wants to adopt him. They have a home study to adopt him. Given that this is child four on this case, I can’t find that it would be in the child’s best interest to even test to see if you are the father. I don’t think you are.” ‘`Difficult to Understand’ Vogel, writing for the Court of Appeal, said Spear’s comments were “difficult to understand because Jesus had nothing at all to do with Gladys’s other children (the record is clear that he is not their father). The court’s last comment — ‘I don’t think you are [the child’s father]’— is equally odd because there is nothing at all to suggest that Jesus is not the baby’s biological father.” Vogel concluded: “We can only assume that the court was confused and believed that Jesus was somehow the father of the mother’s other children, which he was not, and believed that Jesus did not care about Baby V. because he had not visited the child (when in fact Jesus had wanted to visit but was prevented from doing so by the Department).” The appellate court ordered that the case be remanded to a judge other than Spear. The court also ruled that if Jesus H. is the father, and if further findings show that he came forward immediately upon learning of the child’s existence and is not unfit, he is entitled to reunification services and visitation. Vogel said: “It bears noting that a more thoughtful approach to Jesus’s requests, whatever the outcome of the paternity test, could probably have saved the child, the prospective adoptive parents, and Jesus a lot of heartache, not to mention the better part of a year wasted before these proceedings are properly resolved.” Lisa A. DiGrazia, who represented Jesus H. on appeal, told the MetNews that she was pleased the court recognized her client’s rights. Spear said she could not comment on pending cases. The case is In re Baby Boy V., 06 S.O.S. 3276.
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