Decisions of Interest

High Insurance Quote No Excuse for Bypassing Its Purchase

Finding a man in contempt for failing to obtain life insurance in accordance with the terms of his divorce, Nassau County Supreme Court Justice Robert A. Bruno ordered him to purchase the insurance coverage immediately or face six months in jail. DA v. BA, NYLJ 1202499023048, at *1 (Sup., NA, Decided June 10, 2011) (Bruno, J.).

The man, who earns $500,000 per year and has a net worth of at least $1.3 million, admitted that he was required to purchase the insurance policy, but claimed that he had been unable to do so because past health problems ' hepatitis, open-heart surgery and cocaine use ' had made the purchase price of a policy prohibitively high. The best rate he could find was $100,000 per year. The court found, however, that soon after he was served with the contempt application the man had used more than $500,000 in cash to purchase a $750,000 home for a woman with whom he had fathered a child. Justice Bruno was unsympathetic with the man's reasons for not buying the insurance, noting that he “decided not to [buy the life insurance] because it would cost $100,000 per year, which is a situation [the man] created when he decided to use drugs.” The man was therefore ordered to buy the insurance and appear before the judge with proof of its purchase.

Motion Granted: Lawyer Removed from Disruptive Client's Case

An attorney was allowed to withdraw from a client's case when the client failed to follow the terms of the retainer agreement, which were modified mid-litigation due to the client's disruptive behavior during the matter. M.P. v. A.P., Index 04-203531, NYLJ 1202497352102, at *1 (Sup. NA, Decided June 13, 2011) (Falanga, J.).

The attorney had been handling the husband's divorce representation since 2007. He had asked once before to be relieved as counsel because his client was engaging in inappropriate outbursts in court and was sending multiple communications to the judge. The issue was smoothed over in March 2010 when the attorney and his client entered into an amended retainer agreement providing that the client would stop contacting the judges, would behave in court, and would receive mental health therapy, to include the client's taking his prescribed medications. Subsequently, because of the extent of the husband's out-of-court communications with one of the judges, that judge was forced to recuse himself after having handled the case for 26 months and a total of 65 days of trial.

In this second motion to be removed, the attorney claimed his client had breached the amended agreement repeatedly and had became so mentally disabled that he could no longer assist the lawyer in the preparation of the case. He also noted that the client had not paid him more than $20,000 that was owed for his services. The wife opposed the attorney's motion, arguing that the husband was not in fact mentally disabled, but was manipulating the court in order to delay the conclusion of the divorce matter. Also opposing was the husband who, in what the court described as “an angry and rambling response,” said he did not need a guardian to help him continue with his case. He argued that his attorney should be required to continue to serve as his counsel because of the lawyer's familiarity with the litigation.

In his decision relieving the attorney of his duties, Justice Anthony J. Falanga wrote, “Whether the husband is presently in compliance with portions of the amended retainer or not, the court is loathe to compel an attorney to represent a litigant who does not take counsel's advice and who is in violation of other key provisions of the amended retainer, the exact behavior which was the subject of a prior motion to the court.” The court also noted that the non-payment of fees in accordance with the retainer agreement and the breakdown of the attorney/client relationship is a basis for relieving counsel (see Musachio v. Musachio, 80 AD3d 738 (2nd Dept. 1/25/11). However, Justice Falanga declined to appoint a guardian ad litem for the client, because the man did not appear to be a danger to himself or others, had returned to work and had started participating in therapy in response to this motion. The husband was admonished, however, to discontinue his previous behavior or risk being held in contempt and facing sanctions.

Financial Obligations Not Terminated By Consent to Step-Parent Adoption Alone

A man who agreed to permit his child to be adopted by the mother's husband remains liable for child support, even eight years later, because the adoption petition was withdrawn before the adoption was finalized. Solly M. v. Audrey S., 2584/11, NYLJ 1202498157831, at *1 (Sup., QU, Decided June 14, 2011) (Siegel, J.).

The parties had a child out of wedlock. Later, the father agreed to give up his parental rights so that the mother's husband could adopt the child. The biological father appeared in court and signed a judicial consent form providing that “the consent becomes irrevocable when executed.” However, the proposed adoptive father later withdrew his application, and the adoption never went through. Several years later, the mother sought child support from the biological father. The latter then brought this action seeking a declaration that the signed judicial consent was an equivalent to adoption for the purposes of extinguishing his obligation to pay child support.

The court observed that, although in many states an order terminating parental rights severs the parent-child relationship, New York has no statutes on the books to that effect. Quoting Robinson v. Aspinall, 238 AD2d 255 (1st Dept. 1997), the court also noted that the mother's eight-year delay in attempting to hold the biological father responsible for the child was immaterial as “a parent should not be able to avoid his or her duty to support
the child by claiming that the other parent is guilty of laches.” As such, and because the question in these cases comes down to the best interests of the child, it would be against public policy to permit the biological father to avoid his financial obligations to the child. Thus, the court found the consent to adopt failed to terminate the biological father's parental rights and obligations, and denied his motion.

High Insurance Quote No Excuse for Bypassing Its Purchase

Finding a man in contempt for failing to obtain life insurance in accordance with the terms of his divorce, Nassau County Supreme Court Justice Robert A. Bruno ordered him to purchase the insurance coverage immediately or face six months in jail. DA v. BA, NYLJ 1202499023048, at *1 (Sup., NA, Decided June 10, 2011) (Bruno, J.).

The man, who earns $500,000 per year and has a net worth of at least $1.3 million, admitted that he was required to purchase the insurance policy, but claimed that he had been unable to do so because past health problems ' hepatitis, open-heart surgery and cocaine use ' had made the purchase price of a policy prohibitively high. The best rate he could find was $100,000 per year. The court found, however, that soon after he was served with the contempt application the man had used more than $500,000 in cash to purchase a $750,000 home for a woman with whom he had fathered a child. Justice Bruno was unsympathetic with the man's reasons for not buying the insurance, noting that he “decided not to [buy the life insurance] because it would cost $100,000 per year, which is a situation [the man] created when he decided to use drugs.” The man was therefore ordered to buy the insurance and appear before the judge with proof of its purchase.

Motion Granted: Lawyer Removed from Disruptive Client's Case

An attorney was allowed to withdraw from a client's case when the client failed to follow the terms of the retainer agreement, which were modified mid-litigation due to the client's disruptive behavior during the matter. M.P. v. A.P., Index 04-203531, NYLJ 1202497352102, at *1 (Sup. NA, Decided June 13, 2011) (Falanga, J.).

The attorney had been handling the husband's divorce representation since 2007. He had asked once before to be relieved as counsel because his client was engaging in inappropriate outbursts in court and was sending multiple communications to the judge. The issue was smoothed over in March 2010 when the attorney and his client entered into an amended retainer agreement providing that the client would stop contacting the judges, would behave in court, and would receive mental health therapy, to include the client's taking his prescribed medications. Subsequently, because of the extent of the husband's out-of-court communications with one of the judges, that judge was forced to recuse himself after having handled the case for 26 months and a total of 65 days of trial.

In this second motion to be removed, the attorney claimed his client had breached the amended agreement repeatedly and had became so mentally disabled that he could no longer assist the lawyer in the preparation of the case. He also noted that the client had not paid him more than $20,000 that was owed for his services. The wife opposed the attorney's motion, arguing that the husband was not in fact mentally disabled, but was manipulating the court in order to delay the conclusion of the divorce matter. Also opposing was the husband who, in what the court described as “an angry and rambling response,” said he did not need a guardian to help him continue with his case. He argued that his attorney should be required to continue to serve as his counsel because of the lawyer's familiarity with the litigation.

In his decision relieving the attorney of his duties, Justice Anthony J. Falanga wrote, “Whether the husband is presently in compliance with portions of the amended retainer or not, the court is loathe to compel an attorney to represent a litigant who does not take counsel's advice and who is in violation of other key provisions of the amended retainer, the exact behavior which was the subject of a prior motion to the court.” The court also noted that the non-payment of fees in accordance with the retainer agreement and the breakdown of the attorney/client relationship is a basis for relieving counsel ( see Musachio v. Musachio , 80 AD3d 738 (2nd Dept. 1/25/11). However, Justice Falanga declined to appoint a guardian ad litem for the client, because the man did not appear to be a danger to himself or others, had returned to work and had started participating in therapy in response to this motion. The husband was admonished, however, to discontinue his previous behavior or risk being held in contempt and facing sanctions.

Financial Obligations Not Terminated By Consent to Step-Parent Adoption Alone

A man who agreed to permit his child to be adopted by the mother's husband remains liable for child support, even eight years later, because the adoption petition was withdrawn before the adoption was finalized. Solly M. v. Audrey S., 2584/11, NYLJ 1202498157831, at *1 (Sup., QU, Decided June 14, 2011) (Siegel, J.).

The parties had a child out of wedlock. Later, the father agreed to give up his parental rights so that the mother's husband could adopt the child. The biological father appeared in court and signed a judicial consent form providing that “the consent becomes irrevocable when executed.” However, the proposed adoptive father later withdrew his application, and the adoption never went through. Several years later, the mother sought child support from the biological father. The latter then brought this action seeking a declaration that the signed judicial consent was an equivalent to adoption for the purposes of extinguishing his obligation to pay child support.

The court observed that, although in many states an order terminating parental rights severs the parent-child relationship, New York has no statutes on the books to that effect. Quoting Robinson v. Aspinall , 238 AD2d 255 (1st Dept. 1997), the court also noted that the mother's eight-year delay in attempting to hold the biological father responsible for the child was immaterial as “a parent should not be able to avoid his or her duty to support
the child by claiming that the other parent is guilty of laches.” As such, and because the question in these cases comes down to the best interests of the child, it would be against public policy to permit the biological father to avoid his financial obligations to the child. Thus, the court found the consent to adopt failed to terminate the biological father's parental rights and obligations, and denied his motion.