Jennifer D. v. Maurice D.
| Decision Date | 29 October 2021 |
| Citation | 2021 NY Slip Op 21323 |
| Parties | Jennifer D., Plaintiff, v. Maurice D., Defendant. |
| Court | New York Supreme Court |
Coffins & Lusthaus, P.C. By: Maria Coffinas, Esq. Attorney for Plaintiff
Walter Anderocci, Esq. Attorney for Defendant
Rabin Schumann and Partners LLP By: Bonnie Rabin, Esq. Attorney for Non-Party (Mr. S.M.) 11 Times Square, 10th Floor
Wachtel Missry LLP Jeffrey T. Strauss, Esq. Attorneys for Non-Party (Mr. J.D.)
The parties to this divorce action have been engaged in protracted litigation on the underlying divorce action since plaintiff-wife commenced it on September 14, 2015. The parties have five (5) children of the marriage of which currently, there are three (3) unemancipated children ages 19, 16 and 13. The parties entered into a Stipulation of Custody and Parenting Time dated September 28, 2018 which was allocuted on the record on September 28, 2018. An Interlocutory Judgment on Custody and Parenting Time was signed by the Court on December 21, 2018. The limited remaining issues before this Court are financial and include final awards of child support, maintenance and counsel fees. [1]
This case has an extensive litigation history which is illustrative of how the parties find themselves in the current litigation quagmire they have created by failure to comply with court ordered discovery schedules and compliance conference orders and their unilateral decision - without Court approval - not to comply with court-ordered depositions. The discovery mayhem presented lays at the feet of these parties.
There have been thirty (30) filed applications in this action plaintiff having filed fifteen (15) and defendant having filed fourteen (13); two (2) were filed by non-parties seeking to quash subpoenas issued during trial. This Court has issued extensive written decisions dated March 6, 2017; June 14, 2017; November 30, 2017; May 23, 2018; and March 20, 2019: this decision must be read in conjunction with the procedural history thoroughly detailed in those decisions. There has been ancillary litigation in Delaware between plaintiff and the defendant's family.
There has been voluminous document production together with cross-allegations from the commencement of this action that each side had not produced demanded documents. Accompanying those applications, many which were filed while others remained pending and others that requested duplicative relief, the parties annexed multiple bank boxes worth of supporting financial documentation seeking the Court to comb through and analyze the financials. The parties have hired attorneys, fired attorneys only to find themselves return to re-retain the same attorneys they started with.
Plaintiff has been forced to seek Court intervention to obtain pendente lite support, interim counsel fees and to seek enforcement by contempt applications for those obligations, including the payment of court ordered counsel fees so that her prior counsel would release her case file to her current attorney. The Court notes that in that pendente lite decision defendant was ordered to pay plaintiff's then-counsel $100, 000 in counsel fees but that he failed to do so and the Court issued a judgment dated May 22, 2017 in that counsel's favor against defendant with statutory interest. [2]
Pendente Lite Decision and Order dated March 6, 2017
As fully detailed in this Court's written pendente lite decision dated March 6, 2017, during this litigation, the parties have proffered vastly divergent representations as to the defendant's income: plaintiff maintains he earned in excess of $800, 000.00 annually primarily from working for family-owned businesses during the marriage and enjoyed a lavish lifestyle commensurate with that level of income while defendant has maintained that he earned no income and that he has always had to support his family through borrowed funds loaned from his family. [3] Defendant has maintained during this litigation that he travels and works on behalf of his father and brother for family business, without income, in an effort to one day procure employment all while relying on the "generosity" of his father and brother to fund hundreds of dollars of expenses annually. The Court appointed KLG as the court-appointed neutral business evaluators by order dated June 1, 2016, in part based on discovery indicating that defendant sold his interest in a multi-million-dollar company for $1.00 contemporaneously with the marital discord and commencement of this divorce action. Continuously underlying the litigation are allegations of corporate "alter egos" and shell corporations for multi-million dollar businesses with plaintiff alleging that defendant and his family are, in effect, conspiring to avoid scrutiny of their business interests in an effort to obfuscate the defendant's actual income for purposes of calculating his support obligations and defendant's contention that he is unemployed and subsisting on "generosity" of his father and brother. Together with defendant's alleging plaintiff has dissipated and hidden her income and is living based on monies from others.
Despite the extensive cross-allegations of financial shenanigans and subterfuge by both parties, the parties inexplicably ignored multiple orders of the Court setting deposition dates.
The so-ordered preliminary conference order dated April 19, 2016 specified that depositions of the parties and any non-parties would take place on June 13, 2016; June 14, 2016; June 22, 2016; June 23, 2016; and July 30, 2016. These deposition dates were selected, on consent, of the parties. The Court did not learn until after trial had commenced that the parties, without the knowledge or consent of the Court, failed to conduct the court-ordered depositions of the parties or any non-parties during the discovery portion of this case.
A Note of Issue was filed on December 16, 2019. At this time, there have been twenty-nine (29) dates set aside for trial on the financial issues between the parties. The Court initially adjourned scheduled trial dates, at counsel's request, so that the parties could produce itemized discovery requests conformed to previously produced discovery as an effort for the parties to rectify the discovery quagmire they had created by not complying with discovery procedure; however that attempt was unproductive. As such, the Court was left with no option but to use additional scheduled trial dates to supervise, document by document, the parties' demands over the course of several trial dates.
The Court notes that, as early as the March 6, 2017 pendente lite decision, this Court found that "there has been a significant delay that have resulted from the inability between both sides to cooperate with one another in exchanging discovery which has resulted in a plethora of dueling and duplicative orders to show cause." The Court further found that "[i]n the case at bar, the Court finds disturbing the significant delay that has resulted from the defendant's non-compliance with plaintiff's discovery requests, which have thereby interfered with the Court's ability to advance this matter to trial and for the neutral appraisal to move forward."
There have already been several hundred proposed exhibits uploaded into the virtual evidence folder for this trial. Due to the parties' non-compliance with the court-ordered depositions of the parties and any non-parties prior to filing the Note of Issue, the Court has been forced, in effect, to supervise a series of "depositions on the witness stand" which has resulted both in an unnecessary drain on judicial resources during a global pandemic and has delayed the final resolution of this litigation. The litigation posturing that is taking place now is directly a result of the parties' failure to comply with court-ordered depositions during the discovery process.
Motion #26: Plaintiff's Contempt Application Against Defendant [KLG fees]
On July 26, 2021, the Court signed plaintiff's order to show cause [NYSCEF #420] seeking an order of contempt against defendant-husband. That application sought the following relief:
Defendant filed opposition [NYSCEF #465-470] dated August 12, 2021 to that application. Plaintiff filed reply [NYSCEF #497-515] dated August 16, 2021. The Court heard oral argument on motion sequence #26 on August 24, 2021 [NYSCEF #522].
The Court issued a written order dated June 1, 2016 appointing KLG as the court-appointed neutral evaluator to "appraise the plaintiff's business and to conduct a forensic evaluation as to plaintiff's and defendant's income and sources...
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