Decisions of Interest

Contrary to the husband's contention, the Second Department found that the Supreme Court properly exercised its discretion in appointing an independent accountant to audit the financial records of the nonparty company because the husband was the president of Lexington Glass. In addition, the record indicated that the husband had been “less than forthright regarding his income and finances, despite his statutorily-mandated duty to disclose such information.”

Husband Fails to Prove Oral Contract Modified Stipulation

The trial court properly denied a defendant husband's motion to reform the couple's stipulation of settlement, as he had not met his burden of proving through his actions taken subsequent to the alleged reformation that the written agreement had been orally modified. Gomes v. Gomes, (Index No. 30544/96) 2003 N.Y. App. Div. LEXIS 2309 (Santucci, J.P.; Friedmann, Luciano and Rivera, J.J.).

In 1996, the parties entered into a stipulation of settlement that was incorporated but not merged into the judgment of divorce. The stipulation provided, inter alia, that the defendant would pay the plaintiff maintenance in the sum of $1000 per week. It also provided that no modification of the stipulation could be made except by a properly signed writing.

Subsequently, the plaintiff moved to hold the defendant in contempt for failing to comply with the maintenance provision of the stipulation. The Supreme Court granted the plaintiff's motion to the extent of directing entry of a judgment in her favor and against the defendant for the claimed arrears. The defendant appealed.

The Second Department found that the Supreme Court properly awarded the plaintiff the claimed arrears in maintenance. The clause in the stipulation expressly prohibiting its modification or waiver except by a properly-signed writing was sufficient to establish prima facie that the plaintiff was entitled to summary judgment (see Gower v Gower, 240 A.D.2d 632, 659 N.Y.S.2d 292; Jacobson v Jacobson, 231 A.D.2d 494, 647 N.Y.S.2d 227). The burden was therefore shifted to the defendant to show the existence of a triable issue of fact. The defendant failed to meet that burden by demonstrating that his performance of an alleged oral agreement, modifying the written stipulation, was unequivocally referable to such agreement. Indeed, the court noted that the record here indicated other motivations for the defendant's conduct.

Value Date Set At Commencement of Discontinued Divorce

n this action, the marital asset valuation date was deemed to be the date of the commencement of a prior divorce action that was discontinued, as no proof of resumption of marital relations was offered. Sahni v. Sahni, N.Y.L.J. 3/17/03, (Sup. Ct., Queens Cty.) (IA Part JHO, Gartenstein, JHO.)

Plaintiff husband brought a divorce action on May 17, 2000. A prior divorce action, commenced by defendant on Feb. 18, 1993, had been discontinued.

Mrs. Sahni testified in the present action that at no time was her husband out of the home either prior or subsequent to the 1993 divorce action. She further testified that she and her husband never resumed marital relations and that she slept in the marital bedroom while her husband slept in his son's room.

Mrs. Sahni was present in the courtroom when her husband testified that he repeatedly demanded marital relations, that she unjustifiably refused, and that both were fully capable of having conjugal relations. Despite claiming that the parties mutually consented not to resume marital relations after 1993, defendant did not contest divorce awarded on that ground.

Pursuant to Domestic Relations Law ' 236B (4)(b), the court set Feb. 18, 1993 as the appropriate date for the valuation of marital assets. Citing Lambda v. Lambda, 266 AD2d 515, Gonzalez v. Gonzalez, 240 AD2d 630 and Rudansky v. Rudansky, 637 N.Y.S.2d 97, the court noted that in the Second Department, the date of the commencement of a prior matrimonial action must be set as the valuation date unless the party seeking a later date proves that a bona fide reconciliation took place and that the parties continued to receive the benefits of the marital relationship. The parties' failure to resume marital relations was a critical factor in the court's determination that no bona fide reconciliation had taken place.

Court Will Not Disqualify Law Firm

The Supreme Court, Nassau County, denied a wife's motion to disqualify her husband's attorneys, finding no conflict or appearance thereof in their representation of him in this divorce action. Gannon v. Recca, N.Y.L.J. 3/17/03 (Sup. Ct., Nassau Cty.) (Lamarca, J.). In her divorce action, plaintiff wife sought to disqualify defendant's law firm based on the principal's prior representation of the parties in joint business ventures and the purchase of their home. She intended to call the principal as a witness, claiming that the principal had first-hand knowledge of abuse that she suffered during the marriage.

Defendant's lawyers stated that plaintiff's statement that the principal had first-hand knowledge proving plaintiff's ground for divorce was an “outright falsehood” and that anything that defendant may have told the principal was protected by the attorney-client privilege. The court denied disqualification, ruling that the parties' representation by a partner of defendant's law firm in the purchase of the marital residence did not warrant disqualification. The court additionally determined that none of plaintiff wife's assertions raised a conflict or appearance of impropriety sufficient to disqualify defendant husband's law firm.

Court Properly Ordered Audit of Finances

The Second Department held that the Supreme Court, Rockland County, properly ordered an audit of the defendant husband's family's corporation, as he had not been forthcoming with his financial information and his finances were entwined with the corporation's. Pechman v. Pechman , 2003 N.Y. App. Div. LEXIS 2327, (Feuerstein, JP, Friedmann, Schmidt and Mastro, JJ).

The defendant husband appealed an order granting plaintiff wife's motion to appoint an independent accountant to audit the financial records of nonparty Lexington Glass Company Inc., and to evaluate defendant's income. The order was based on the Supreme Court's finding that the husband was half owner of a closely held family glass business for the 3 years previous to the filing of the divorce. One month after the action was filed, however, the company's accountant had been instructed to amend the previous 3 years' tax returns to reflect that the husband's father was the sole owner of the company.

Contrary to the husband's contention, the Second Department found that the Supreme Court properly exercised its discretion in appointing an independent accountant to audit the financial records of the nonparty company because the husband was the president of Lexington Glass. In addition, the record indicated that the husband had been “less than forthright regarding his income and finances, despite his statutorily-mandated duty to disclose such information.”

Husband Fails to Prove Oral Contract Modified Stipulation

The trial court properly denied a defendant husband's motion to reform the couple's stipulation of settlement, as he had not met his burden of proving through his actions taken subsequent to the alleged reformation that the written agreement had been orally modified. Gomes v. Gomes, (Index No. 30544/96) 2003 N.Y. App. Div. LEXIS 2309 (Santucci, J.P.; Friedmann, Luciano and Rivera, J.J.).

In 1996, the parties entered into a stipulation of settlement that was incorporated but not merged into the judgment of divorce. The stipulation provided, inter alia, that the defendant would pay the plaintiff maintenance in the sum of $1000 per week. It also provided that no modification of the stipulation could be made except by a properly signed writing.

Subsequently, the plaintiff moved to hold the defendant in contempt for failing to comply with the maintenance provision of the stipulation. The Supreme Court granted the plaintiff's motion to the extent of directing entry of a judgment in her favor and against the defendant for the claimed arrears. The defendant appealed.

The Second Department found that the Supreme Court properly awarded the plaintiff the claimed arrears in maintenance. The clause in the stipulation expressly prohibiting its modification or waiver except by a properly-signed writing was sufficient to establish prima facie that the plaintiff was entitled to summary judgment (see Gower v Gower, 240 A.D.2d 632, 659 N.Y.S.2d 292; Jacobson v Jacobson, 231 A.D.2d 494, 647 N.Y.S.2d 227). The burden was therefore shifted to the defendant to show the existence of a triable issue of fact. The defendant failed to meet that burden by demonstrating that his performance of an alleged oral agreement, modifying the written stipulation, was unequivocally referable to such agreement. Indeed, the court noted that the record here indicated other motivations for the defendant's conduct.

Value Date Set At Commencement of Discontinued Divorce

n this action, the marital asset valuation date was deemed to be the date of the commencement of a prior divorce action that was discontinued, as no proof of resumption of marital relations was offered. Sahni v. Sahni, N.Y.L.J. 3/17/03, (Sup. Ct., Queens Cty.) (IA Part JHO, Gartenstein, JHO.)

Plaintiff husband brought a divorce action on May 17, 2000. A prior divorce action, commenced by defendant on Feb. 18, 1993, had been discontinued.

Mrs. Sahni testified in the present action that at no time was her husband out of the home either prior or subsequent to the 1993 divorce action. She further testified that she and her husband never resumed marital relations and that she slept in the marital bedroom while her husband slept in his son's room.

Mrs. Sahni was present in the courtroom when her husband testified that he repeatedly demanded marital relations, that she unjustifiably refused, and that both were fully capable of having conjugal relations. Despite claiming that the parties mutually consented not to resume marital relations after 1993, defendant did not contest divorce awarded on that ground.

Pursuant to Domestic Relations Law ' 236B (4)(b), the court set Feb. 18, 1993 as the appropriate date for the valuation of marital assets. Citing Lambda v. Lambda , 266 AD2d 515, Gonzalez v. Gonzalez, 240 AD2d 630 and Rudansky v. Rudansky , 637 N.Y.S.2d 97, the court noted that in the Second Department, the date of the commencement of a prior matrimonial action must be set as the valuation date unless the party seeking a later date proves that a bona fide reconciliation took place and that the parties continued to receive the benefits of the marital relationship. The parties' failure to resume marital relations was a critical factor in the court's determination that no bona fide reconciliation had taken place.

Court Will Not Disqualify Law Firm

The Supreme Court, Nassau County, denied a wife's motion to disqualify her husband's attorneys, finding no conflict or appearance thereof in their representation of him in this divorce action. Gannon v. Recca, N.Y.L.J. 3/17/03 (Sup. Ct., Nassau Cty.) (Lamarca, J.). In her divorce action, plaintiff wife sought to disqualify defendant's law firm based on the principal's prior representation of the parties in joint business ventures and the purchase of their home. She intended to call the principal as a witness, claiming that the principal had first-hand knowledge of abuse that she suffered during the marriage.

Defendant's lawyers stated that plaintiff's statement that the principal had first-hand knowledge proving plaintiff's ground for divorce was an “outright falsehood” and that anything that defendant may have told the principal was protected by the attorney-client privilege. The court denied disqualification, ruling that the parties' representation by a partner of defendant's law firm in the purchase of the marital residence did not warrant disqualification. The court additionally determined that none of plaintiff wife's assertions raised a conflict or appearance of impropriety sufficient to disqualify defendant husband's law firm.