New York Divorce Law Blog : New York Divorce Lawyer & Attorney : Law Offices of David A. Gabay, PC : Serving New York City, Long Island, Suffolk County, Nassau County

A recent case from the New York State Appellate Division, First Department, highlights the conflict between trying to use creative alternative billing arrangements in divorce cases and the harsh reality of the current rules governing matrimonial fee agreements.

In Sheresky Aronson & Mayefsky v. Whitmore, decided on July 8, 2008, the Appellate Division ruled that Ms. Whitmore’s attorneys could not enforce a clause in her retainer agreement relating to a ‘premium fee.’   That clause stated:

We reserve the right to discuss with you at the conclusion of your matter your payment of a reasonable additional fee to us, in excess of the actual time and disbursements, for exceptional results achieved, time expended, responsiveness accorded, or complexity involved in your case. However, no such fee will be charged to you without your consent.

The complaint filed by Sheresky against its client was dismissed as a matter of law by the trial court, and the Appellate Division affirmed the decision. The Appellate Division held that the clause violated the plain language and specificity provisions of the New York rules governing fee agreements in matrimonial cases. The Court also found that Ms. Whitmore’s oral agreement to pay Sheresky a premium fee of $150,000.00 was not enforceable because of those same rules.

By the way, Sheresky was the firm who represented Peter Cook in his highly publicized divorce case against Christie Brinkley. 

I think the Court’s decision was correct under the rules, and I also think the rules are incredibly inhospitable to success or premium fees in matrimonial matters. In order for a premium or success fee to pass muster under the rules, the manner in which the fee is to be calculated must be spelled out in clear and plain language. That is nearly impossible in matrimonial practice, because of the inherently unpredictable and volatile nature of the work. 

So, while premium fees might be welcome and appropriate in business or corporate law transactional matters or even certain types of civil litigation, they appear to be unwelcome in New York matrimonial practice.

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Tricia Walsh-Smith has lost her divorce case after the Court found that her husband, Philip Smith, established that Ms. Walsh-Smith engaged in conduct which constitutes cruel and inhuman treatment under New York Law.   A good portion of the Court’s opinion focused on the video Ms. Walsh-Smith posted on You Tube in April of 2008. The video and its effect on Ms. Walsh-Smith’s divorce case was the subject of two posts by Daniel C. Clement in his New York Divorce Report.

Despite the publicity and curiosity surrounding the video and Ms. Walsh-Smith’s unusual conduct in the case, the Court’s decision may in my opinion be ripe for a legal challenge on appeal.

My reading of the opinion suggests that the Court granted Mr. Smith his divorce in part, perhaps a large part, based on the You Tube video. However, the video was posted in April of 2008, which is well after the divorce action was commenced in October of 2007. 

The Court cannot rely on post-commencement actions by either party in determining whether grounds for divorce existed as of the commencement of the action. Either the plaintiff did or did not have grounds for divorce on the day she filed her action or she did not. She cannot ‘acquire’ grounds after the commencement of the case.

So, what will happen if Ms. Walsh-Smith appeals the Court’s ruling? Stay tuned, and we will see.

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On July 22, 2008, New York State Governor David A. Patterson signed into law a bill permitting the Family Court to issue orders of protection to persons in ‘intimate relationships.’

Prior to the new legislation, the Family Court had jurisdiction to grant orders of protection only to victims of domestic violence and other family offenses who were:

1.         Married to or divorced from the alleged perpetrator.

2.         Related to the alleged perpetrator by blood or marriage.

3.         Had a child in common with the alleged perpetrator.

Under the new law, the Family Court may now issue an order of protection in favor of a person who is in an ‘intimate relationship.’ The law defines an ‘intimate relationship’ as:

Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the Court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”

The new law is intended to encompass dating relationships and couples who live together. Both heterosexual and homosexual relationships are included in the law.  

This increased access to the Family Court for victims of domestic violence brings New York law into line with that of the other 49 states, all of which currently have similar provisions for orders of protection.

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