The eternal divorce case | Matrimonial Matters

Sara Stout Ashcraft

Every lawyer who practices matrimonial law has had a case (and maybe several) in which it seems that they are living a Kafkaesque novel. However, there is a case in New York County Supreme Court that is remarkable. That case is Z.U. v F.U., 77 Misc. 3d, 1234(A) (2023).

The parties have been litigating the divorce and subsequent post-judgment actions since the plaintiff filed for divorce in 2001. The court addressing the current action went through the litany of this case:

“The parties, married in 1982, have three children. The husband commenced this divorce action in February 2001. On November 11, 2002, the parties, each represented by counsel, entered into a 55-page stipulation of settlement to be incorporated but not merged in any subsequent divorce decree. The stipulation provided that upon execution of the agreement, or as soon thereafter as practical, the parties would execute all documents necessary to transfer title of the condominiums held by them as tenants by the entirety, one to each of the individually, subject to existing mortgages, with the wife to receive the condominium unit with the larger value. … Until the division of the apartments into separate units, with each party responsible for all costs and expenses related to his/her unit. Until the division of the apartments into separate units, the wife was entitled to exclusive use and occupancy and the husband, as part of his maintenance and support obligations would ‘directly pay [certain] expenses’ related to the apartments. … [T]he husband agreed to pay $3,000 per month for child support … [and] certain ‘Child Related Activities’ ‘provided he consents to same, such consent to be dependent upon [his] financial circumstances.” [quoting ,1st Dept, 40 AD3d 202-204, 2007]. It should be noted that the husband’s income at the time was $120,000 a year.

In reality, almost nothing happened the way it was set forth in the parties’ stipulation and divorce decree, and the stream of litigation continued — usually with actions brought by the wife:

• 2003 (prior to entry of the divorce decree) — Wife brings a support enforcement action against husband for contempt of court for failing to pay the condominium charges. Husband, then pro se, was found in contempt and the wife was awarded money judgments for arrears in child support, spousal support and utility arrears.
• 2004 — Per the agreement and divorce decree, the wife was to receive $3,100 per month, which at some point during the extensive litigation was raised to $3,765.90 per month. Also, husband was to pay for the wife’s health care insurance until she was able to receive Medicare.
• 2004 — a “modification agreement” was supposedly signed by the parties. In its 2007 decision, the 1st Department held that it “was invalid because it was never judicially authorized.” A lower-court judge found that while the modification agreement was invalid as a matrimonial agreement, it may be enforceable as simple contract. So in 2008, a plenary action was filed by the wife to enforce the contract. However, the judge hearing it found that it wasn’t enforceable in any case because the agreement had only been signed by the wife years after it was drafted, it lacked consideration, and the husband had not signed “knowingly or intelligently or with the advice of counsel.”

Despite the fact that the husband had paid out funds under the overturned modification agreement, “there is no indication that [the wife] ever returned monies paid thereunder, or that she ever transferred one of the condo units to the [husband]. For that matter, there is no answer as to what happened to the monies [wife] obtained from improperly refinancing the units, or as to the distribution of proceeds from Pennsylvania property [which was to be sold with each party getting half of the proceeds].”

There is no question that the defendant wife was out to get what she wanted, not matter what she had agreed to or what a court ordered. In the 2023 decision, Justice Ariel D. Chesler stated:

“Defendant’s lack of respect for this Court is particularly stunning. Defendant’s inappropriate behavior is showcased through her interactions with the Court. Predating this current motion and this jurist being assigned to the case, Defendant has continuously and repeated undermined the Court proving to make the resolution of this matter difficult.”

The presiding Justice Matthew F. Cooper in a 2014 decision stated:

“Rather than allow a judge to be a decision maker who sits above the fray, Defendant has worked tirelessly to undermine the court’s authority and destroy any sense of decorum in the courtroom. In addition to regularly speaking derogatorily of the court and its staff, and going on long diatribes where she turns to address the audience in the courtroom, defendant has threatened to bring guns to court and hurt or kill the plaintiff.”

The decision rendered by Justice Chelser:

• Directed a money judgment of $45,190.80 be entered in favor of the defendant against the plaintiff, with plaintiff’s consent, for unpaid spousal support from January 2021 to December 2021.
• Granted plaintiff’s application for a downward modification of spousal support.
• Directed spousal support of $728.21 per month be paid by the plaintiff to the defendant.
• Vacated the directive requiring the plaintiff to provide his redated tax returns to the court for review.

Justice Cooper, presiding over this never-ending case in 2014, stated that “a good part of the blame for why this case’s interminability must be attributed to the penchant the parties have for side-deals, unwritten agreements and opaque private arrangements,” and most matrimonial lawyers would agree.

Sara Stout Ashcraft is a partner in Ashcraft Franklin & Young LLP. She concentrates her practice in the areas of matrimonial and family law.