Have you signed an “Engagement Letter” or “Retainer Agreement” with a lawyer? These are the names for attorney fee contracts. Do you know that certain provisions in a fee contract with your attorney may not be legally enforceable in a court of law for being unfair to you, the client? For example, in New York, if the lawyer’s fee contract contains a provision that entitles the lawyer to recover attorney fees to collect a payment the client allegedly owes for services, but does not contain a reciprocal provision for the client should the client prevail in a fee dispute against the lawyer, then the lawyer will not be entitled to attorney fees. That’s what the law says. In other words, if only the attorney is entitled to recover attorney fees under the contract, then the attorney fees will not be allowable, according to the matrimonial fees collection case of Reisman, Peirez, & Reisman v. Gazzara, 15 Misc. 3d 1113(A), 839 N.Y.S.2d 436 (Sup. Ct., Nassau Co. 2007). This case involved a fee dispute between a divorce client and the client’s former divorce attorneys. Even when the fee dispute arises out of a non-divorce matter, however, the policy of the courts is well established to forbid such one sided retainer provisions, through the precedent-setting decision of Ween v. Dow, 35 A.D.3d 58, 822 N.Y.S.2d 257 (1st Dept. 2006). 

I am looking forward to May 3rd when I will be presenting the topic “Family Law and Legal Malpractice” at the National Legal and Medical Malpractice Conference sponsored by THE AMERICAN BOARD OF PROFESSIONAL LIABILITY ATTORNEYS. This organization provides board-certification for attorneys who specialize in medical malpractice and legal malpractice.

The conference is at PARK LANE HOTEL in New York City. See https://www.abpla.org for more information.

One area of legal malpractice in divorce that seems to occur too often is when a lawyer fails to investigate and/or protect retirement benefits to which their clients may be entitled. I have seen this type of malpractice time and time again.

This situation is particularly troubling for women who seek to leave violent relationships, according to the national Pension Rights Center, because without securing their financial rights, these women may have to stay financially dependent on their abusers. In fact, financial dependence is one of the top reasons why women don’t leave abusive relationships, as Pension Rights Center states on its website: “Ensuring that women can access retirement benefits after divorce may help provide women the freedom they need to leave a violent relationship.”

The story reported by Lawyers Mutual Liability Insurance Co., in North Carolina, is typical of what I see in my practice:  “An attorney representing the wife had a duty to protect the wife’s interest in the pension plan by filing a QDRO and by notifying the husband’s employer of the restriction with respect to the survivor beneficiary status.”

[ “QDRO” is the term for domestic relations order signed by a judge that have been accepted by a retirement plan sponsored by a private employer.]

The article continued: “Unfortunately, the wife’s attorney did nothing to protect her client’s interests. As a result the husband was free to change the beneficiary of his retirement income to his new wife’s name, which he did immediately upon remarriage. He died shortly after his remarriage and retirement, and the first wife lost all rights to the benefits she had bargained for through her attorney. The wife’s attorney was on the hook for her client’s lost benefits.”

The take-away from the example above is that divorcing women need to take a pro-active stance with their attorneys to make sure their pension rights are protected during the divorce. That might not be so easy, however. Creating proper QDROs can be very complicated. For that reason, I rely on an outside firm to do the work: Lexington Pension Consultants, in New York — a company that prepares Qualified Domestic Relations Orders (QDROs) and Pension Valuations. For more information here is the website:https://www.lexpen.com/qdros

If you have had a problem with obtaining your pension rights in divorce, I’d like to hear your story.

WHEN A PARENT ALLEGING DOMESTIC VIOLENCE FLEES WITH THE CHILD OVER STATE-LINES AND THE OTHER PARENT ALLEGES “PARENTAL KIDNAPPING” — WHAT HAPPENS NEXT?  

DOES IT MATTER IF THE PARENT WHO IS ABUSED IS A MAN? 

by Karen Winner

I came professionally face-to-face with these issues above, in a recent case I handled in New York, where I represented the man who had been abused by his wife.

First, to get a better idea of the issues and laws involved,  let’s look at a hypothetical example (originally based on a case cited by a publication of the U.S. Department of Justice ) that sets forth the process and the law.  Then, I will relate the New York case I handled, in which I prevailed at the trial and Appellate level.

In the first hypothetical example: following a fight with her husband, a battered wife takes the couple’s child from their Wisconsin home to Illinois and seeks refuge at a domestic violence shelter. In Illinois, the mother files for custody of the child on emergency jurisdiction grounds. She gives her husband the requisite notice that she is in Illinois.

The child’s father does not respond to the mother’s suit in Illinois. The court in Illinois grants the mother temporary custody, stipulating that the order will become permanent after 6 months if no proceeding is commenced in Wisconsin, the child’s home state. 

The father, however, commences a custody proceeding in the child’s home state of Wisconsin soon after receiving notice of the mother’s Illinois action for custody. 

The father accuses the mother of parental kidnapping. 

The mother receives notice of the legal proceeding in Wisconsin via her attorney.  

What happens in this situation? 

The Wisconsin court — where the left-behind father resides, and Illinois court — where the mother and child now reside —  will communicate with each other, as they must under the law — specifically, the Uniform Child- Custody Jurisdiction and Enforcement Act (the UCCJEA). This Act has been passed in 49 states. Under this law, the Wisconsin court may cede jurisdiction to Illinois, where the mother and child fled — depending on a variety of factors the Wisconsin court will consider.

The Wisconsin court will look at facts to see whether the domestic violence has occurred, and whether it is likely to occur in the future. The Wisconsin court will consider which state could best protect the parties and the child. After looking at the merits, the Wisconsin court can make a choice to decline to hear the case, giving the new state, Illinois, jurisdiction over the custody lawsuit to see whether the temporary order granting the mother custody, will become permanent.

But what happens when the roles are reversed, and the victimized spouse is a man, and the mother accuses him of parental kidnapping, after he flees to a new state with the couple’s child? 

This was exactly the situation in the case I handled in New York, after a father fled with the couple’s child from New York to Massachusetts, and alleged the mother had committed domestic violence.   

In this case, the parents and child had only resided in New York City for three weeks or so when the mother committed domestic violence against the father. He fled to Massachusetts and obtained a temporary court order for custody. The mother then brought a proceeding in New York, and the question became this: was the father justified in leaving New York with their child? The New York court heard facts and evidence of the domestic violence and made the choice: the New York Family Court decided to give up jurisdiction based on the domestic violence, and the fact that the Massachusetts court said it could expedite the custody matter, whereas the New York court would not be able to hear the matter for a year or more, due to the backlog of cases in Brooklyn. The mother appealed the trial court’s decision, and the matter went to a higher court for review — the Appellate Court. The decision of the Appellate court is below, affirming for the father.

Matter of Peiyi Wang v Christensen, 165 A.D.3d 1269

Export Citation

Supreme Court of New York, Appellate Division, Second Department

October 31, 2018, Decided

2018-01742 (Docket No. V-27854-17)

Reporter

165 A.D.3d 1269 * | 84 N.Y.S.3d 808 ** | 2018 N.Y. App. Div. LEXIS 7286 *** | 2018 NY Slip Op 07315 **** | 2018 WL 5623921

[****1] In the Matter of Peiyi Wang, appellant, v Gregory James Christensen, respondent.

Counsel: [***1] Proskauer Rose, LLP, New York, NY (John H. Gross of counsel), for appellant.

Karen F. Winner, New York, NY (Nancy Erickson of counsel), for respondent.

Judges: HERYL E. CHAMBERS, J.P., SYLVIA O. HINDS-RADIX, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ. CHAMBERS, J.P., HINDS-RADIX, LASALLE and IANNACCI, JJ., concur.

Opinion

[**808] [*1269] DECISION & ORDER

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Dean Kusakabe, J.), dated December 18, 2017. The order dismissed the mother’s petition for custody of the subject child on the ground that New York is an inconvenient forum.

ORDERED that the order is affirmed, without costs or disbursements.

Pursuant to Domestic Relations Law § 76-f, a court with jurisdiction to make a child custody determination under Domestic Relations Law article 5-A may decline to exercise such jurisdiction if it determines that New York is an inconvenient forum and that another state is a more appropriate forum (see Domestic Relations Law § 76-f[1]; Matter of Mzimaz v Barik, 89 AD3d 948, 933 N.Y.S.2d 79). The factors to be considered in making this [**809] determination include: (1) whether domestic violence or child abuse has occurred and is likely to occur in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside the State; [***2] (3) the distance between the court in this state and the court in the state that would assume jurisdiction; (4) the relative financial circumstances of the parties; (5) any agreement of the parties as to which state should assume jurisdiction; (6) the nature and location of the evidence required to resolve the pending litigation; (7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) the familiarity of the court of each state with the facts and issues in the pending litigation (see Domestic Relations Law § 76-f[2]; Matter of Paderno v Shvetsova, 96 AD3d 762, 945 N.Y.S.2d 761).

[*1270] Here, the Family Court providently exercised its discretion in declining jurisdiction over the mother’s custody petition and determining that the court in Massachusetts was a more appropriate forum. The mother committed an act of domestic violence against the father in New York on October 5, 2017, resulting in the issuance of an order of protection against the mother in the father’s favor. The father thereafter went to Massachusetts with the child for the father’s own protection. A The Massachusetts court issued a temporary order of custody to the father and is well aware of the issues in this matter. In addition, the Massachusetts court’s calendar is less backlogged, thereby affording a more expeditious resolution of the custody [****2] matter. Accordingly, the Family Court properly dismissed the mother’s petition for custody on the ground that New York is an inconvenient forum and that Massachusetts is a more appropriate forum.

The parties’ remaining contentions are without merit.

CHAMBERS, J.P., HINDS-RADIX, LASALLE and IANNACCI, JJ., concur.

Guardianship

A Guardianship is a formal legal arrangement, in which a court  gives a person the legal rights to act on behalf of an incapacitated adult, or child whose parents are dead or missing, or otherwise not able to care for the child. The guardian is responsible for ensuring that the needs of a child or incapacitated adult are met. In New York, adults who can no longer manage their personal or financial affairs due to mental or physical impairment are considered legally incapacitated. Article 81 of New York’s Mental Hygiene Law provides courts with the authority to appoint guardians to assist such individuals.

In a 2010 report, the U.S. Government Accountability Office (GAO) found hundreds of allegations of physical abuse, neglect and financial exploitation by guardians in 45 states and the District of Columbia between 1990 and 2010. Guardians also stole $5.4 million in assets from their wards in that period, the GAO said.

The American Bar Association published the statement that “an unknown number of adults languish under guardianship” even if they no longer have the need for someone to make decisions for them (or never did).Another danger is that while court-appointed guardianship could be terminated through a court hearing if it can be proved the need no longer exists, the ABA study also asserted the guardianship situation is typically permanent, leaving few ways out for the adults under care. Those who do try to fight against a court-appointed guardian often end up paying excessive amounts of money in attorney and court fees—some even going bankrupt in the process.

Guardians require a high level of oversight but there is very little data on whether adequate oversight is occurring because the courts typically don’t keep track when guardians are found to financially abuse their wards. Thus, unscrupulous court-appointed guardians can more easily slip through the cracks and continue to abuse the system and their wards’ assets.

How to Protect Against the Potential of Abuse

I would not want a court-appointed guardian — particularly a stranger —  to exert control over my life, and I can’t imagine anyone would want to give up autonomy and control, especially when the system can’t guarantee adequate oversight against financial exploitation of the person under the guardian’s care. Court-appointed guardians are given the power to wield extreme control. They could legally:

• Change your permanent residence to a more restrictive location.
• Decide how your money will be spent for your needs, and remove your autonomy regarding financial decision making.
• Place restrictions on communications, visit, or interactions with another person.
• Make decisions contrary to your wishes regarding general life in areas like recreational activities, clothing, and food choices.

The following legal and estate planning tools are proactive measures you can take today to avoid the potential of being subject to a guardianship.

IN NEW YORK: THE HEALTH CARE PROXY

Health Care Proxy

It allows you to choose a person to make decisions on your behalf in the event you become incapacitated either temporarily (such as under anesthesia) or permanently. If you cannot express your medical treatment wishes clearly and coherently,  a healthy care proxy gives your agent authority to make such wishes be known on your behalf. The decisions are stipulated in the proxy. This way you can make sure your health care providers follow your wishes. The designated agent also retains the right to receive your medical record information that would otherwise be inaccessible as it is protected under HIPAA laws.  If you want to limit Your Health Care Proxy’s authority, you can limit it by writing the limitations in the Health Care Proxy.  You and two (2) witnesses must sign your NY Health Care Proxy form for it to be considered valid.

According to the New York State Department of Health, there are several situations that may require a proxy:

• You are in a coma from an accident or illness.
• You are terminally ill and not expected to recover.
• You have Alzheimer’s or another form of dementia.
• You are under general anesthesia, when something unexpected occurs.
• You are in a persistent vegetative state.
• You suffered from an illness that left you unable to communicate.

The New York State Department of Health also warns that appointing the right person to be your healthcare proxy can be difficult. Here are some steps the NY State Dept. of Health says can guide you:

Have an honest conversation.

Talk to family members and friends about what you want. During those conversations, look for someone who is most likely to represent your wishes.

Clarify your values and beliefs.

Consider what’s important to you. What contributes to the quality of life you want? How do you want to spend your final years, weeks or days? What activities are essential to having a quality life? What role does your faith play in making these decisions?

Frame your medical wishes around these values and priorities. Determine which treatments you are willing to accept. Figure out which treatments you would never want. How much medical care are you willing to have to stay alive? What kind of medical risks are you willing to take? When would you want to shift from treatment to comfort care? 

With the Health Care Proxy form, you are not giving up your authority just by signing it, according to the N.Y. Dept. of Health which states: “Even though you have signed this form, you have the right to make health care decisions for yourself as long as you are able to do so, and treatment cannot be given to you or stopped if you object, nor will your agent have any power to object.” See link: https://www.health.ny.gov/professionals/patients/health_care_proxy/

You do not need a lawyer to fill out this form. You can obtain a New York Health Care Proxy at the following link: https://www.health.ny.gov/professionals/patients/health_care_proxy/

POWER OF ATTORNEY

A Power Of Attorney is a legal document that gives a person authority to handle your financial decisions and take actions like pay bills, settle debts, and sell property on your behalf if you become incapacitated and are unable to do this yourself. Under a Power of Attorney, you can give the person limited or expanded power. You can revoke the Power of Attorney at any time, unless you no longer have mental capacity to make decisions. Because the Power of Attorney is so vulnerable to abuse, states such as New York, require that the POA contains explicit disclosure of your rights as “the Principal.” 

For example, here is how the New York’s  Power of Attorney document provides this warning on the first page: 

(a) CAUTION TO THE PRINCIPAL: Your Power of Attorney is an important document.  As the “principal,” you give the person whom you choose (your “agent”) authority to spend your money and sell or dispose of your property during your lifetime without telling you.  You do not lose your authority to act even though you have given your agent similar authority.  

When your agent exercises this authority, he or she must act according to any instructions you have provided or, where there are no specific instructions, in your best interest.  “Important Information for the Agent” at the end of this document describes your agent’s responsibilities.

Your agent can act on your behalf only after signing the Power of Attorney before a notary public.

You can request information from your agent at any time.  If you are revoking a prior Power of Attorney, you should provide written notice of the revocation to your prior agent(s) and to any third parties who may have acted upon it, including the financial institutions where your accounts are located.

You can revoke or terminate your Power of Attorney at any time for any reason as long as you are of sound mind.  If you are no longer of sound mind, a court can remove an agent for acting improperly.

The Power of Attorney automatically terminates upon the death of the principal. 

A REVOCABLE TRUST

 A  Grantor Revocable Trust can protect you, and keeps you in control of your assets as long as you have capacity to make decisions. A  trustee and successor trustee could be named and the document could be used as a safeguard for financial protection. If you don’t want to give up your authority you want a Grantor Revocable Trust that you can revoke at any time, if you so choose — as long as you have the capacity to make decisions. People can name their own Guardian in a Trust. The Guardian you name will act on your behalf if you are disabled. Only after death does your property transfer to the beneficiaries.

YOU NEED TO BE PROACTIVE 

By being proactive, you can opt for a Power of Attorney and  a Grantor Revocable Trust and be certain that someone you trust will be responsible for carrying out your wishes and acting in your best interests, and not rely on the courts to appoint a stranger to control your finances and your life.  You can revoke the Power of Attorney and Grantor Revocable Trust at any time (unless you become incapacitated). You do not need the court’s permission to revoke a Power of Attorney or Grantor’s Trust, whereas once a court-appointed guardian  is appointed you have to go through an elaborate, expensive court process to prove it is not necessary and should be revoked.

New York and other states need substantial policy change to better protect people from exploitation by court-appointed  guardians.  Until reforms are enacted, it’s best to have your own legal safeguards in place just in case: a Health Care Proxy, Grantor Revocable Trust and/or Power of Attorney. The key to protecting your interests is to make sure  the person you are designating to be your agent has earned your trust. Do your homework to satisfy yourself that the person to whom you give this enormous power will be loyal to your interests, trustworthy and act in good faith, on your behalf. 

Beyond “Self Advocacy” — Basic Rights College Students with Disabilities Should Know

Don’t know how to access your lawsuit on-line in the state civil court system?  I teach my class on Financial Fraud in Divorce how to do it, and I’ll show you too. It’s eeeeeeeaasy!  While divorce documents can’t be viewed in New York because they are sealed — unlike California and some other states, most other types of documents in civil cases can be viewed on-line.

Even if you are not involved in a lawsuit, there are so many interesting viewable documents available by public access.  For example,  the President, Donald J. Trump,  is a named defendant in a long list of cases against him in New York — all on public display.  I will show you how to find case #39, with instructions below. It is one of the more interesting cases — and is ongoing.  If you live outside of New York and want to access your legal files, but don’t know how, call the court clerk, who will be able to help you.

HOW TO PUBLICLY ACCESS COURT CASES IN NEW YOK

1. Go to http://www.nycourts.gov (NY State Unified Court System)

and on home page see e-COURTS  and click on e-Track

2. click on Webcivil Supreme (you don’t need to register)

3. Party Search

Find New York State Civil Supreme Court cases by party name.

You will see page: WebCivil Supreme

WebCivil Supreme provides online access to information about cases in Civil Supreme Court in all 62 counties of New York State. You may search for cases by Index Number or the name of the Plaintiff or Defendant, look up cases by Attorney/Firm name, and view Calendars for each court. With our eTrack case tracking service you can receive email updates and appearance reminders for Civil Supreme Court cases.

WebCivil Supreme is provided as a FREE public service by the New

York State Unified Court System.

4. click on Agree  — sends you to to new page: See:

5. Party Search

Fill in following:

Enter name to search for:  Let’s try —

Party Name: DONALD TRUMP

Party Represents: DEFENDANT

Limit Search (if desired) by:

To make your search faster you may wish to limit your search by

County(s)  NEW YORK COUNTY

MAKE SURE FOLLOWING ARE CHECKED:

Case status  = All

Return cases only with future appearances = No

You will obtain CASE SEARCH RESULTS
Appearing next is the list of cases.  

Case #39 is filed 6/14/2018.  

Click on the index number and you will see a box on the lower right that says “SHOW E-FILED DOCUMENTS.”

There they are. . . . .

The Verified Petition is very interesting.  (You can access it as a pdf too.) 

The Caption of the case reads: 

The People for the State of New York, by Barbara D. Underwood, the New York Attorney General against Donald J. Trump, Donald J. Trump Jr., Ivanka Trump, Eric F. Trump, and The Donald J. Trump Foundation 

The Verified Petition claims that Donald J. Trump used charitable assets to pay  off the legal obligations of entities he controlled, to promote Trump hotels,  to purchase personal items, and to support his presidential election campaign.

The exhibits are fun to look at too —  so many e-mail communications are included.