Many divorces involve distribution of assets, including pensions.  To protect the non-titled party entitled to receive a share of the asset, i.e. pension, the court may mandate or the parties will negotiate security to ensure receipt of the value of the asset.  In a recent unpublished post judgment Appellate Division decision, Brown v. Brown, decided January 3, 2011, the court awarded the plaintiff-wife attorneys fees for enforcing defendant-husband’s obligation under the Judgment of Divorce to obtain a life insurance policy that guarantees the wife’s interest in defendant’s pension payments.  But the Appellate court refused to uphold the trial court’s Order, which imposed monetary sanctions against the husband for failing to obtain the requisite life insurance policy.

Defendant-husband was required to obtain a life insurance policy and to select a payout option where the wife would receive monthly income if the husband were to predecease the wife.  However, the husband failed to obtain the requisite life insurance and attempted to select the pension benefit that would maximize his income during retirement but would preclude the wife from receiving any income should he predecease her.  Only through the diligence of the wife was it discovered that husband had attempted to select the incorrect payout option.  As a result, the wife filed two motions seeking to enforce her rights under the Judgment of Divorce.

The trial judge ordered the husband to obtain the requisite life insurance and select the correct pay out option.  The judge also imposed a $250/day penalty for each day husband failed to abide by the Order.  32 after days beyond the deadline provided in the Order, the husband finally complied.  Given this late compliance, the trial judge imposed an additional $8,000 sanction and ordered the wife an award of partial attorneys fees.

The husband appealed the imposition of these sanctions.  In reversing the trial court, the Appellate Court found that the $8,000 sanction against husband without a hearing or any specific fact finding was inappropriate and would serve no purpose since husband had already complied with the Judgment of Divorce and Orders.

The wife cross appealed the partial award of counsel fees, arguing that 100% of her fees should have been granted due to husband’s noncompliance.  The Appellate Court agreed and reversed the partial award of counsel fees and instead granted wife the entirety of her fee application.

While sanctions are sometimes helpful in obtaining cooperation from a non-compliant party, this opinion evidences the hesitation many courts have in imposing such sanctions.  Oftentimes, we only see sanctions imposed under the most severe cases of noncompliance.  However, the sanctions are supposed to be to force compliance and not merely be punitive in nature.

An award of counsel fees, unique to family law matters, is a more commonly granted request.  This appears to be because the idea behind a counsel fee award is to reimburse the compliant party for funds spent obtaining cooperation from the non-compliant party.  Here, the court found that there was no reason that he wife should not be reimbursed all of her attorneys fees, essentially because she would not have had to incur them if the husband had complied with court orders.  Too often, courts simply make an arbitrary reduction to the fee request or pick some nominal amount.  In some cases, this can empower the person who was non-compliant because they see they can hurt the other party by forcing them to come out of pocket to enforce what they are already entitled to.  When full fees are awarded, as the court rules might suggest, the offended party is made whole and it may serve as a deterrent against future non-compliance.

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