A few months ago, I posted a blog “Mind Your Manners” about how a party’s attitude may play a role in a judicial determination. This issue arises again in the recent unpublished decision of Sahai v. Sahai, confirming again that credibility is key in litigation.
In Sahai, the appellant/ex-husband appealed a trial court orders sanctioning him $20,000 for his failure to bring the parties’ child to court-ordered parenting time with his ex-wife, as well as to pay her counsel fees on multiple applications adjudicated at the trial court level. The trial court ordered the parenting time pending a plenary (evidentiary) hearing regarding the application of respondent/ex-wife to vacate the Property Settlement Agreement (divorce agreement) in which she agreed to forego any parenting time with the parties’ severely disabled daughter, claiming that her now ex-husband had coerced her into signing the Agreement.
The court ordered the parenting time session to occur for one hour at a library with their daughter’s medical assistant present. The session never occurred, apparently for medical issues even though her medical assistant was to be present. The parties then agreed in a Consent Order to three separate one-hour sessions at the library. Appellant never complied with any of those visits. Ultimately, he was sanctioned and ordered to pay Respondent’s counsel fees in multiple orders for which his reconsideration applications were denied. During this protracted litigation that occurred between 2014 and 2016 – approximately two years – Appellant also filed criminal charges against his ex-wife that were administratively dismissed, filed a lawsuit against his former attorney that was dismissed with prejudice, and filed a lawsuit against his ex-wife’s attorney in federal court that was also dismissed. If that’s not enough, Appellant failed to adequately produce discovery, including about his financial circumstances.
So, what happened? Not surprisingly, the Appellate Division affirmed the trial court’s order for both the sanctions and counsel fees awarded against Appellant. First, given that he failed to comply with discovery, he was in no position to argue that he could not afford the counsel fees or sanctions. Second, not only did he defy a court ordered parenting time session, but he then willfully defied a Consent Order in which he agreed to three parenting time sessions. His ex-wife ostensibly signed the Consent Order based on this representation. Additionally, the trial court warned him about the ramifications of his actions prior to issuing such orders.
As to counsel fees, the Appellate Division deferred to the trial court, as trial court’s make credibility findings… there’s that word again. Ultimately, it was Appellant’s “obstructionist litigation” that delayed the plenary hearing for years despite the trial court’s patience. There was no excuse for such actions. He had periods in which he was represented by capable counsel, although he represented himself at times. The Appellate Division specifically stated:
“Deference should be afforded to the trial court’s factual findings regarding Rooney’s willful non-compliance, his ability to pay, and the reasonableness of counsel fees, all of which are supported by substantial credible evidence in the record. The imposition of sanctions and attorney’s fees was a reasonable exercise of judicial discretion.”
So, here we are again with a willfully non-compliant litigant who refuses to produce adequate discovery and comply with court imposed and agreed upon Orders, now facing judgments of tens of thousands of dollars against him and in favor of his ex-wife. The decision on the plenary hearing is pending, but it’s possible that Appellant’s behavior at this level may also impact his ex-wife’s claim that he coerced her into signing the Agreement at the time of their divorce and, of course, a counsel fee award. We have to stay tuned…
With the stress of litigation upon you, please remember that it’s better to be the “bigger person”, follow orders and mind your manners! That does not mean you have to throw away creative legal arguments to prevail or your right to seek legal remedies when you disagree with an Order – your attorney will guide you down that path. However, having a good attorney cannot always shield you from your own actions – ultimately you should listen to counsel and, of course, the Court. Take discovery for example – Is producing discovery fun? No. Are there sometimes things you do not want to give the other side? Of course. But at the end of the day, they will find it or an adverse inference will be drawn against you for your failure to produce it on your own, as in this case where the Appellant lost his ability to argue that he cannot afford the counsel fees or sanctions he was ordered to pay. Don’t put yourself in that position.