New Divorce Case Law

On August 17, 2022, the Second Department Appellate Division issued a new ruling in the divorce case of Bauman v Bauman. The case involves payment of attorney fees and contempt.

The parties were divorced in Nassau County on September 25, 2013. As part of the divorce order, the $420,189 in arrears for the carrying charges on the marital residence, and awarded the plaintiff attorney fees in the sum of $30,000. In 2015, a court reduced the carrying charges to $206,094.50, but affirmed the $30,000 award of counsel and gave the plaintiff an additional $9,500 award.

After the defendant violated the court order, in 2020 the plaintiff moved for contempt for failure to pay the amount. The court found that the defendant was in contempt.

The court first described how to hold a party in contempt: To prevail on a motion to hold a party in civil contempt, the movant must establish, by clear and convincing evidence (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate, (2) the appearance, with reasonable certainty, that the order was disobeyed, (3) that the party to be held in contempt had knowledge of the court's order, and (4) prejudice to the right of a party to the litigation.

The court found that by not paying the amount due, the defendant was in contempt. However, the party was not entitled to additional attorney fees.

Takeaway: The reason the court did not allow attorney fees in the contempt proceeding was the plaintiff and her lawyer did not have a written retainer agreement. Retainer agreements are mandatory to receive attorney fees.