Attorney Joel R. Brandes's Legal Cases

Divorce and separation

Litman v Litman

May 31, 1983

OUTCOME: Client successful

This appeal presented the question of whether a spouse's law practice is subject to equitable distribution upon the dissolution of a marriage. Special Term held that a law practice is not a proper subj ... ect for equitable distribution, and thereupon denied the defendant wife's application for funds to enable her to retain experts to determine the value of her husband's law practice. The Appellate Division reversed. It held that the Equitable Distribution Law (Domestic Relations Law, § 236, part B) was enacted in recognition of the fact that marriage is, among other things, an economic partnership and, upon its dissolution, property accumulated during the marriage should be distributed in a manner which reflects the individual needs and circumstances of the parties regardless of the name in which such property is held (Governor's memorandum of approval, McKinney's Session Laws of NY, 1980, p 1863). With this end in mind, the Legislature established the “distributive award” (Domestic Relations Law, § 236, part B, subd 1, par b) to cover situations where a division of the actual marital property between the spouses is impracticable, impossible, or illegal (Domestic Relations Law, § 236, part B, subd 5, par e). In such situations, the court may award a sum of money in lieu of an actual distribution of property. That the Legislature established the distributive award to cover situations such as in the instant case is made clear to us by the statutory language: “In any action in which the court shall determine that an equitable distribution is appropriate but ... where the distribution of an interest in a ... profession would be contrary to law, the court in lieu of such equitable distribution shall make a distributive award in order to achieve equity between the parties” (Domestic Relations Law, § 236, part B, subd 5, par e). While it may be difficult to determine the value of the law practice involved herein, nevertheless, in the face of the clear intent of the Legislature, it held that that a law practice is a proper subject for a distributive award. Based upon expert testimony, the trial court will be in a position to arrive at a proper formula for such evaluation appropriate to the facts before it.

Family

Brody v Brody

Dec 05, 1982

OUTCOME: Client successful

The Appellate Division held that Special Term's award of maintenance and child support was inadequate in light of (1) plaintiff's and the children's weekly expenses (minus those for which defendant's p ... ayment was separately ordered), of at least $630 per week; (2) plaintiff's lack of any independent source of income; and (3) defendant's disposable income of approximately $300,000 per year, which establishes both his ability to make payments of $650 per week, and the parties' marital standard of living. The Appellate Division modified the award upward predicated on the facts and circumstances of this case, which indicate that prolonged discovery and dispute over the parties' finances was probable. It also held that with regard to Special Term's restraint of plaintiff's transfer of marital assets, such sua sponte stay was in violation of plaintiff's due process rights, as she was never notified that such an order was under consideration.

Family

Hirschfeld v Hirschfeld

Jul 07, 1982

OUTCOME: Client successful

The Appellate Division found that the plaintiff was not uccessful in establishing that the law practice of defendant, an individual practitioner, had any intrinsic value beyond what he might make as sa ... lary as an employee of a large firm or corporation. It noted that in the recently decided case of Litman v Litman (93 AD2d 695, 696), the Second Department found section 236 (part B, subd 5, par e) of the Domestic Relations Law to specifically countenance a “distributive award” based upon the value of a law firm. It found that, because it is so “difficult to determine the value of the law practice involved herein”, plaintiff had not carried her burden in the case at bar. Indeed, it may be well-nigh impossible to capitalize this defendant's practice, notwithstanding the substantial listing of luxury assets in his name. Although certainly subject to being distributed equitably, they really do not indicate any more than the probability that defendant earns more than he states. Accordingly, it found the better, more equitable resolution to be a re-evaluation by Special Term of what a proper maintenance award should be.

Divorce and separation

Tucker v. Tucker 55 NY2d 378, 449 NYS2d 683 (Court of Appeals)

Apr 06, 1982

OUTCOME: Client successful

The New York Court of Appeals held that the Equitable Distribution Law of 1980 was not retroactive.

Divorce and separation

Morone v. Morone 50 NY2d 481, 429 NYS2d 592 (Court of Appeals)

Jun 02, 1980

OUTCOME: Client successful

New York Palimony case. The New York Court of Appeals held that an express oral contract between an unmarried couple as to earnings and assets is enforceable.

Divorce and separation

Katz v Katz

Jun 25, 1979

OUTCOME: Client successful

The Appellate Division held that although review may be had of the proceedings on a contested inquest after a default in this case the defendant's attorney left court after his client's answer was str ... icken and he did not return for the inquest. Accordingly, defendant's contentions (1) that plaintiff failed to prove a prima facie case of abandonment, adultery or cruel and inhuman treatment, (2) that the wife was not entitled to an award for necessaries, (3) that the awards of alimony and child support were not based on competent evidence and (4) that the complaint should not have been amended at the inquest to seek a divorce rather than a separation (even though defendant knew that plaintiff intended to make that motion), were not reviewable by the court since they all related to matters which were determined at an uncontested inquest. Similarly, defendant could not have a review of the order of April 18, 1978 granting a trial preference and directing him to appear for an examination before trial or of the award in the final judgment of counsel fees to the wife, because these questions were determined on motions which went unopposed by defendant. Review could not be had of the order of October 26, 1977 which, inter alia, granted plaintiff's motion for the sequestration of defendant's assets because that order was entered ex parte. If defendant wished to contest the order of sequestration, he could have simply moved to vacate it and thereby had a review of the order deciding the motion to vacate. This he did not do. Finally, defendant could not have a review of the temporary restraining order contained in the order to show cause dated December 6, 1977 or of the service provisions of the orders to show cause dated February 27, 1978 and April 5, 1978. In addition to the fact that these provisions were contained in unreviewable ex parte orders, they also did not “necessarily affect” the final judgment (see CPLR 5501, subd [a], par 1), since that judgment contained no provisions relating to the motion to punish defendant for contempt.

Estate planning

Flatto v Flatto

Jun 03, 1976

OUTCOME: Client successful

Order affirmed by New York Court of Appeals

Divorce and separation

Wegman v. Wegman

Nov 19, 1975

OUTCOME: Client successful

The New York Court of Appeals held that since the defendant alleged in her counter-claim that she was suffering from certain specified ailments in addition to general poor health, her "physical conditi ... on" was "in controversy" within the meaning of CPLR 3121 and the plaintiff was entitled to request a physical examination. CPLR 3121 does not prohibit such examinations in matrimonial actions, and although we recognize the potential for abuse in these cases, the court's broad discretionary power to grant a protective order "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103) should provide adequate safeguards

Joel R. Brandes's Legal Cases (18)

Litman v Litman

Brody v Brody

Hirschfeld v Hirschfeld

Tucker v. Tucker 55 NY2d 378, 449 NYS2d 683 (Court of Appeals)

Morone v. Morone 50 NY2d 481, 429 NYS2d 592 (Court of Appeals)

Katz v Katz

Flatto v Flatto

Wegman v. Wegman