New York Matrimonial Trial Handbook
The by Joel R. Brandes is available and in our bookstore. The electronic edition is the perfect “assistant” to bring into the courtroom on your tablet or laptop for a contested matrimonial trial. It places the substantive law and the rules of evidence at your fingertips. You can quickly find what you need to know to lay a foundation for the introduction of evidence, and grounds for objecting to evidence offered by your adversary. Counsel never has to worry about what questions to ask a witness in a difficult situation. There are thousands of suggested questions for the examination of witnesses and cross-examination of expert witnesses dealing with every aspect of the matrimonial trial.
The by Joel R. Brandes is available at bookstores and online in the print edition, , and .
The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at with the permission of the New York Law Journal.
The was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses.
Wednesday, September 19, 2018
Diagne v DeMartino, 2018 WL 4385659 (E.D. Michigan, 2018) [Canada] [Habitual Residence] [Article 18] [Petition granted in part and denied in part]
Monday, September 17, 2018
Rath v Marcoski, --- F.3d ----, 2018 WL 3799875 (11th Cir., 2018)[Czech Republic] [Necessary expenses]
In Rath v Marcoski, --- F.3d ----, 2018 WL 3799875 (11th Cir., 2018) the Eleventh Circuit addressed the standard for awarding attorney’s fees and costs to a successful petitioner in an action for the return of a child under the Hague Convention. It pointed out that the International Child Abduction Remedies Act (“ICARA”), which implements the Hague Convention, directs that a district court “shall order the respondent to pay necessary expenses ... unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). The district court held that respondent failed to meet her burden under ICARA and awarded fees and costs to petitioner.
Petitioner Jan Rath, a citizen of the Czech Republic, initiated this suit under the Hague Convention for the return of his child, L.N.R., after the child’s mother, Veronika Marcoski, removed him from the Czech Republic to Florida in April 2016. The district court held that Marcoski had wrongfully removed L.N.R. from the Czech Republic and ordered that L.N.R. be returned. The Eleventh Circuit affirmed, holding that the district court’s assessment of the credibility of the witnesses was entitled to “great deference.” Marcoski v. Rath, 718 F. App’x 910, 912 (11th Cir. 2017) Rath moved for an award of attorney’s fees and costs in the district court. Marcoski objected, arguing that an award would be clearly inappropriate because she acted in good faith when she removed L.N.R. to the United States. The district court rejected this argument Rath v. Marcoski, No. 8:16-cv-2016, 2018 WL 446651, at *1 (M.D. Fla. Jan. 17, 2018) (). It found that Marcoski had not established that a fee award would be clearly inappropriate. The court awarded to Rath $73,219.50 in attorney’s fees, $5421.00 in taxable costs and $10,849.76 in expenses, for a total award of $89,490.26.
The Eleventh Circuit affirmed. It pointed out that ICARA’s fee-shifting provision creates a rebuttable presumption in favor of a fee award.1 It read the statutory text as creating a strong presumption in favor of fee-shifting, rebuttable only by a showing from the losing respondent that an award of attorney’s fees, costs and expenses would be clearly inappropriate. See Salazar, 750 F.3d at 520 (stating that “the prevailing petitioner is presumptively entitled to necessary costs”)
The Court noted that the term “clearly inappropriate” is not used in any other fee-shifting statute. According to some courts, this exception “provides the district court ‘broad discretion in its effort to comply with the Hague Convention consistently with our own laws and standards.’ ” West v. Dobrev, 735 F.3d 921, 932 (10th Cir. 2013) (quoting Whallon, 356 F.3d at 140); see also Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). It held hat ICARA does not afford courts broad discretion on the issue of whether prevailing petitioners are entitled to an award—the statute dictates that they presumptively are—and the exception cannot be drawn so broadly as to make the analysis indistinguishable from what courts employ under a typical fee-shifting statute. Congress did grant courts limited equitable discretion to determine when to allow an exception. It may well be that courts making this determination will look to factors that are familiar in the fee award context. But in doing so, courts must place on the losing respondent the substantial burden of establishing that a fee award is clearly inappropriate. Though the “clearly inappropriate” inquiry is fact-dependent, two considerations have arisen with some frequency in the case law. One is whether a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child. See Whallon, 356 F.3d at 139–40 (citing cases); Norinder v. Fuentes, 657 F.3d 526, 536–37 (7th Cir. 2011); Mendoza v. Silva, 987 F.Supp.2d 910, 917 (N.D. Iowa 2014). A second is whether a respondent had a good faith belief that her actions in removing or retaining a child were legal or justified. See Ozaltin, 708 F.3d at 375–76; Mendoza, 987 F.Supp.2d at 916–17.
Marcoski relied solely on the argument that a fee award was clearly inappropriate because she acted in good faith in removing L.N.R. to the United States. The Court agreed that the basis for a losing respondent’s course of conduct can be a relevant consideration in deciding if a fee award is clearly inappropriate. See Ozaltin, 708 F.3d at 375 (“Although mistake of law is not a defense to the return action itself, it is a relevant equitable factor when considering whether a costs award is appropriate.”). However, it found that Marcoski fell well short of her burden of establishing the “clearly inappropriate” exception. The record developed on the merits of the wrongful removal petition was replete with evidence contradicting Marcoski’s good faith argument, and the district court’s factual determinations on the merits were affirmed on appeal and constituted the law of the case. It found that the district court did not abuse its discretion in finding that Marcoski failed to establish under ICARA that an award of necessary expenses would be clearly inappropriate and the award was affirmed.