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Attorney Husband Who Misled Wife About Contract Change Gets Benefit of Original Agreement
Husband struck separation agreement clause at wife's request, knowing modification was invalid; court says original separation agreement applies
New York Law Journal
October 30, 2008
A Long Island, N.Y., attorney is not obliged to pay $52,000 a year in maintenance to his ex-wife even though he acknowledged crossing out a cohabitation clause freeing him to stop the payments from a copy of the separation agreement he had negotiated with her, a state judge has ruled.
In A.K.H. v. B.H., 200306/07, Supreme Court Justice Jeffrey S. Brown of Nassau County also granted the attorney, Alan K. Hirschhorn, a divorce from his wife, Barbara.
The names of the parties were redacted in Brown's decision. They were identified by the New York Law Journal through other court records.
At issue were dueling versions of the separation agreement. Hirschhorn contended that prior to the execution of the agreement, her husband, a partner in the litigation and family law practice group of Jaspan Schlesinger Hoffman in Garden City, N.Y., eliminated the provision, which would have terminated his obligation to pay maintenance if she "cohabited with an unrelated male."
Hirschhorn argued that no such change was made prior to the execution of the agreement. But he acknowledged that he did cross out the clause on one of several copies after it was executed. But he argued that as the "cross out" was done without "legal formality or legal significance," according to Hirschhorn, it should not be enforced.
The couple was married in 1975 and have one daughter, 26. In 1998, the husband left the marital residence and separation negotiations began. Hirschhorn, who had practiced matrimonial law for more than 30 years, represented himself, while his wife retained an attorney.
At a three-day trial this summer, Hirschhorn testified that toward the end of 2001, his wife told him she was discharging her attorney because "it was costing her a lot of money for legal fees." Hirschhorn continued negotiations with his wife, and the two reached an agreement on July 8, 2002.
Hirschhorn said he and his wife met at a restaurant and he provided her with five copies of the agreement. His wife, he testified, "glanced" at the agreement and asked that he add "medical, dental and pharmaceutical" to the health expense provision. He modified the agreement, then both parties signed all five copies, which Hirschhorn took with him.
The next day, according to Hirschhorn, his wife came to his law office, where the couple acknowledged their signatures before Michael Permut, a partner at Jaspan Schlesinger who was also a notary. An original agreement was filed with the county clerk on Oct. 15, 2003.
Hirschhorn testified that his wife needed money to buy a condominium, and asked if she could use funds from the sale of the marital residence, approximately $400,000. Hirschhorn also agreed to represent his wife at the closing on Sept. 11, 2003.
Just before the closing, he told the court, his wife asked him to strike the cohabitation clause because she wanted her boyfriend to move in and help maintain the condo. According to the decision, Hirschhorn struck the clause and initialed it, knowing that "the modification was absolutely unenforceable."
The agreement called for Hirschhorn to receive $26,000 annually for maintenance and $26,000 for child support until the couple's daughter was emancipated. At that point, the maintenance was to increase to $52,000 annually. According to the decision, Hirschhorn paid all sums required, in addition to voluntarily paying "numerous expenses," such as a car lease and car insurance.
In December 2005, Hirschhorn told his wife that according to the terms of their agreement, he could cut off her maintenance payments as she was living with her boyfriend. However, he offered to keep paying half of the maintenance. Hirschhorn objected, reminding him of the crossed-out clause. Despite telling his wife that the struck clause "did not matter because it did not comport with the law," Hirschhorn continued making the full payment "out of love and respect" for the couple's daughter, according to the decision.
In February 2007, Hirschhorn filed for divorce. His wife asked him whether she would need a lawyer. According to the decision, Hirschhorn replied that "he could not answer the question ... [but] he could not see why she would need an attorney."
In court, Hirschhorn testified that she was "not thrilled" with the separation agreement and asked her husband to strike the cohabitation clause at the restaurant meeting in July 2002. She told the court she did not go to her husband's office the next day to notarize the agreement, but received one copy in the mail.
She also denied that the clause was crossed out the same day as the condominium closing. On cross examination, Hirschhorn told the court that the first time she saw "any proposed agreement" was at the restaurant meeting. In sum, she testified that she could not recall a lot of detail about which pages she examined.
According to the decision, however, at a previous deposition, she had testified that "she read a lot, most of the financial information."
At the restaurant meeting, she said, she asked her husband, "If I was lucky enough to meet somebody, could I live with them?" at which point he answered "yes," and crossed out the cohabitation clause.
Hirschhorn also told the court that she did not recall receiving several drafts of the agreement between 2001 and 2002. She testified that she could not recall discussing a draft version of the agreement with her attorney. She said she was only shown the last page of the modification agreement on the date of the closing in 2003 and she signed because "she relied [on] ... and trusted" her husband.
ISSUE OF CREDIBILITY
In his decision, Brown questioned, "if the clause was struck on July 8, 2002 as alleged by defendant, why wasn't the cohabitation clause struck on the other duplicate originals at that time?"
The question, held the judge, was one of credibility. In this case, he noted, Hirschhorn's deposition testimony was inconsistent with her trial testimony.
"Even though defendant was confronted with letters evidencing that proposed separation agreements were mailed to her home, she had no recollection of receiving them," Brown wrote.
The judge also pointed out contrasts between Hirschhorn's testimony regarding whether she had ever discussed the agreement with her previous attorney.
Justice Brown also noted that she had "no problem remembering the twenty-something vacations and business-related trips she took. However, she had difficulties remembering the events leading up to the execution of the separation agreement as well as the modification agreement."
Brown declined to accept Hirschhorn's argument that she had relied on the struck clause in purchasing her condominium.
"The record supports the fact that the defendant negotiated the purchase of her condominium, entered into a binding contract to purchase same, and tendered a down payment in August 2003," the judge wrote. "Prior to the elimination of the cohabitation clause on October 27, 2003, defendant also secured a promise from her boyfriend that he would move into the condominium and pay the maintenance and taxes."
The judge did not address the argument of whether Hirschhorn, as an attorney, had a fiduciary duty to his wife, who was unrepresented in negotiating and executing the agreement.
Steven Del Vecchio of Del Vecchio & Recine in Garden City represented Hirschhorn in the divorce action.
Robert H. Brodrick of Moran, Brodrick & Elliot in Garden City represented Hirschhorn.
In A.K.H. v. B.H., 200306/07, Supreme Court Justice Jeffrey S. Brown of Nassau County also granted the attorney, Alan K. Hirschhorn, a divorce from his wife, Barbara.
The names of the parties were redacted in Brown's decision. They were identified by the New York Law Journal through other court records.
At issue were dueling versions of the separation agreement. Hirschhorn contended that prior to the execution of the agreement, her husband, a partner in the litigation and family law practice group of Jaspan Schlesinger Hoffman in Garden City, N.Y., eliminated the provision, which would have terminated his obligation to pay maintenance if she "cohabited with an unrelated male."
Hirschhorn argued that no such change was made prior to the execution of the agreement. But he acknowledged that he did cross out the clause on one of several copies after it was executed. But he argued that as the "cross out" was done without "legal formality or legal significance," according to Hirschhorn, it should not be enforced.
The couple was married in 1975 and have one daughter, 26. In 1998, the husband left the marital residence and separation negotiations began. Hirschhorn, who had practiced matrimonial law for more than 30 years, represented himself, while his wife retained an attorney.
At a three-day trial this summer, Hirschhorn testified that toward the end of 2001, his wife told him she was discharging her attorney because "it was costing her a lot of money for legal fees." Hirschhorn continued negotiations with his wife, and the two reached an agreement on July 8, 2002.
Hirschhorn said he and his wife met at a restaurant and he provided her with five copies of the agreement. His wife, he testified, "glanced" at the agreement and asked that he add "medical, dental and pharmaceutical" to the health expense provision. He modified the agreement, then both parties signed all five copies, which Hirschhorn took with him.
The next day, according to Hirschhorn, his wife came to his law office, where the couple acknowledged their signatures before Michael Permut, a partner at Jaspan Schlesinger who was also a notary. An original agreement was filed with the county clerk on Oct. 15, 2003.
Hirschhorn testified that his wife needed money to buy a condominium, and asked if she could use funds from the sale of the marital residence, approximately $400,000. Hirschhorn also agreed to represent his wife at the closing on Sept. 11, 2003.
Just before the closing, he told the court, his wife asked him to strike the cohabitation clause because she wanted her boyfriend to move in and help maintain the condo. According to the decision, Hirschhorn struck the clause and initialed it, knowing that "the modification was absolutely unenforceable."
The agreement called for Hirschhorn to receive $26,000 annually for maintenance and $26,000 for child support until the couple's daughter was emancipated. At that point, the maintenance was to increase to $52,000 annually. According to the decision, Hirschhorn paid all sums required, in addition to voluntarily paying "numerous expenses," such as a car lease and car insurance.
In December 2005, Hirschhorn told his wife that according to the terms of their agreement, he could cut off her maintenance payments as she was living with her boyfriend. However, he offered to keep paying half of the maintenance. Hirschhorn objected, reminding him of the crossed-out clause. Despite telling his wife that the struck clause "did not matter because it did not comport with the law," Hirschhorn continued making the full payment "out of love and respect" for the couple's daughter, according to the decision.
In February 2007, Hirschhorn filed for divorce. His wife asked him whether she would need a lawyer. According to the decision, Hirschhorn replied that "he could not answer the question ... [but] he could not see why she would need an attorney."
In court, Hirschhorn testified that she was "not thrilled" with the separation agreement and asked her husband to strike the cohabitation clause at the restaurant meeting in July 2002. She told the court she did not go to her husband's office the next day to notarize the agreement, but received one copy in the mail.
She also denied that the clause was crossed out the same day as the condominium closing. On cross examination, Hirschhorn told the court that the first time she saw "any proposed agreement" was at the restaurant meeting. In sum, she testified that she could not recall a lot of detail about which pages she examined.
According to the decision, however, at a previous deposition, she had testified that "she read a lot, most of the financial information."
At the restaurant meeting, she said, she asked her husband, "If I was lucky enough to meet somebody, could I live with them?" at which point he answered "yes," and crossed out the cohabitation clause.
Hirschhorn also told the court that she did not recall receiving several drafts of the agreement between 2001 and 2002. She testified that she could not recall discussing a draft version of the agreement with her attorney. She said she was only shown the last page of the modification agreement on the date of the closing in 2003 and she signed because "she relied [on] ... and trusted" her husband.
ISSUE OF CREDIBILITY
In his decision, Brown questioned, "if the clause was struck on July 8, 2002 as alleged by defendant, why wasn't the cohabitation clause struck on the other duplicate originals at that time?"
The question, held the judge, was one of credibility. In this case, he noted, Hirschhorn's deposition testimony was inconsistent with her trial testimony.
"Even though defendant was confronted with letters evidencing that proposed separation agreements were mailed to her home, she had no recollection of receiving them," Brown wrote.
The judge also pointed out contrasts between Hirschhorn's testimony regarding whether she had ever discussed the agreement with her previous attorney.
Justice Brown also noted that she had "no problem remembering the twenty-something vacations and business-related trips she took. However, she had difficulties remembering the events leading up to the execution of the separation agreement as well as the modification agreement."
Brown declined to accept Hirschhorn's argument that she had relied on the struck clause in purchasing her condominium.
"The record supports the fact that the defendant negotiated the purchase of her condominium, entered into a binding contract to purchase same, and tendered a down payment in August 2003," the judge wrote. "Prior to the elimination of the cohabitation clause on October 27, 2003, defendant also secured a promise from her boyfriend that he would move into the condominium and pay the maintenance and taxes."
The judge did not address the argument of whether Hirschhorn, as an attorney, had a fiduciary duty to his wife, who was unrepresented in negotiating and executing the agreement.
Steven Del Vecchio of Del Vecchio & Recine in Garden City represented Hirschhorn in the divorce action.
Robert H. Brodrick of Moran, Brodrick & Elliot in Garden City represented Hirschhorn.
