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A husband who strategically delayed accepting a divorce settlement—but not to the point where his conduct was obstructionist or abusive—is liable for the extra legal fees incurred by his former wife, a judge in Rochester has held.

Acting Supreme Court Justice Richard Dollinger (See Profile) said the husband’s “hold-your-breath-until-the-very-end-and-cause-your-spouse-to-incur-unnecessary-fees” tactic is precisely the type of conduct that the Legislature sought to discourage with a 2010 amendment to the Domestic Relations Law. He awarded the wife $22,500.

The amendment created a rebuttable presumption that the less-moneyed spouse should be reimbursed for legal expenses. It was intended to discourage the moneyed spouse from using litigation to exhaust the resources of the less-moneyed spouse.

In Clements v. Clements, 09-12512, Dollinger said the husband’s rejection of a reasonable settlement, only to accept virtually the same offer several months later, constituted bad faith. Although Dollinger found no evidence that the husband “abused the process or engaged in blatant misrepresentations,” he said the unnecessarily foot-dragging ratcheted up the wife’s legal fees.

“[I]t is difficult to characterize this litigation strategy by the husband as ‘obstructionist or obstreperous’ in the sense that there is no evidence that he impeded depositions, made useless motions, or exhibited recalcitrant behavior,” Dollinger wrote. “However, from the wife’s perspective, the fact that the conduct does not rise to the level of obstructionism does not alleviate the practical consequences of delaying child support and driving up the cost of her legal fees.”

Here, the matrimonial action had lingered for about four years when a settlement proposal was advanced last August. The husband initially rejected the proposal, only to accept a virtually identical bid six months later “at the lintel of the courthouse door,” according to Dollinger.

“Based on the fact that the final settlement nearly mirrors the conference recommendation and that the feeble objections raised by the husband after the conference were on issues that had either been previously settled, or were factually unsustainable, this court can only conclude that the husband’s rejection of the August 2013 settlement was a delay tactic,” Dollinger wrote. “The husband was motivated solely to have the wife expend additional legal fees which had the practical effect of reducing her final pay out from this divorce.”

Dollinger found “little guidance on the standards for a ‘bad faith’ failure to accept a settlement or bad faith in negotiation of a matrimonial settlement,” and only one 60-year-old case where a matrimonial litigant demonstrated bad faith for making an unreasonably low offer and failing to produce a better offer (see Patino v. Patino, 283 AD 630, Appellate Division, First Department, 1954).

But he said two more recent cases—Blake v. Blake, 83 AD3d 1509 (Fourth Department, 2011), and D.L. v. K.G., 41 Misc3d 1231 (Kings County Supreme Court, 2013)—seemingly support the proposition that the failure to accept a reasonable matrimonial settlement can justify payment of legal fees under the DRL.

“While this court concludes that bad faith motivated the husband’s rejection of the August 2013 settlement proposal (which alone could justify additional fees), the fact that he has failed to pay more than $37,000 in child support clinches the argument,” Dollinger wrote.

The wife was represented by Lewis Heisman of Underberg & Kessler in Rochester. La Marr Jackson of Harris, Chesworth, O’Brien, Johnstone & Welch in Rochester appeared for the husband.