Campbell v Campbell
Annotate this CaseDecided on December 5, 2016
Supreme Court, Monroe County
Joanne K. Campbell, Plaintiff,
against
Thomas W. Campbell, Defendant.
2006/14338
Maurice J. Verrillo, Esq.
Attorney for Plaintiff
Rochester, New York 14614
Richard Curtis, Esq.
Attorney for Defendant
Rochester, New York 14610
Richard A. Dollinger, J.
More than three years ago in this case, the court decided an application by the former husband against a non-cooperative spouse and invoked an old adage - "if at first you don't succeed, try, try again." Well, all those "trys" resulted in a "try-al,"[FN1] a denouement to a long struggle - characterized by three prior written opinions from this court — by a gearhead [FN2] to get his vintage "rides"- and other unresolved distributions of marital property - in order.
In this matter, this court had previously ordered the ex-wife to take certain steps regarding items of personal property that the husband was awarded during the resolution of their divorce. The items included linens, family keepsakes and certain photographs and other paraphernalia. [*2]Perhaps the most significant missing items were a series of registrations for vintage automobiles. When the items turned up missing shortly after the divorce was concluded, this court ordered the wife, who apparently misplaced or destroyed the registrations, to either produce them or pay the costs associated with reproducing them. When the wife failed to produce the registrations and other personal items, this court held her in contempt, permitting a purging of the contempt by certain actions to deliver the missing personal items and reproduce the missing registrations. The Court ordered a hearing on damages and further penalties if she did not. The court also imposed a $25 per day fine for failing to produce the car registrations and advised that she could purge that fine by complying with the court's prior directives. Not surprisingly, the former spouse defaulted under the terms of the order and this court convened a hearing to further decide what steps were necessary to enforce its prior decrees.
At the hearing, the former husband testified, but this court adjourned further testimony to allow a vehicle appraiser to appear and testify as to the process of restoring registrations for the vintage cars, which were 1970s Porsches. During the initial hearing, the husband testified without challenge that he was owed $1546.93 for an unsold timeshare and this court concluded that he was entitled to judgment for that amount. In addition, the husband produced an appraiser who testified about the missing personal property. This court, prior to the hearing, had directed that if the wife, who without dispute at one time was in control of all the items of personal property, could not account for this missing property, then the husband could describe the property to the appraiser and the court would be bound by the appraiser's valuations based on the husband's description of the property. At trial, the appraiser testified, without contradiction, that the missing linens and table cloths were valued at between $12,670 and $15,020. The items included a self-propelled mower, a series of antique linens, table cloths and doilies and a personal photo quilt with family photos contained on it. In addition, the appraiser valued 42 photographs depicting racing cars, drivers and racing venues, including two featuring the husband and deceased actor and fellow racing enthusiast Paul Newman, two with Peter Gregg, the deceased four-time winner of the 24 Hours at Daytona and Hurley Haywood, a winner of the 24 Hours of Le Mans. These photos, according to the appraiser, were rare collector items and while the husband presence in the pictures may have diminished their value to all collectors, they were valuable as keepsakes for the husband. The appraiser gave a range of $2000 - $3500 for these missing photographs.
The husband also identified a series of Revere cookware that had been allegedly poached by the wife, right down to the missing egg poacher. The appraiser valued these items, many of which were no longer commercially available, at $1800. In the cross-examination of the appraiser, the wife's counsel attacked the valuations, arguing that the appraised had not actually viewed the disputed items. However, as noted earlier, the court had directed that if the wife failed to produce the items, the husband's description of them would be the basis for the appraiser's valuation, a notion that the court approved because otherwise, the wife, who could not account for the items, would be in a position to undercut their value by contesting their condition at the time of the divorce. The husband forwarded the expert's report on the value of the missing items and, despite an objection, the valuation report was admitted.
This court concludes that value of the appraised items is reasonable and fair. However, the appraiser was unable to quantify the exact values of the linens and the missing photographs. [*3]This court notes while the photographs of Newman, Gregg and Haywood have intrinsic value, the inclusion of the husband in the photographs diminishes their fair market value to collectors. For these reasons, the court accepts the lower end value placed on these items and awards the husband $12,670 for the value of these missing items.
The replacement of the Porsche registrations involves an exploration into some of the unique aspects of German-engineered automobiles. According to the vintage car expert produced by the husband at the second day of the trial, the vehicle identification numbers (VIN) for vintage Porsches are hidden from view of the passer-by and the vehicles must be dissembled to determine the number. In addition, because of the vintage nature of the vehicle, the inspection to uncover the VIN must be conducted under the supervision of the state police or other authorized representative to insure the accuracy and authenticity of the vehicle. The expert testified that the seven-vintage vehicles were located in a facility and had to be removed, towed to his shop, dissembled, inspected by the state trooper, re-assembled and then returned to the storage facility. The services to certify the VINs and restore these registrations were estimated by the expert as costing $7,170.66. During cross-examination, the expert acknowledged that he had known the husband for 25 years but other than that fact, there is no proof of any bias, no evidence that the replacement routine described by the expert - and the costs associated therewith - are unwarranted for vintage Porsches and no evidence of any less costly alternative. For these reasons, the court concludes that the husband has established by the preponderance of the evidence that the value of obtaining the replacement registrations is $7,170.66 and he is awarded judgment for that amount.
In considering the process to date, this court cannot ignore the per diem fine imposed in its earlier court decision for the failure to produce the vehicle registrations. This provision was designed to obtain the former wife's cooperation in obtaining the registrations and other personal property. Now, with the trial complete, this court notes that the fine, imposed in a 2013 order, totals more $25,000. There is no evidence before this court that suggests any mitigation of that fine is necessary or appropriate. However, this court, in an exercise of its equitable powers, caps the fine under that provision of the order at the amount owed for the replacement of the Porsche registrations and thus awards the husband an additional $7,170.66 for the overdue fines under the prior court order. No further amount can be collected for fines under the prior court.
The Court still finds the wife in contempt of court. All of the prior measures that allowed a purging of the contempt have been unavailing. The wife remains in contempt. This Court upon receipt of an arrest warrant, will execute it and deliver it to the husband for enforcement.
Finally this Court considers the husband's request for attorneys fees. This Court notes that this application is not governed by the court rules contained in 22 NYCRR §202.16 (k). This section expressly excludes motions made pursuant to Section 237(c) or Section 238 of the Domestic Relations Law for counsel fees for services rendered by an attorney to secure the enforcement of a previously granted order or decree. Id. Hence, the usual requirement for submission of a statement of net worth and compliance with other requirements from the rules of the courts is not required to justify a fee award here. In addition, because these applications are not governed by 22 NYCRR § 202.16 (k), the requirements for disclosure of the hourly rate, the amounts paid or to be paid and the other details required by subdivision (3) of that provision are also not required to justify a fee.
Freed from the constraints of the court rules, the attorneys fee award in this instance is governed by the general principles of fee awards in non-matrimonial circumstances. The fees permitted are those which represent the "reasonable value of the services rendered." NYCTL 1998-1 Trust v. Oneg Shabbos, Inc., 37 AD3d 789 (2nd Dept. 2007); RMP Capital, Corp. v. Victory Jet, LLC, 40 Misc 3d 1243 (A) (Sup. Ct. Suffolk Cty. 2013). The fixation of lawyer's fees is to be determined on the following factors: time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer's experience, ability and reputation; the amount involved and benefit resulting to the client from the services; the customary fee charged by the Bar for similar services; the contingency or certainty of compensation; the results obtained; and the responsibility involved. In re Freeman's Estate, 34 NY2d 1 (1974).
In this matter, the husband was represented by two attorneys from the same firm. The amount in fees and disbursements charged to the husband is $8,561.25. The first attorney was a seven-year associate at a firm well-known for its high-levels of matrimonial practice. The second attorney from the same firm is a veteran of 36 years of practice, largely in the matrimonial area with extensive trial experience throughout New York State. Both attorneys have strong reputations in this practice area. The fees charged are consonant with the experience of the attorneys, the hourly rates are usual and customary for this area of practice and the overall fees are reasonable and fair. While the services were not unusual, they were competently and efficiently presented, resulting in a significant benefit to the husband. The Court notes that the wife was given time to challenge these fees but, as appears to be pattern in the last stages of this litigation, she did not participate. Her attorney, who appeared without his client at the last day of hearing, responded and questioned certain entries in the billing statements. However, the first four entries challenged relate to the substitution of counsel and new counsel's appearance in the matter. These entries only consumed 1.1 hours of legal effort and the Court, relying on its own 28 years of experience as a trial attorney, concludes that these "commencement of representation" fees are not unexpected or unreasonable. The wife's counsel also challenges fees related to an information subpoena and this Court declines to award those fees which total $357.50. The wife's attorney also objected to the charges for an amended judgment but, as the billing records indicate, the husband's counsel did not charge for those services. The husband is awarded a judgment for attorneys fees, which are incidental to collection of an equitable distribution judgment, in the amount of $8,203.75.
This Court hopes that this decision is the end of the road for this matter. To this litigant, it may seem a slow process to get registrations for fast cars. Presentation of a cumulative judgment for the fees and damages set forth in this decision will, the Court hopes, speed up the collection process.
Dated: December 5, 2016
Richard A. Dollinger, A.J.S.C. Footnotes
Footnote 1:The word "trial" was devised in late Middle English as a noun from Anglo-Norman French word "triet" or "to try" or from medieval Latin word "triallum." The word, as a description of court proceedings, is first recorded in the 1570s and was extended to any ordeal by 1590s. http://www.etymonline.com/index.php?term=trial. The embrace of trials to settle disputes is most often, in English jurisprudence, ascribed to King Henry II in the 12th Century. Van Caenegem, The Birth of the English Common Law, 2d Ed., 1973. This matter, while long delayed in its resolution, was not on Henry II's original docket but, if it had been, it would be well past current "Standards and Goals," according to the New York State Office of Court Administration.
Footnote 2:The Court uses the term "gearhead" in a colloquial slang context which describes an individual as "totally into cars and is very knowledgeable" about them. http://www.urbandictionary.com/define.php?term=gearhead. The other use of the term describes someone who is a "devotee of cars and car racing." http://www.dictionary.com/browse/gearhead
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