Insurance Issue in Long-Running Divorce Battle Unresolved

, New York Law Journal

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A judge in Rochester has awarded counsel fees of $12,500 to a non-prevailing party in a matrimonial action, finding the "unique facts" of a lengthy and ongoing dispute warrant a departure from standard practice.

In the most recent of two lengthy opinions, both resulting from what Acting Supreme Court Justice Richard Dollinger (See Profile) viewed as vague rulings from an appellate panel, the judge said denying Carmen Lomaglio counsel fees would violate "this court's ultimate sense of fairness." But Dollinger stopped short of holding the former husband, Larry Lomaglio, in contempt.

Lomaglio v. Lomaglio has been up and down the judicial ladder twice, and if no settlement is reached, could be headed for a third round before the Appellate Division, Fourth Department. It centers on a 1998 divorce and lingering issues over the husband's obligation to provide health insurance in perpetuity.

Records show that as part of the 1998 divorce settlement, Larry Lomaglio agreed to pay maintenance to his former wife for 18 months.

In 2000, the Fourth Department in Lomaglio v. Lomaglio, 273 AD2d 823, directed Larry Lomaglio to provide his estranged wife with the same medical benefits he had provided during the marriage, but did not say how long he would have to pay the premiums.

Lomaglio paid the premiums for eight years. But when he stopped paying her health insurance, Carmen Lomaglio took him to court.

Dollinger, in a 2012 decision (NYLJ, May 21, 2012), held that the Fourth Department's 2000 order was vague and did not clearly require non-durational health insurance coverage. But Dollinger went a step further and said that if the appellate court had in fact ordered Lomaglio to pick up health insurance premiums beyond the 18-month period in which he was required to pay spousal maintenance, it erred.

Earlier this year, the Fourth Department reversed Dollinger, holding in Lomaglio v. Lomaglio, 104 AD3d 1182, that the husband must provide the "same" coverage that he provided during the marriage (NYLJ, Mar. 21). Again, Dollinger said the decision from the appeals court was imprecise.

"[I]t is unclear, in this court's mind, whether the Appellate Division expressly requires that this court order the husband to provide 'permanent' medical insurance coverage to his wife," Dollinger wrote in his latest decision, Lomaglio v. Lomaglio, 2013 NY Slip Op 23438. "For some reason, the higher court, when asked to advise this court on whether its 2000 decision was 'ambiguous,' has simply instructed this court to 'do what you were told to do' and not specified exactly what it wanted done."

Nonetheless, Dollinger said, he "can only conclude" that the 2000 and 2013 Fourth Department decisions require Larry Lomagio to permanently provide the "same" health insurance that was provided when the Lomaglios were married. But Dollinger said he cannot do that because there is no evidence of what the pre-divorce medical coverage entailed. Dollinger said there is no proof of the type of coverage that was available to the wife during the marriage.

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