Pro Se Spouse Ordered to Pay Fees for Divorce Trial

, New York Law Journal

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A husband who represented himself in a divorce and "engaged in obstructionist conduct" that led to a 12-day trial—including several days of cross-examining his wife—has been ordered to pay her attorney fees at trial.

"This case highlights the difficulties that arise when one party uses their self-represented status as both a sword and a shield in an attempt to gain undue advantage and behaves in a manner that the court would never tolerate from an attorney," said Suffolk County Justice H. Patrick Leis (See Profile) in G.T. v. A.T., 31425/2011.

Geeta Joshi-Tope and Achyut Tope's divorce trial should have lasted no more than four days, the judge said. Instead, Tope took four days to cross-examine his wife, making her legal fees at trial balloon to $10,965.

After factoring in credit they owed to each other, Leis said Tope owed Joshi-Tope a total of $6,957 in all.

"Simple justice dictates that the defendant who chooses to function from a position of anger and resentment, not be allowed to purposely drive up the plaintiff's counsel fees and act in such an inappropriate manner, without being made responsible for all of the trial fees," Leis said.

He redacted the parties' names in his ruling, but the Law Journal was able to identify the parties from other sources.

Joshi-Tope, 50, filed for divorce in November 2011. She consults on engineering work, making $46,000 a year in gross income.

Her husband, Tope, a 53-year-old former engineer, voluntarily left employment in 2005, when he was earning about $90,000, the judge said. He has not held a job since, instead choosing to manage real estate properties.

According to the judge, Tope believed by constantly refinancing existing properties to buy more properties, he would make the couple rich. Instead, the refinancing put the couple in debt. Joshi-Tope said her husband's continual refusal to find a job was a significant factor in the deterioration of their marriage.

Before trial, the parties settled several issues, such as child custody and the split of real estate properties.

The only issues the parties couldn't settle before trial were debts, such as mortgages, credit cards and legal fees, said Joshi-Tope's attorney, Steven Homayoon, a solo practitioner from Lake Ronkonkoma.

On the eve of trial last summer, Tope moved to recuse the judge, alleging Leis had been disrespectful of the parties' culture and faith, had repeatedly pressured Tope to retain counsel, and coerced and threatened him. Tope threatened to complain to the Commission on Judicial Conduct if the judge did not recuse himself.

"The motion's threatening words, tone and nature were calculated to intimidate the court into removing itself from the matter to avoid a complaint being made to the Commission," Justice Leis said.

Leis denied Tope's recusal motion, finding it frivolous.

Tope began trial with a lengthy opening statement, "which had no relevance to the proceeding, dealt exclusively with his own self-serving perceptions and in essence called on the plaintiff to reconcile with him."

'Aggressive, Hostile' Manner

During Tope's four-day cross-examination, he improperly testified during most of it and refused to follow direction when asking his wife questions, the judge said. Tope also disregarded the judge's rulings when he sustained objections and continued to pursue subjects that were prohibited.

"The defendant engaged in arguments with the court concerning its rulings, failed to follow its instructions and shouted at the plaintiff's counsel in an aggressive, hostile and disrespectful manner as well as yelled at the plaintiff when he cross examined her," Leis said.

Meanwhile, Joshi-Tope was taking time off work during trial, nearly exhausting her vacation and sick time while paying her attorney by the hour, the judge said. He noted that at one point Tope threatened "we'll be in court forever."

Tope has remained unemployed and self-represented and "has suffered no pecuniary consequence by prolonging and delaying the matter," Leis wrote in his ruling.

Joshi-Tope paid her first attorney an $8,000 retainer, which was virtually depleted early in the case by her husband's emails, letters and phone calls to her attorney and demands for "emergency meetings," Leis said.

"When the defendant was not bombarding the plaintiff's prior counsel with correspondence and depleting her retainer, the defendant refused to negotiate or even communicate with the plaintiff through her prior counsel," Leis said.

By the time Joshi-Tope discharged her first attorney, to appease her husband, they had attended few court appearance and the parties had exchanged little discovery.

She paid Homayoon a $1,275 retainer and then an additional $2,000. Leis said Homayoon's charge of $215 an hour was "extremely reasonable" given his experience, his efforts during the arduous divorce and the results.

"Mr. Homayoon maintained his composure and forcefully argued the plaintiff's positions providing the plaintiff with the ability to stand up to a man, who the credible evidence established, had intimidated and attempted to control her life for the better portion of the parties' marriage," Leis said.

Under Domestic Relations Law §237, there's a rebuttable presumption that attorney fees shall be awarded to the "less monied spouse."

Even though he is unemployed, Leis found Tope capable of working full-time and earning at least $90,000. Meanwhile, Joshi-Tope continues to earn less than $50,000 a year.

"Despite the husband's protestations to the contrary, an objective view of the record, including his imputed future earnings, shows that he is in a superior financial position," Leis said.

When awarding fees, the judge said, the court should also consider any delay incurred as a result of a party's obstructionist tactics.

"As a result of the defendant's lack of clarity in his presentation of evidence and the rambling nature of his post trial memorandum, the court was required to order numerous days of trial testimony in an effort to search the record for any evidence supporting the defendant's amorphous positions, thereby delaying this decision," the judge said.

Therefore, Leis said, the husband is ordered to pay his wife's counsel fees.

When reached by the Law Journal, Tope declined to comment.

In an interview, Homayoon said he only billed his client for court appearances and did not charge for phone calls or Tope's "constant stream of emails" that he otherwise would have billed.

"The guy was unrelenting," he added. "I've tried cases with pro se [litigants] but never to this level. It wasn't a profitable case for me. I didn't make anything at the end of the day."

However, he said his client wouldn't have been represented if he had charged his normal rates.

"It was gratifying what the judge said. He showed some appreciation," Homayoon said. "It may not have been financially fulfilling, but it was worth it."

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