Lincoln v. Lincoln (2013)

In this high conflict post-judgment of divorce matter, we represented a father who had negotiated, together with his former wife, a modification of the previous child custody and child support terms. The parties reached an oral settlement agreement in which each party would have custody of one child, and neither party would owe child support to the other. Both parties began acting consistently with the changes they had agreed to. Unfortunately, as soon as the deal was struck, the former wife reneged. She refused to put the terms of agreement into a Consent Order. Further, while she stopped paying any money towards the child no longer in her custody, former wife sought Probation enforcement of the existing child support order, which meant the father paid 100% of the costs for the child in his custody, but Probation continued to enforce the previous support order for both children. Former husband thus paid three times what he had paid before, and former wife accepted the windfall as if it were coming to her. The trial court granted a plenary hearing on the issues in controversy. We called the former husband and the children’s Guardian ad Litem as witnesses. Former wife refused to testify. The trial judge found former husband and the GAL to be credible witnesses; determined that the parties had made an enforceable oral agreement; and directed the former wife to reimburse former husband for $20,000 of overpaid child support, plus a $5,000 counsel fee award based on former wife’s bad faith and unreasonable positions taken. The case is now on appeal by the former wife, fully briefed by both sides. We await the Appellate Division’s decision.

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