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Newell v. Hudson3/16/2005
answered and filed a counterclaim alleging that Newell had committed legal malpractice by failing to serve interrogatories upon or depose her former husband, secure documents reflecting the status of certain investment accounts as of the date of filing of the divorce action, have an expert conduct an analysis of the assets acquired during the course of the marriage, and attempt to reopen the divorce settlement at her request. These failures, Hudson claimed, resulted in her"accept a settlement which was woefully insufficient in terms of both alimony/spousal support and equitable distribution."
In her deposition taken in the malpractice action, Hudson repudiated her January 31, 2001 testimony pertaining to her understanding of the settlement agreement and the fact she might be awarded more or less alimony if the case went to trial, the fairness of the agreement, the voluntary manner in which she had entered into it, her belief that the alimony provided under the agreement would permit her to maintain her standard of living, and the degree to which Newell discussed the settlement and answered her questions in a satisfactory manner. In essence, Hudson testified that her sworn testimony to Judge Locascio, which she understood was being offered to obtain his approval of the settlement, was false. Hudson also stated during her deposition that during the course of her marriage she was aware of all of her own, her former husband's, and their joint assets; she was unable to identify any asset that would have been discovered had Newell requested the discovery cited in her counterclaim.
On November l9, 2003, Newell filed a motion for summary judgment to dismiss Hudson's counterclaim, attaching the settlement agreement, transcripts of the two hearings before Judge Locascio, Hudson's June 7, 2000 certification filed in the divorce action, and portions of Hudson's deposition transcript. Hudson cross-moved for an in limine order to bar reference to her allegedly false testimony during the divorce settlement. In opposition to Newell's motion, she presented a July 16, 2003 report of Robert B. Cherry, Esquire and a November 13, 2003 report of Stephan C. Chait, CPA. Following oral argument, by order of February 5, 2004, Judge Quinn granted Newell's summary judgment motion and denied Hudson's in limine motion, stating:
This is a case for a legal malpractice saying that [Hudson] wasn't adequately advised as to the impact of the Crews decision.
As indicated in the moving papers, [Hudson] as an accountant was completely familiar with all of the financial information that would be relevant for purposes of the divorce and indeed, from that time to the present time, no non disclosed income has ever been forthcoming. So the fact that the lawyer didn't conduct discovery is really not relevant. This information was known to Ms. Hudson and her husband. There's no dispute then and there's no dispute now that that information would have changed or was in any way inadequate.
[Hudson] now maintains that the alimony should have been more and should have been permanent lthough quite frankly, the award in the property settlement agreement was more than the pendente lite alimony and certainly more than the expenses of [Hudson] as reflected in the case information statement.
The deposition testimony of [Hudson] is interesting because quite frankly, it is completely at variance with her sworn testimony at the hearing in connection with this case. At the hearing in the case, [Hudson] clearly testified that she understood what she was entering into and that's what she wanted the Court to do, to approve.
his Court finds that Judge Locascio accurately described [Hudso
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