1
IN
THE CIRCUIT COURT OF THE 11TH
JUDICIAL
CIRCUIT, IN AND FOR
DADE
COUNTY, FLORIDA
FAMILY
DIVISION
CASE
NO.: 93-13312 FC 16 (PJ)
IN RE: THE MARRIAGE OF:
SYBIL ZISKIND
n/k/a SYBIL HART,
Petitioner/Former Wife,
and
DAVID ZISKIND,
Respondent/Former Husband.
The
above-style cause came on for hearing
before the
HONORABLE MAYNARD GROSS, Circuit Court
Judge, at
Dade County Courthouse, 73 West Flagler
Street,
Miami, Florida, on Friday, December 4, 1998,
at 9:00
a.m.
GOLDMAN,
NACCARATO, PATTERSON & VELA (305)
545-8434
2
1. APPEARANCES:
ROBERT
HOFFMAN, P.A.
2. [By Robert
Hoffman, Esq.]
5975
Sunset Drive, Penthouse 802
3. Miami,
Florida 33143
On behalf
of the Respondent/Former Husband
4
5. LAW OFFICES
OF MARKS & WEST, P.A.
[By Evan R. Marks, Esq.]
6. NationsBank Tower, Suite 2700
100 S.E. Second Street
7. Miami,
Florida 33131
On behalf of the Petitioner/Former
Wife
8.
9.
10.
INDEX
11. WITNESS
12. DAVID ZISKIND
Direct Examination by Mr. Marks Page 6
13. Cross-Examination by Mr. Hoffman Page 15
14. SYBIL HART
via telephone
Direct Examination by Mr. Marks Page
17
15. Cross-Examination by Mr. Hoffman Page
20
Redirect Examination by Mr. Marks Page 28
16. Recross Examination by Mr. Hoffman Page 29
17
EXHIBITS
18. PETITIONER/FORMER WIFE'S IN EVIDENCE
- PAGE MARKED
19. COMPOSITE
EXHIBIT NUMBER 1 8
[Family
Law Financial Affidavit for
20. David Ziskind]
21
22
23
24
25
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
3
1.
THEREUPON:
2.
The
following proceedings were had:
3.
MR. MARKS: I have no
objection going forward
4.
with the proceedings.
When my client is on the phone,
5.
she can join us.
6.
THE COURT: Please
announce your appearances.
7.
MR. MARKS: My name
is Evan Marks from the law
8.
firm of Marks & West, and we represent the
9.
petitioner/former
wife, Sybil Ziskind.
10.
MR. HOFFMAN: Robert
Hoffman representing the
11.
former husband,
David Ziskind.
12.
THE COURT: This is a
motion for temporary attorney’s fees.
13.
MR. MARKS: Your
Honor, we both filed motions
14.
for temporary attorney's fees in this case. And I
15.
would submit that the evidence will
show that the
16.
former
wife who makes, pursuant to her financial
17.
affidavit,
approximately $38,000 a year and supports
18.
three
children is not in a better ability -- does not
19.
have a better ability to pay for attorney's
fees than
20.
the
former husband who makes $46,000 and only has
21.
himself
to support. The testimony that we will
present
22.
will
be the testimony of my client as to her needs,
23.
her
financial affidavit -- and both financial affidavits
24.
will
be introduced into evidence -- the testimony of
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
4
1.
the husband. And we
also subpoenaed the husband's – I
2.
don't know if it's his wife or his girlfriend. It is a
3.
woman who lives with him who also contributes to the
4.
support. And we will submit that the contribution is
5.
additional
income. When we conclude, we are going
to
6.
be asking this court to award temporary attorney's fees and costs.
7.
MR.
HOFFMAN: The evidence is clearly going to
8.
show
that there is not a substantial disparity.
The
9.
evidence
is going to show that the husband recently
10.
earned around $45,000 and the wife earns about $30,000.
11.
The wife moved from Florida to Texas for a better job
12.
opportunity depriving the husband of any visitation
13.
with
the children. The Court should
sanction her
14.
contemptuous
behavior. When she moved from Miami,
15.
she
was the one in contempt of the final judgment,
16.
providing
for visitation every other weekend,
17.
reasonable
telephone contact every weekend, Passovers,
18.
etc Since she moved to Texas, the father has
not. seen
19.
the
children. There is ample case law; St.
Pierre,
20.
Powell,
Mettler and Clerc that the Court can consider
21.
the party's willful refusal to comply with existing
22.
\ court orders if that conduct made further litigation
23.
necessary. The
evidence will show that Dr. Ziskind had
24.
to file a motion post-judgment. The records will show
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
5
1. that the
former wife further moved to restrict
2. telephone
contact. And this court expanded the
final
3. contact
order for her to allow the father to have
4. telephone
contact twice a week. There is
presently
5. pending
before the Court, a motion for contempt, that
6. she
hasn't complied with that provision allowing for
7. telephone
contact between the father and the children.
8. The
case law is very clear that the need for attorney's
9. fees
is present. She had counsel before Mr.
Ziskind,
10. when
Mr. Marks was attempting to depose him.
It was
11. only
after I appeared and made an amendment to the
12. motion
for modification that the wife later sees the
13. idea
that she is going to attempt to get attorney's
14. fees
from the father. It's the husband's
position that
15. she
is trying to thwart visitation. It has
been the
16. wife's
intention all along to make this a time
17. consuming
matter, and all in order to deprive her
18. husband
of any visitation. And the Court should
19. sanction
her contemptuous conduct and willful
20. contemptuous
behavior. Laughing at the Court's idea
of
21. shared
parental responsibility, she picks up without
22. the
permission or approval of the former husband and
23. just
moves the children to Texas. And the
record will
24. show
she has had increasing income, starting from
25. $16,000
to, currently, $38,000. And we are
going to
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
6
1.
show
you, Judge -- this is hard to believe -- she is
2.
going to spend $31,000 a year on vacations. This is
3.
not a
person who does not have the ability to secure
4.
counsel. Her motion should be denied, and the husband
5.
should be awarded attorney's fees to be paid
for by the
6.
former
wife.
7.
MR. MARKS: Judge, I
didn't interrupt him. I
8.
must tell you that
none of what he said I agree with.
9.
And that
the issues before the Court today are just
10.
temporary
fees, not whether she left properly or not
11.
which
is the subject of their petition. We
have a
12.
counter-petition
for modification of child support and
13.
for
sole parental responsibility. And those
are
14.
factual
matters that you will have to hear.
15.
Right
now, where are we? I call Dr. Ziskind.
16.
Thereupon
17.
DAVID ZISKIND
18.
after having been first duly sworn, was called as a
19.
witness on behalf of the Petitioner,
and was examined
20.
and
testified as follows:
21.
DIRECT
EXAMINATION
22.
BY MR. MARKS:
23.
Q. Please state
your full name.
24.
A. My name is
David Ziskind.
25.
Q. Where do you
reside at?
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
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1.
Q. 721 Amherst Avenue, A_H_M_E_R_S_T_ in
Davie,
2.
Florida.
I have been residing there for a year and a
3.
month
or two.
4.
Q. Do you own that place?
5.
A. Yes--- No1 I
rent. I reside with Nadine
6.
Mendehlson who is my
wife, and her daughter, Laurie
7.
Fierman, F-I-E-R-M-A-N.
8.
Q. How old is she?
9.
A. She's
fourteen.
10.
Q. When did you
and Nadine get married?
11.
A. In September.
12.
Q. Of this past
year?
13.
A. Yes.
14.
Q. During the
pendency of these proceedings?
15.
A. Yes
16.
Q. Did you go on
a honeymoon?
17.
A. No.
18.
Q. Did you buy her an engagement ring?
19.
A. No.
20.
Q. Who pays the rent?
21.
A. We do.
22.
Q. When you say 'we do', who pays it?
23.
A. A. I submitted a financial affidavit and it is on
24.
that.
25.
Q. Let me show you a copy of that. Can you
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
8
1.
identify that as a copy of your financial affidavit?
2.
A. Yes.
3.
MR. MARKS: Your
Honor, I move that financial
4.
affidavit into evidence as the first exhibit.
5.
THE COURT: Any
objection? Okay, without
6.
objection.
7.
[Thereupon, the Family Law Financial Affidavit
8.
for David Ziskind was marked as Petitioner's Composite
9.
Exhibit Number 1 in Evidence.]
10.
BY MR. MARKS:
11.
Q. It says on
page three of your financial
12.
affidavit that the rent is $850.
13.
A. No. It says
that I pay $850.
14.
Q. How much is
the rent?
15.
A. Seventeen
hundred dollars.
16.
Q. You pay half
of the rent?
17.
A. Yes.
18.
Q. The number
for electricity.
19.
A. The number
for electricity is also half.
20.
Q. Are the numbers for water, telephone and
21.
repairs
also half?
22.
A. Yes.
23.
Q. You have listed $300 for food and
household
24.
items,
$160 for meals outside the home, plus an extra
25.
$50 for
miscellaneous household for a total of $510 on
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
9
1.
page
four -- miscellaneous household and meals outside
2.
the home.
3.
A. Yes.
4.
Q. Is that for
one-half of those items?
5.
A. That's myself
6.
Q. So, you spend $300
a month just for yourself
7.
in food and household items?
8.
A. That's half
of the total amount. Meals
9.
outside
the home is what I spend at work for lunch.
10.
Q. The automobile expense of
$153. Is that a
11.
leased
car?
12.
A. It was.
13.
Q. It was a leased car?
14.
A. Yes
15.
Q. Do you have a car presently?
16.
A. Yes.
17.
Q. So what
happened at the conclusion of the
18.
lease?
19.
A. My wife
bought the car, converted the lease to
20.
whatever.
21.
Q. Your wife bought the car that you are
driving?
22.
A. What do you
mean that I'm driving?
23.
Q. This car that you were making payments
on,
24.
were
you driving that car?
25.
Sometimes,
yes.
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
10
1.
Q. How many cars are in the household?
2.
A. One.
3.
Q. You share this car?
4.
A. We use the
car to go to work together, because
5.
we work
in the same area. We have been car
pooling,
6.
and that is the one we have been using.
7.
Q. You drive this car to and from work at
the
8.
University of Miami.
9.
A. If we are both going there. If not,
then
10.
I take
the train.
11.
Q. How much was the car bought for at the
12.
conclusion
of the lease?
13.
A. I don't know the exact amount.
14.
Q. Your wife bought it?
15.
A. That is right.
16.
Q. The attorney's fees of $320 a month.
Have you
17.
been paying $320 a month?
18.
A. My attorney's fees -- this: is what I
estimated
19.
would
be my attorney's fees over the course of the
20.
year. I believe somewhere on this sheet is the
21.
instruction that this is an estimated monthly
average,
22.
not the amount for the month in which I
filled out the
23.
sheet.
24.
Q. So,
this number is
25.
not what you have
been actually paying?
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
11
1.
A. Sometimes
it's more.
2.
Q. Isn't it true that Nadine has been
paying your
3.
attorney's
fees?
4.
A. No.
5.
THE COURT: We have
Mrs. Hart on the phone.
6.
Can we
put her on the speaker phone? Good
morning,
7.
Mrs.
Hart. This is Judge Gross. We have just
8.
commenced
the temporary attorney's fees hearing.
And
9.
your
former husband is in the process of testifying,
10.
okay
-- just to bring you up to date.
11.
MS.
HART: Yes.
12.
BY MR. MARKS:
13.
Q. How much have you spent for attorney's
fees to
14.
date?
15.
A. I'm not sure of the exact amount.
16.
Q. Is it your testimony that your wife has
not
17.
paid
any attorney's fees on your behalf?
Is that
18.
correct?
19.
A. That is correct.
20.
Q. Please look at page--- I am sorry.
Before we
21.
do
that, the automobile that your wife purchased, is
22.
that
titled in her name?
23.
A. Yes.
24.
Q. And she had a separate bank
account?
25.
No.
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
12
1.
Q. Do you have any joint bank
Accounts?
2.
A. No.
3.
Q. Have you transferred any
money to her in the
4.
last
twelve months?
5.
A. What does transferred
mean?
6.
Q. Given any money to her or
put any money in her
7.
bank
account?
8.
A. We pay the rent with one
check.
9.
Q. So you put $850 a month in
that account?
10.
A. I put more than that.
11.
Q. How much money do you put
in her account each
12.
month?
13.
A. Most of the time, I cash
all of my paychecks,
14.
because
I'm probably – I’m concerned that my account
15.
might
be--- I don't know what the term is.
16.
Q. Garnished?
17.
A. I have debts. They might do something to
18.
hold
my account, so I don't leave a lot of money in it.
19.
I cash
it out. And most of the time I put that
money
20.
into
my wife's account, because she's paying the bills
21.
that
are for both of us.
22.
Q. So you filed an action
originally in this case
23.
seeking
to declare that you were not the paternal
24.
father
of your youngest---
25.
MR. HOFFMAN: I object to this. This is a
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
13
1.
matter
that was brought up---
2.
MR.
MARKS: I withdraw the question.
3.
MR.
HOFFMAN: Mr. Marks wants to bring
up this
4.
at
every hearing to try to influence the
5.
Court.
It has not been brought up by the former
6.
husband.
Since then, it has been brought up at every
7.
hearing.
He moved that it be res judicata.
8.
MR.
MARKS: In his opening statement, he
9.
complained
of lack of telephone contact. It's in
our
10.
answer
that he caused a problem with the children by
11.
alienating them. He does not want to--- I
withdraw
12.
the question.
13.
THE
COURT: The question is withdrawn.
14.
BY MARKS:
15.
Q. How much money do you have
in cash on hand?
16.
A. Forty dollars on me.
17.
Q. And in the bank?
18.
A. Right at this second?
19.
Q. Yes, sir.
20.
A. About $80
21.
Q. And your present paycheck
is how much?
22.
A. My present paycheck?
23.
Q. Your present paycheck from
the University of
24.
Miami
is how much net?
25.
A. I don't know what my net
is, because I don't
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
14
1.
know what the tax rate is going to be. Where is that?
2.
My net is $2484.
3.
Q. This $438,
does that come from your check
4.
directly?
5.
A. Yes.
6.
Q. And it is your pattern, or I should say,
your
7.
habit
to, when you get your paycheck, to cash the check
8.
and
then to deposit the money in your wife's bank
9.
account?
10.
A. No. I pay off bills or put it into my wife's
11.
account
for her to pay them.
12.
Q. Do you write
checks yourself, sir?
13.
A. Yes.
14.
Q. What bills do
you write checks for?
15.
A. I write
checks for some of the utilities.
16.
Sometimes, I write
checks for Florida,
Power & Light.
17.
Sometimes for the telephone. Sometimes for the trash.
18.
Sometimes for water.
19.
Q. What does
your wife do for a living?
20.
A. She' 5 a data manager.
21.
Q. What is her salary?
22.
A. She's working
as a temp worker at the
23.
University
of Miami.
24.
Q. What is her
salary?
25.
A. Her
salary? I don't know. It depends on how
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
15
1.
many hours. She is
making $18 an hour.
2.
Q. Is it your
testimony --
3.
That
just started a few weeks ago. Until
4.
then
she was making $10 an hour.
5.
Q. Is it your testimony that she supports
herself
6.
and
her daughter and you support yourself?
7.
A. Is it my testimony?
8.
Q. Do you contribute to her support and the
9.
support
of the child, or
10.
MR.
HOFFMAN: Object to the form of the
11.
question.
You must answer.
12.
A. What am I answering? I support myself in
13.
answer
to your question
14.
MR. MARKS: I have nothing further of this
15.
witness.
16.
CROSS-EXAMINATION
17.
BY MR.
HOFFMAN:
18.
Q. How long have you worked -at the
University of
19.
Miami
in your present capacity?
20.
A. I have been there
since September of '97.
21.
Q. And --
22.
A. That
capacity is: I’m a research assistant
23.
professor.
24.
Q. Prior to your
earning in excess of $40,000
25.
with the University of Miami, when was the last time
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
16
1. you earned
in excess of $30, 000?
2. MR. MARKS: Objection, as to relevancy.
3. BY MR.
HOFFMAN:
4. Q. What was your income last year?
5. A. Is that in here?
6. Q. Page two.
7. A. Last year, my net income was
approximately
8. $38,000.
9. Q. And at the time of the dissolution of marriage
10. in '94,
what were you employed as?
11. A. I was a substitute teacher at that
time. And
12. I think
that was $8 an hour
13.
Q. As to your
attorney’s fees, I think you
14.
previously testified to
the Court that you invaded your
15.
pension to pay fees; is
that correct?
16.
A. I'm sorry?
17.
Q. Did you invade your pension to pay a
portion
18.
of your attorney’s fees?
19.
A. Actually, it's not a pension. The first year
20.
here you are on the
faculty at the University of Miami,
21.
it some type of savings
plan. That first year, I had
22.
access to the
money. After the first year, I don't. I
23.
did cash that out, that
faculty savings
24.
Q. Do you know what your outstanding
obligation
25.
to me is?
17
1.
The last time I got a
statement, it was
2.
approximately $2,900. It
is more than that now
3.
MR. HOFFMAN: I have nothing further, now
4.
THE COURT: The next witness is Dr. Hart
5.
Thereupon:
6.
SYBIL HART
7.
was called as a witness
on behalf of the Petitioner,
8.
and was examined and
testified as follows via
9.
telephone:
10.
DIRECT EXAMINATION
11.
BY MR. MARKS:
12.
Q. Please state your name.
13.
A. Sybil Hart.
14.
Q. Where do you reside?
15.
A. 2521 22nd Street, Lubbock, Texas.
16.
Q. With whom do you live?
17.
A. Who am I speaking to?
18.
Q. This is Evan Marks.
19.
A. I live with my three children.
20.
Q. Their names and ages, please?
21.
A.. A, 17; L, 15; and N, 10.
22.
Q. Okay.
Do you have a copy of your Family Law
23.
Financial Affidavit that
you signed back on June 24, (INSERT Perjured Financial Affidavit Here)
24.
1998?
25.
A. Yes.
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
18
1.
Q. Was it true and correct at the time that
it
2.
was executed?
3.
A. Yes.
4.
MR. MARKS: I move that
into evidence.
5.
THE COURT: It is in the
Court file.
6.
BY MR. MARKS:
7.
Q. Have there been any significant changes
to
8.
this financial affidavit?
9.
A. Two small changes; my income has been
10.
increased, so that the monthly income is $63
more than
11.
it was previously.
12.
Q. Okay.
13.
A. And my rent has been increased by $200
per
14.
month.
I moved to a slightly larger home, and now I
15.
pay $1,400 per month.
16.
Q. What was the reason for your move?
17.
A. I was living in a three bedroom. Having come
18.
from the four bedroom, and A and L having to
19.
share a room caused
squabbles. A finally picked
20.
up and went in the
garage. The garage has no heat and
21.
air conditioning, and it is dirty. I was looking
22.
around to find a larger place and when I
found one--
23.
Q. You have, approximately, a $700 raise or
24.
increase in salary for the year?
25.
a. Yes.
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
19
1.
Q. And your rent has increased to $1,400 a
month?
2.
A. Yes.
3.
Q. Do you owe your attorney any money presently?
4.
A. Yes.
5.
How much do you owe your
attorney as of the
6.
last bill?
7.
A. I don't have that in front of me –
somewhere
8.
around $8,000.
9.
Q. Were these fees incurred throughout this
10.
pending litigation, the former husband's
prior
11.
petition, as well as, the amended petition?
12.
A. Yes.
13.
Q. And the money that you have paid your
lawyer,
14.
where did you acquire that from?
15.
A. I have been borrowing it from my
parents.
16.
Q. Do you have to pay that back?
17.
A. Yes.
18.
Q. And do you have a present need for your
former
19.
husband to contribute to
the payment of your
20.
attorney's fees?
21.
A. Yes. I have a present need. My children
22.
are demanding things
that they believe they're entitled to,
23.
being the daughters of two PhD’s. I am not able to
24.
explain to them why I
don't have it.
25.
Q. Have you had an increase in child
support
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
20
1.
since the final judgment
in '94?
2.
A. No, I have not.
3.
Q. And --
4.
A. I just keep one. Even though it occurred
to
5.
me that David was a PhD
and was earning substantially
6.
more money. I thought that David would have the
7.
dignity to come forward
and be helpful, especially with
8.
the oldest child who he
does seem to have some
9.
relationship with and
seems to be the one that he tells
10.
that he loves, that he
would at least be generous for
11.
the children
directly. And their bitterness stems
from
12.
that. I was trying to avoid litigation, because I
knew
13.
it would be expensive.
14.
THE COURT: Cross?
15.
CROSS-EXAMINATION
16.
BY MR. HOFFMAN:
17.
Q. This is Mr. Hoffman. Would you please
speak
18.
up a little?
19.
A. Yes.
20.
Q. You have never been required to come to
21.
Florida for any of these
legal proceedings, have you,
22.
since the divorce?
23.
A. No.
24.
Q. We have always allowed you to appear by
25.
telephone; is that right?
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
21
1.
A. There's only been one occasion.
2.
Q. Isn't it true that shortly after your
3.
dissolution of marriage
from Dr. David Ziskind, you
4.
told Larry (phonetic) Turner that if he
persisted in
5.
trying to see the children---
6.
MR. MARKS: Objection.
7.
THE COURT: The objection is sustained.
8.
MR. MARKS: You have to wait before you
9.
answer if I object. You have to wait for the Judge to
10.
rule. And listen to hear
if there is any objection.
11.
BY MR> HOFFMAN:
12.
Q. Did Mr. Marks represent you in the
divorce
13.
hearing?
14.
A. No.
15.
Q. When did you retain Mr. Marks?
16.
A. Last year when David sent us the
subpoena.
17.
So that was January
15, 98.
18.
Q. How much of a retainer did you pay at
that
19.
time?
20.
A. Five thousand dollars.
21.
Q. Where did you get that $5,000?
22.
A. From my parents.
23.
Q. Since then, how much have you paid him?
24.
A. Not very much. A few hundred dollars.
25.
Q. At the time of your move to Texas, isn't
it
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
22
1.
true that David was
granted by the Court, visitation
2.
consisting of every other weekend?
3.
MR. MARKS: Objection, relevancy.
4.
THE COURT: I am going to sustain the
5.
objection.
6.
MR. MARKS: Please---
7.
MR. HOFFMAN: The case law is very clear. The
8.
Court should consider if
her contemptuous conduct
9.
was the cause -- her
leaving -- was the cause for further
10.
litigation. The final judgment provided for a specific
11.
visitation. The case law, again, Powell's Third
12.
District Court case, 665
Southern 2d 1146, Mettler, and
13.
St. Pierre, 697 Southern
2d 218 all stand for the
14.
proposition that the
Court should consider the willful
15.
refusal to comply with
existing orders if that conduct
16.
made further litigation necessary for
enforcement. And
17.
that is exactly what we
are talking about. If she had
18.
never moved to Texas,
then we would never have to move
19.
for a post judgment
action. She precipitated this
20.
action. And I think evidence of that move should be
21.
introduced into the
record.
22.
MR. MARKS: Number one, she violated no court
23.
order or statute, or
there's no residency restriction
24.
in the final judgment,
so -- there's no court order.
25.
Number two, Judge, those cases apply not to
temporary
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
23
1. fees, but fees at the conclusion of the
case. And the
2 Court can consider all factors at the
time.
3 THE COURT: The objection is overruled---
4 Actually, it is sustained as to the
next line of
5 testimony.
6 BY MR. HOFEMAN:
7 Q. Isn't
it true that you moved to Texas for a
8 special employment opportunity?
9 MR. MARKS: Same objection.
10 A. (No
response)
11 BY MR. HOFFMAN:
12 Q. In
'95, weren't you earning approximately
13 $16,000, Mrs. Hart?
14 A. I
believe so.
15 Q. In
'96, were you then earning as a research
16 assistant, $24,650?
17 A. Yes.
18 Q. Then,
again, in '97, you got a raise when you
19 became assistant professor?
20 A. I
was unemployed previously. And then I got
21 this job.
22 Q. Isn't
it true you went from research assistant
23 to assistant professor?
24 A. I
was
25 Q. So,
you went from research assistant to
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
24
1.
unemployed to assistant
professor?
2.
A. Actually, no. Actually, more accurately
3.
called a post doctoral
student.
4.
Q. I just took that from your tax return.
5.
Currently, you are
earning $38,500 a year?
6.
A. Yes.
7.
Q. Let me direct your attention to your '97
tax
8.
return. Is it correct that you received over your
9.
$24,000 income, a refund
of approximately $2,300?
10.
MR. MARKS: Objection, Your Honor.
11.
A. My student loan was in default, so that wiped
12.
it out.
13.
Q. Let me direct your attention--- Excluding the
14.
$200 a month for clothes
for the children, is it
15.
accurate that you spend
$500 a month or $6,000 a year
16.
for clothes for
yourself?
17.
A. I don't think so.
18.
Q. So, when you put it on your financial
19.
affidavit, that was
inaccurate?
20.
A. Six thousand in clothes? Five hundred
21.
dollars, yes, that could
be.
22.
Q. In your financial affidavit, in addition
to
23.
$6,000 a year in
clothes, you spend $15,000 a year for
24.
summer camp?
25.
A. Well, that was a gifc from my parents.
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
25
1.
Q. But you included that in your
income - on
2.
your expenses at least?
3.
A. Well, it's true, I did. But maybe -- I don't
4.
know.
5.
Q. How do you differentiate the income that
you
6.
get?
7.
A. Let me make a statement.
8.
Q. Please answer the question.
9.
THE COURT: Just listen to the question.
10.
BY MR. HOFFMAN:
11.
Q. Please answer the question. Isn't it true
12.
that you don't
distinguish money that you get from your
13.
parents and the money
that you earn?
14.
A. No, that's not true
15.
Q. How can you tell the Court-- And you
16.
included in your
expenses summer camp?
17.
A. Summer camp is the children's Jewish
18.
education.
19.
Q. In addition to that, you spend $350 a
month or
20.
$4,200 a year for trips to Germany?
21.
A. Also -~ that is also not correct.
22.
Q. That is also incorrect?
23.
A. It sounds like I do it every year. My cousin
24.
had a Batmitzvah.
25.
Q. Weren't you in Germany the year
before? And
GOLDMAN,
NACCARATO, PATTERSON & VELA (305) 545-8434
26
1.
France?
2.
A. No.
3.
Q. How about the year before that?
4.
A. I went to a conference in France, and I
5.
presented a paper --
6.
Q. Did you visit your.parents when you were
7.
there?
8.
A. In France?
9.
Q. Yes.
10.
A. No.
11.
Q. How many times have you been to Europe
over
12.
the past five years?
13.
MR. MARKS: Objection.
14.
THE COURT: Sustained.
15.
BY MR> HOFFMAN:
16.
Q. In addition to the summer trips, you
indicate
17.
that you spend $600 a
month or $7,200 a year for long
18.
trips. Is that accurate?
19.
A. Can you repeat it?
20.
Q. On your financial affidavit, you
indicate that
21.
you pay $600 a month for long weekend trips.
22.
A. That's probably true
23.
Q. In addition to that, you list $400 a
month for
24.
trips to Miami. Is that accurate?
25.
A. Four hundred a month?
GOLDMAN, NACCARATO, PATTERSON & VELA (305) 545-8434
27
1.
Q. That is what your financial affidavit
shows.
2.
A. If one ticket is about $400, and I
calculated,
3.
I don't know how many
trips.
4.
Q. So, if we exclude--- You are spending $31,000
5.
on vacations for you and
the kids to visit family and
6.
to take long weekend
trips?
7.
A. The long weekend trips ar&
vacations.
8.
Everything else is either the children going
to camp or
9.
visiting my parents which is part of their
life. It
10.
was also my attempt to
send them to Miami at my
11.
expense to see their
father. And I paid for that. And
12.
I don't consider that a vacation.
13.
Q. You sent the kids last Summer?
14.
A. I sent them there last Christmas.
15.
Q. When was the last time besides that that
the
16.
kids saw their dad?
17.
A. A saw her dad in June in Miami.
18.
Q. This was on her way through Europe?
19.
A. A went to Israel. It's not on the way
20.
at all. In fact, the group that she went with went
21.
from New York. We went to Miami so that
22.
she could see her
family. It was not financially cost
23.
beneficial. She could have flown straight to Miami
24.
and back for the same
amount of money. And as for
25.
flying to Miami, I sent
her there, so that she could
GOLDMAN,
NACCARATO, PATTERSON & VELA
(305) 545-8434
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1.
see her family.
2.
Q. You think it's pretty important to take
3.
vacations?
4.
A. I object to the word vacation. I think
5.
it is important for them to maintain a bond
with their
6.
families. I think we need to be at a---
7.
MR. MARKS: Dr. Hart---
8.
THE COURT: Dr. --
9.
THE WITNESS: It's a statement of pride.
10.
THE COURT: Dr. Hart, would you please just
11.
listen to the questions, and direct your
answers
12.
specifically to the
questions?
13.
THE WITNESS: Tell him to stop calling it a
14.
vacation, please.
15.
REDIRECT EXAMINATION
16.
BY MR. MARKS:
17.
Q. Dr. Hart, your financial affidavit---
18.
This is Evan Marks speaking. Your£financial affidavit
19.
shows a total net income
of $2,412, but expenses of
20.
over $8,000. How do you survive from month to
21.
month?
22.
A. My parents have been very generous.
23.
Q. So, notwithstanding--- Strike that.
24.
MR. MARKS: I have nothing further.
25.
MR. HOFFMAN: I have one further, yes.
GOLDMAN, NACCARATO, PATTERSON & VELA (305)
545-8434
29
1.
RECROSS-EXAMINATION
2.
BY MR. HOFFMAN:
3.
Q. Prior to this action, post judgment
action,
4.
how much did your parents contribute to you
every year?
5.
MR. MARKS: Objection, as to the relevancy.
6.
THE COURT: Sustained. You don't have to
7.
answer the question.
8.
MR. MARKS: I know we are short on time. I
9.
had another witness that I'm not going to
call. Can
10.
we have a brief closing, or do you not need a
closing
11.
statement?
12.
THE COURT: If you want to make one.
13.
MR. MARKS: I have to give my testimony as to
14.
my fees and rates. I want to proffer that I am a board
15.
certifhec family
lawyer. I have been practicing law –
16.
in my 18th year. And I charge $250 an hour.
17.
My associate charges
$100 an hour My client owes
18.
in excess of
$8,000. I expect an addittional $5,000
to be
19.
incurred.
Now, I also expect to have a need for costs,
20.
to be incurred in the
deposItions, and transcripts, and
21.
subpoeoas, and the like. And we request a cost
22.
deposit, as well. So that is what exists now, Judge.
23.
You know any award you
make to us is appreciated. And
24.
I expect between the
$8,000 and the $5,000 minimum that
25.
I am going to need, and
a cost deposit -- a thousand
GOLDMAN, NACCARATO, PATTERSON & VELA (305)
545-8434
30
1.
dollars for costs.
That's a minimum that we need.
2.
Whatever this court awards, we will
appreciate. If he
3.
wants to cross-examine my costs or rates---
4.
THE COURT: Brief closing?
5.
MR. MARKS: Judge, I think you can see from
6.
the evidence in the financial affidavits
that one
7.
person supports three children. Four people being
8.
supported on $38,000 is not the same as one
person
9.
supporting himself on $45,000, plus the fact,
as he
10.
candidly saId, that he cashes his checks and
it goes
11.
right into either paying
bills or into his wife's
12.
account, that he has a greater ability to
contribute to
13.
the wife's temporary attorney’s fees and
should be
14.
required to do so.
15.
MR. HOFFMAN: The cases are very clear. There
16.
has to be ability to
secure counsel. She testified she
17.
had $5,000 to walk into his office. The cases I have
18.
are founded at a
four-to-one ratio- -but not here.
19.
And frankly, the wife's
expenses, yes, they are very
20.
high.
Her opinion is that I have to spend money. She
21.
doesn’t want to call it
vacations, because she wants to
22.
take such trips and send
her children to Israel. And
23.
the fact that my client is making only
slightly more
24.
than her does not qualify her for attorney's
fees. I
25.
know the court's
opinion, the statute on attorney's
GOLDMAN, NACCARATO, PATTERSON & VELA (305)
545-8434
31
1.
fees, 61.16, and, also, without justification
2.
and refusing to file the court order, the
Court may not
3.
award for temporary
attorney's fees. There was a week
4.
of visitation, then she
is gone. What is Dr. Ziskind
5.
to do? It may be that she didn't directly be in
6.
contempt of any order,
but it's indirect, and there is
7.
no visitation if she goes away. That, and considering
8.
her expenses of $31,000
for trips, I think her motion
9.
should be denied
10.
I would like an
opportunity to present the
11.
husband's motion at a
different date.
12.
THE COURT: I am going to find that despite
13.
the fact that the disparity is not a
two-to-one ratio
14.
or -- as you would suggest, there is stIll a
disparity
15.
of income taking into
consideratIon the expenses
16.
related to the children. I think there is demonstrated
17.
by competent substantial evidence, a need for
an award
18.
of temporary attorney's fees and an ability
to pay on
19.
the part of Dr. Ziskind.
20.
Based on your estimate
of approximately 20 hours,
21.
I am going to award 10
hours at $250 per hour
22.
for a total of $2,500 plus $500 in
costs. I find $250
23.
to be reasonable.
24.
MR. MARKS: To be paid
when?
25.
THE COURT: I will give him to the end of this
GOLDMAN, NACCARATO, PATTERSON & VELA (305)
545-8434
