Sara Barkon v. Hanoch Barkon (2012)

MEMORANDUM OF DECISION ON MOTION # 209

The parties divorced in 2008 and have engaged in protracted postjudgment litigation.   In an October 31, 2011 written decision, this court awarded the plaintiff $7,500 in attorney's fees to defend against the defendant's appeal of this court's July 6, 2011 decision to award plaintiff attorney's fees in a successful prosecution of a contempt motion (motion # 163).   The defendant's appeal remained pending until December 13, 2011 ¹ when the appellate court dismissed said appeal for failure of the defendant to timely file transcript documentation.   The plaintiff now requests this court order a pro-rated payment for the legal services tendered by plaintiff's counsel regarding the appeal.   In support of said request, the plaintiff's attorney has filed an affidavit outlining his actual work and time spent on the appeal prior to its December 13, 2011 dismissal.  (See May 3, 2012 Attorney's Affidavit Re:  Counsel Fees–Postjudgment.)

The defendant counters that no substantive time or effort was expended on the appeal by plaintiff's counsel and therefore the defendant should not be obligated to pay the plaintiff any appellate attorney's fees.   The plaintiff credibly testified that she paid her attorney $2,100 to defend the appeal.   The plaintiff accurately testified that the present appeal at issue was the third appeal filed by the defendant with the first two appeals being previously withdrawn by the defendant.   In its October 31, 2011 decision, in awarding appellate attorney fees to the plaintiff, this court concluded “the defendant views the ongoing postjudgment court proceedings as a form of recreational litigation.

Having reviewed plaintiff counsel's affidavit, plaintiff's testimony and having carefully considered both counsels' arguments, the court hereby orders that the defendant pay the plaintiff $1,500 for incurred appellate attorney fees, said payment shall be made within fourteen days from today's date.²

Bernadette Conway, Judge

FOOTNOTES

FN1. The plaintiff represented the appeal was dismissed on December 5, 2011.   The record reflects that the appellate court, in a November 22, 2011 order, gave the defendant until December 6, 2011 to file the requisite transcript information.   When no filing occurred the appeal was dismissed on December 13, 2011..  FN1. The plaintiff represented the appeal was dismissed on December 5, 2011.   The record reflects that the appellate court, in a November 22, 2011 order, gave the defendant until December 6, 2011 to file the requisite transcript information.   When no filing occurred the appeal was dismissed on December 13, 2011.

FN2. Footnote 7 of the court's October 31, 2011 decision reflects the defendant's credible assertion that he has the ability to pay the disputed attorney fees..  FN2. Footnote 7 of the court's October 31, 2011 decision reflects the defendant's credible assertion that he has the ability to pay the disputed attorney fees.

Conway, Bernadette, J.