NEUSCHOTZ v. PLLC (2019)

Order, Supreme Court, New York County (Michael L. Katz, J.), entered on or about July 25, 2017, which denied defendant husband's motion for pendente lite counsel fees, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered on or about July 25, 2017, which granted plaintiff wife's application to modify the parties' judgment of divorce by awarding her sole legal custody of the children of the marriage, unanimously dismissed, without costs, as moot, as the children are now emancipated.

The trial court providently exercised its discretion in denying defendant's motion for a further award of counsel fees on the eve of trial on the ground that defendant took a position that resulted in unnecessary litigation (see generally Domestic Relations Law §§ 237(b) and 238).  The trial court found that defendant's claims of parental alienation, raised in defending against plaintiff's application for sole legal custody, were wholly without merit and that he was not a credible witness.  Upon review of the record, we find no basis for disturbing this determination, which is accorded deference (Silberman v. Silberman, 216 A.D.2d 41, 41–42, 627 N.Y.S.2d 392 [1st Dept. 1995], appeal dismissed 86 N.Y.2d 835, 634 N.Y.S.2d 438, 658 N.E.2d 216 [1995] ).  Moreover, at the time of the hearing, the children were either emancipated or nearing emancipation, and defendant acknowledged before the court that he did not expect a resumption of his parental access, given the children's ages and hostile disposition toward him.  We note that, by granting plaintiff's application for legal custody, the trial court simply allowed the status quo in effect since 2014 pursuant to a so-ordered stipulation to continue.  Upon the particular “equities and circumstances” of this case (see Havell v. Islam, 301 A.D.2d 339, 347, 751 N.Y.S.2d 449 [1st Dept. 2002] [internal quotation marks omitted], lv denied 100 N.Y.2d 505, 763 N.Y.S.2d 811, 795 N.E.2d 37 [2003] ), and bearing in mind that defendant had already received $ 120,000 in interim counsel fees, we find that, plaintiff's superior financial position notwithstanding, an additional award of counsel fees is not warranted.

We have considered defendant's remaining contentions and find them unavailing.