C.P., Plaintiff–appellant, v. D.M., Defendant–respondent. (2026)

Order, Supreme Court, New York County (Jeffrey H. Pearlman, J.), entered on or about April 2, 2025, which, to the extent appealed from, directed plaintiff wife to pay defendant husband $10,000 in interim post-judgment counsel fees, unanimously reversed, on the law, without costs, and the award of counsel fees to defendant vacated.  Order, same court and Justice, entered on or about April 4, 2025, which ordered plaintiff to pay 50 percent of the cost of the retainer for the forensic evaluator, unanimously reversed, on the law, without costs, and the order vacated.

In a prior decision, we affirmed Supreme Court's confirmation of the arbitrator's report which, among other things, concluded that defendant remained the monied spouse, even after trial (see Pincus v. Motulsky, 237 A.D.3d 624, 234 N.Y.S.3d 9 [1st Dept. 2025] ).  In a subsequent decision, we likewise affirmed Supreme Court's exercise of its discretion in denying defendant's request for counsel fees, “given the totality of the circumstances, including the relative financial positions of the parties and the merits of their respective positions” (C.S.P. v D.T.M., 250 A.D.3d 521, 522, 261 N.Y.S.3d 484 [1st Dept. 2026] ).

Before Supreme Court could grant defendant's motion and award interim counsel fees, it was obligated to make a determination that defendant was now the less monied spouse based on changed circumstances, and that his financial circumstances and the relative merits of the parties' positions warranted an award of counsel fees, either on the record or in the order (Domestic Relations Law § 237[b];  see DeCabrera v. DeCabrera–Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 [1987];  Charpié v. Charpié, 271 A.D.2d 169, 171–172, 710 N.Y.S.2d 363 [1st Dept. 2000];  see also Frankel v Frankel, 2 N.Y.3d 601, 605, 781 N.Y.S.2d 59, 814 N.E.2d 37 [2004];  Prichep v. Prichep, 52 A.D.3d 61, 858 N.Y.S.2d 667 [2d Dept. 2008] ).  Here, the record only reflects a summary award of fees without regard to any fact-finding determination on the merits of defendant's claim pursuant to Domestic Relations Law § 237(b).  Accordingly, the award of fees is hereby vacated.

Supreme court improvidently exercised its discretion in ordering an updated retainer and additional fees for which plaintiff would be 50 percent responsible. In a prior order entered on or about May 24, 2024, Supreme Court denied defendant's request for a forensic evaluation, concluding, among other things, that the hearing was limited to a determination of parenting time for the parties' then 161/212-year-old youngest child, and not modification of legal custody.  The questions regarding parenting time did not present sharp factual disputes upon which the report of a court-appointed forensic examiner could have shed light, and there were no allegations of mental health issues of either the child or the parents where a forensic would be helpful (see Matter of Keyes v. Watson, 133 A.D.3d 757, 758, 21 N.Y.S.3d 263 [2d Dept. 2015], lv denied 26 N.Y.3d 919, 2016 WL 699461 [2016] ).  There is nothing in the record reflecting any substantially changed circumstances warranting modification of the order.

Motion to strike portions of plaintiff's reply brief, or alternatively for leave to file a sur-reply brief, denied.