R.A., Plaintiff, v. U.A., Defendant. (2024)

Plaintiff-Wife moves by notice of motion ¹ seeking, inter alia, an award of counsel fees under motion sequence 002. (Wife's MSN 002 [NYSCEF Doc. No. 25]). Defendant-Husband opposes the application and asks this Court to dismiss this application “because it fails to comply with the attorney fee application requirements of the Civil Rules for Supreme and County Courts.” (Husband's affm. in opp. at 1 [NYSCEF Doc. No. 30]).

DISCUSSION

The Wife is seeking pendente lite counsel fees incurred in connection with this matter. Specifically, she seeks $19,450.00 for fees already incurred by her and at least $10,000 for prospective fees. The Wife argues based upon the reasoning in Charpie v Charpie that the “less monied spouse should not have to spend down their assets to have representation comparable to the monied spouse.” (Wife's affm. in supp. at 2 [NYSCEF Doc. No. 26]). Domestic Relations Law § 237(a) provides in pertinent part that,

Pursuant to Domestic Relations Law § 237 (a), a court in a divorce action may award counsel fees to a spouse “to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and the respective parties.” Section 237 replaced section 1169 of the Civil Practice Act, and -- significantly -- omitted the word “necessary” which had preceded the phrase “to enable the wife to carry on or defend the action.” This omission left the courts with flexibility when considering applications for counsel fees [․]in exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions. (De Cabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]; see e.g., O'Shea v Oshea, 93 NY2d 187, 193-194 [1999]).

Plaintiff argues that “while Defendant's family owns various properties and hotels, and Defendant has a six-figure income as a teaching medical doctor for the last few years, Plaintiff barely makes ends meet, paying for all of her daughter's care.” (Wife's memo. of law at 4 [NYSCEF Doc. No. 28]). The Plaintiff further expresses that Defendant has been “obstructionist” in this litigation and “may further justify an award of counsel fees.” (Wife's memo. of law at 4 [NYSCEF Doc. No. 28]). (See Saslow v Saslow, 305 AD2d 487, 489, 758 [1st Dept 2001]).

In Defendant-Husband's Affirmation in Opposition, Defendant argues that this Court “must dismiss this application because it fails to comply with the attorney fee application requirements of the Civil Rules for Supreme and County Courts.” (Husband's affm. in opp. at 1 [NYSCEF Doc. No. 30]). Defendant correctly notes that the Plaintiff failed to file a net worth statement in connection with this counsel fees application. Additionally, Defendant argues that the Plaintiff failed to file a retainer agreement and although Plaintiff's moving papers cite to attached net worth statements for 2022 and 2023, none were attached. For these reasons, the Defendant argues, and this Court agrees that Defendant cannot “substantively respond to [P]laintiff's application for attorney fees since Plaintiff's application fails to supply documents to detail her financial situation.” (Husband's affm. in opp. at 2 [NYSCEF Doc. No. 30]).

This Court recognizes that Plaintiff failed to provide a compliant Net Worth Statement, a Retainer Agreement, or her Income Taxes in her moving papers, as noted by Defendant's Affirmation in Opposition. (Husband's affm. in opp. 1-3 [NYSCEF Doc. No. 30]). Although Plaintiff subsequently responded and attached her Retainer Agreement, Net Worth Statement, and Income Taxes for 2022 and 2023, these financial documents must have been attached to the Plaintiff's original moving papers. These documents may not be offered in reply papers to remedy their failure to be included in the original moving papers. (See Crocker C. v Anne R., 26 N.Y.S.3d., 29 [NY Sup. Ct. 2015]). 22 NYCRR 202.16(k) sets forth the necessary contents of any application for attorney fees:

[T]he following requirements shall govern motions for ․ counsel fees ․ (2) No motion shall be heard unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section.

The proper course of conduct where a party fails to include the statement of net worth required pursuant to 22 NYCRR 202.16(k) is “to decline to hear the motion, or to deny it without prejudice to renewal upon compliance with the applicable requirements.” (Daich v Daich, 153 AD3d 900, 901 [ 2d Dept 2017]) (citing, Matter of Fischer-Holland v Walker, 12 AD3d 671, 672, 784 [2d Dept 2004]). Decisions in which counsel fees were awarded in situations where those key financial documents were lacking have been held to be an “improvident exercise of discretion to award such fees where there is no supporting documentation.” (Lazich v Lazich, 189 AD2d 750, 752 [2d Dept 1993]).

Accordingly, because the Plaintiff did not attach the statutorily necessary and required financial documents in her moving papers, the Plaintiff's application is facially and fatally defective, and her motion is DENIED without prejudice.

CONCLUSION

Based on the foregoing, it is hereby:

ORDERED, that the Wife's Order to Show Cause under motion sequence 002 is DENIED without prejudice and leave to refile seeking the same relief with the proper statutorily required documentation and made by order to show cause as it unequivocally required under this Part's Rules.

This constitutes a decision and order of this Court.

FOOTNOTES

1.   This Part has previously, and under these circumstances, would find it appropriate to deny this motion for being filed improperly. This Part's rules clearly require all motions be brought by order to show cause. The Wife's application ignores this rule completely. Notwithstanding, as addressed infra, the application fails for another procedural defect.

Ariel D. Chesler, J.