Faina P., Plaintiff, v. Alexander S., Defendant. (2025)

PROCEDURAL HISTORY

The parties executed two stipulations on November 12, 2019 — one resolving custody and parenting time [NYSCEF No.6] and the other resolving finances and all ancillary issues between them [NYSCEF #7] — these stipulations were subsequently incorporated but not merged into a Judgment of Divorce signed on February 28, 2020 [NYSCEF #5]. An amended judgment of divorce was signed on June 2, 2023 [NYSCEF #554] and entered in the Office of the Clerk of the County of Kings on June 14, 2023 [NYSCEF #555] after motion practice and the Court granting leave to amend in a written decision dated March 30, 2023.

Based on the parties' stipulation of settlement, the parties previously shared joint legal custody of the parties' one child of the marriage: a son, Z, who is nine (9) years old (DOB December 2015).

Notice Of Right To Be Represented By Counsel

The Court has made extensive records on each court appearance as to the right to counsel and the risks of proceeding self-represented. The Court has found that the defendant, who is an attorney licensed to practice law in the State of New York, is not eligible for the assignment of counsel. The Court notified the defendant on the record of the Office of Self-Represented and the location in the Kings County Supreme Court and defendant was provided with lists of Bar Associations referral panels and the New York State Court's website of resources: www.nycourts.gov.

The plaintiff-mother commenced post-judgment litigation by filing an order to show cause for contempt because the defendant-father had not paid basic child support in over a year. Thereafter, the defendant, self-represented, filed a borage of cross-applications ranging from application to retroactively downwardly modify his child support obligation so that he would have no arrears of child support to seeking contempt against the mother for denying him access time to the pet cat, alleging that the mother was in contempt of the parties' agreement not to disparage the other parent because she filed an enforcement application and objecting to the attorney for the child meeting with the child.

Procedural History

The Court has issued numerous written decisions and orders including those dated April 18, 2022. [NYSCEF #101; Faina P. v. Alexander S., 75 Misc.3 701]; decision and order dated March 30, 2023 [NYSCEF #441; Faina P. v Alexander S., 78 Misc 3d 1225(A)], inter alia, decision and order dated August 16, 2023 [NYSCEF #561; Faina P. v. Alexander S., 80 Misc 3d 1208(A)]; and decision and order granting the mother's application for a change of custody and award of sole legal custody dated October 21, 2024 [NYSCEF #586; Faina P. v. Alexander S., 84 Misc 3d 1218(A)].

All the prior decisions must be read in conjunction with this decision for the full procedural history and nature of the applications filed in this extensive post-judgment litigation which resulted in the counsel fee application that is now before the Court. Based on the allegations in defendant's filings, the mother eventually sought a change of custody and an award of sole legal custody to her asserting that the defendant recalcitrantly refused to abide by the decision-making protocols detailed in the parties' stipulation of settlement. The plaintiff's application was granted by written decision and order after evidentiary hearing [NYSCEF #586; Faina P. v. Alexander S., 84 Misc 3d 1218(A) [Kings County, October 21, 2024].

The plaintiff-mother sought counsel fees for enforcement pursuant to DRL 237 and counsel fees pursuant to DRL 238 by order to show cause dated September 13, 2022 [motion sequence #8]. Plaintiff also sought an award of counsel fees for defending against defendant's cross-applications on the basis that these applications were noxious, frivolous and only made to retaliate against her for seeking enforcement of defendant's child support obligation as agreed to by the parties in their stipulation of settlement.

Defendant never disputed plaintiff's claim that he had not paid any basic child support in more than a year, rather he argued that his child support obligation should be "vacated" retroactively to the date of the parties' stipulation of settlement for a myriad of reasons all of which the Court found lacking any basis in law or fact in the prior written decisions and orders. For the full breadth of defendant's specious arguments for why his child support obligation should be retroactively vacated all the prior decisions must be read.

In response to plaintiff's effort to enforce the child support obligation defendant consented to in the parties' stipulation of settlement, the defendant filed numerous motions alleging that the plaintiff had also "violated" the parties' stipulation of settlement. The defendant's allegations against the plaintiff which, inter alia, ranged from his contention that she was jeopardizing the child's enrollment in private school when it was the defendant who refused to pay the private school tuition but insisted that the child should stay in the school and that the mother should pay the full tuition and where the mother demonstrated that she had not withheld access to the parties shared pet cat as alleged by the defendant and that she is, in effect, not fostering his relationship with the child by seeking enforcement of his child support obligation even though she knows that he now has another child.

Defendant steadfastly asserts that there is no legal basis for him to be financial responsible for plaintiff's counsel fees she incurred to enforce the unpaid child support which he concedes he did not pay until after she sought enforcement and that it is plaintiff's "fault" that she incurred counsel fees because she could have agreed to terminate his child support obligation when he asked her to so that she would not have had to incurred any counsel fees. Defendant argues that plaintiff started the post-judgment enforcement application so she should be responsible for any counsel fees she incurred because she did not agree to his terms to resolve the matter — ie, to terminate his child support obligation — asserting that had she agreed to his proposal she would not have incurred counsel fees.

Prior Findings of Income

At the time of the divorce, the plaintiff was employed as a sales administrator. In recent post-judgment litigation the defendant moved for a downward modification and the Court found that the plaintiff was still the less-monied spouse earning approximately half of the income that the defendant earned (see Faina P. v. Alexander S., 78 Misc 3d 1225(A)[Kings Supreme, March 30, 2023]).¹ At this time, that judicial determination remains the law of the case. She is represented by private counsel.

Defendant is an attorney licensed to practice in New York State who has been employed at various New York City law firms during this litigation where it appears he was earning annual income of approximately $90,000 to $150,000 depending on the law firm where he was employed at a given time. The Court found that, contrary to defendant's representation, at the time of his application for a downward modification he was earning more income than he was earning at the time the parties entered into their stipulation of settlement in which they acknowledged that the sum consented to was a downward deviation from the presumptive Child Support Standards Act calculation (see Faina P. v. Alexander S., 78 Misc 3d 1225(A)[Kings Supreme, March 30, 2023]).Nonetheless, defendant represented during the evidentiary hearing on counsel fees that he recently "lost his job". Plaintiff contends that defendant was "fired". Plaintiff contends that defendant manipulates his employment situation to attempt to gain an advantage in the litigation.

The Court made findings as to the parties' income and that defendant was the monied spouse in prior decisions and orders as detailed above. Defendant appeared self-represented throughout most of this post-judgment litigation except for a brief period when he was represented by Yuriy Yaroslavskiy, Esq. from May 2022 to September 2022 when defendant discharged him as his attorney of record in [NYSCEF #251].

Sanctions

The Court noted in prior decisions that the nature and number of the motions filed by defendant — an attorney admitted to practice law in New York — raised concerns that the defendant may be attempting to utilize his law license to "wear down" the plaintiff who, before she lost her job at some point during the post-judgment litigation, earned one half of his income and who had been forced to incur substantial counsel fees seeking to enforce the parties' stipulation of settlement. Based on the defendant's filing the plaintiff sought sanctions against him arguing that the defendant was filing frivolous motion after frivolous motion to force the plaintiff to "settle" under the weight of counsel fees and to accept his demands. The Court referred the issue of sanctions pursuant to 22 NYSCRR 130.1 to the within evidentiary hearing in the decision and order dated May 31, 2023 [Faina P. v Alexander S., 78 Misc 3d 1225(A)].

Interim Counsel Fee Award

The Court initially addressed plaintiff's application for counsel fees in the decision and order dated May 31, 2023 [NYSCEF #529] in which the Court noted that pursuant to DRL 238, the Court may award counsel fees in enforcement applications for support arrears (DRL 244) and that there was no dispute that defendant unilaterally and without any legal justification refused to pay his basic child support obligation to the plaintiff which forced plaintiff to incur counsel fees to making and defending her enforcement application. Inasmuch as the plaintiff sought both counsel fees for enforcement pursuant to DRL 238 and counsel fees for defending against what she characterized as frivolous motions by defendant pursuant to DRL 237(c) and the Court found that it must make findings related to the totality of the applications, the issue of a final award of counsel fees was referred to "the evidentiary hearing where plaintiff shall provide, on notice, an accounting of the counsel fees related to enforcement and any counsel fees related to the balance of the applications" [Faina P. v Alexander S., 78 Misc 3d 1225(A) *28]; however, the Court found that:

an interim award of counsel fees toward the final award of counsel fees is appropriate so that defendant's litigation tactics, in effect, do not "starve out" plaintiff's ability to participate in the evidentiary hearing where defendant — an attorney — is not incurring any counsel fees to continue in this litigation whereas plaintiff has incurred, according to her attorney's affirmation, nearly $100,000 from motion practice that started based on her application to enforce child support" [id. at *29].

The Court awarded plaintiff interim counsel fees for enforcement in the sum of $15,000. As such, that sum has been reduced from the counsel fee sum plaintiff requests. Plaintiff's counsel represented on the record that the interim award of counsel fees had not been paid and had been reduced to a money judgment.

Counsel Fee Accounting

Plaintiff's counsel provided an accounting of counsel fees dated June 21, 2023 [NYSCEF #556] detailing that plaintiff had incurred $137,060.85 "due almost exclusively to the Defendant's failure to abide by the child support order he agreed to, and the Defendant's various meritless application". In that accounting, plaintiff's counsel provided the following:

"a. $51,153.60 has been expended in fees related to Plaintiff's Order to Show Cause for enforcement and contempt related to Defendant's failure to pay child support (MS#003);

b. $5,920.00 has been expended in fees to Defend against Defendant's Order to Show Cause for contempt related to alleged violations of the Parties' Custody Agreement (MS#004), ultimately the court found this application to be without merit;

c. $5,520.00 has been expended in fees to defend against Defendant's meritless and retaliatory Tort Action in which he alleged Plaintiff had given him a venereal disease, Defendant ultimately withdrew this frivolous action;

d. $1,000.00 has been expended in fees to defend against Defendant's Petition for Modification of Child Support in Family Court, ultimately Defendant's application was consolidated with the instant supreme court action, and the application for modification was rejected by this court;

e. $14,920.00 has been expended in fees to defend against Defendant's Order to Show Cause seeking to renew and reargue the April 18, 2022 (MS#7), Decision of this Court, Defendant's application was ultimately rejected as meritless;

f. $26,189.75 has been expended in fees to defend against Defendant's second Order to Show Cause seeking to hold the Plaintiff in contempt for alleged violations of the parties Custody Agreement, and in support of Plaintiff's Cross Motion to modify legal custody (MS# 10 & 11). While the court found no merit to the Defendant's application for Contempt, the court has ordered a hearing as it relates to the Plaintiff's application for modification of custody;

g. $5,250.00 has been expended in fees regarding Plaintiff's application for counsel fees (MS#9);

h. $5,040.00 has been expended in fees to defend against Defendant's Order to Show Cause to have your affirmant disqualified as counsel, an application which the court found had no merit;

i. $6,120.00 has been expended in fees to defend against Defendant's Order to Show Cause to have the court recuse itself (MS#13), an application which the court found had no merit;

j. $6,040.00 has been expended in fees as it relates to Plaintiff's application to Quash the Defendant's overbroad, irrelevant, and procedurally defective subpoena (MS#16);

k. $4,670.00 has been expended in fees to defend against the Defendant's second Order to Show Cause to renew and reargue;

l. $5,237.50 has been expended in fees on miscellaneous matters."

Defendant initially filed no opposition to that accounting.

The Court issued a scheduling order dated January 4, 2024 [NYSCEF #564] including that "[t]he Court believes that defendant must be provided an opportunity to respond to plaintiff's submission and then determine if a hearing is still necessary to decide the issue of counsel fees".

Defendant filed an affirmation in opposition, dated February 16, 2024, to the counsel fee accounting submitted by plaintiff [NYSCEF #565] asserting that plaintiff's bills were vague and inconsistent and required a hearing. Defendant argued that he could not be required to pay more than $130,000 in counsel fees because "Plaintiff had only allegedly paid $15,500 to her attorneys" because, he alleged, her attorneys "would not have been working for free" [NYSCEF #565, pp. 2-3]. Plaintiff further alleged that the bills provided were "barebone" and objected that plaintiff's counsel "filled multiple entries for drafting without any detail about what was actually drafted, including detail of the motion, related legal arguments and length of papers" [NYSCEF #565, p. 3] and that entries for "legal research" did not detail what legal issue was being researched [NYSCEF #584, p. 63]. He detailed numerous other objections to the counsel fees sought including objecting that the bills included inconsistent fonts [p. 4] and objecting to paying for counsel fees for uploading documents to NYSCEF and for billing for preparing for trial when ultimately there was no trial. He asserted that he should have no financial responsibility for counsel fees incurred "voluntarily" by plaintiff including fees she incurred seeking to modify custody as a result of the numerous applications he filed against her after she sought enforcement of child support or the $5,520 in counsel fees related to the tort action he commenced against plaintiff for allegedly giving him a venereal disease because he discontinued that action when she provided proof that she had not done so.

Furthermore, defendant asserted that plaintiff's counsel engaged in legal malpractice when they agreed to represent the plaintiff in the post-judgment enforcement application "knowing full well that both Plaintiff and Defendant have limited financial means and no additional money to spend on this case"² and requested that the Court hold a hearing because he "challenges, opposes and objects to Plaintiff's exorbitant and unsubstantiated counsel fees" [NYSCEF #565, p. 10] asserting the billing detailed by plaintiff were too "intertwined" to be deciphered between what was for plaintiff's enforcement application from those incurred by her to defend against his applications against her and requested that the Court deny, in full, plaintiff's application for counsel fees.

Evidentiary Hearing Required

After reviewing the parties' submissions, the Court determined that a hearing was necessary to determine the issue of counsel fees and set it down for an evidentiary hearing by written order, dated April 18, 2024 [NYSCEF #576]. The Court directed that the "testimony and documentary evidence must be delineated to the extent possible to differentiate between time spent in enforcement and time spent on other issues in this matter pursuant to the voluminous writing exception" [NYSCEF #576, p. 2].

Evidentiary Hearing

The evidentiary hearing on the issue of counsel fees was held on June 3, 2024 [NYSCEF #583], June 17, 2024 [NYSCEF #584] and July 19, 2024 [NYSCEF #585].

Plaintiff's counsel testified they were retained in October 2021 after plaintiff's prior counsel "had let her go to grievances that had been filed by the defendant against them" [NYSCEF #583, p. 30] and that since that time "[t]here have been a myriad of motions filed" and that while they were "initially retained to file an enforcement action due to the fact that [defendant] hadn't paid any child support in over a year in violation of the judgment of divorce and his settlement agreement with our client" but that "[defendant] filed various contempt motions with regards to the custody agreement" that required them to defend the plaintiff [NYSCEF #583, p. 31]. The record established that defendant has also filed a grievance against plaintiff's counsel alleging malpractice in their representation of plaintiff.

Plaintiff's counsel testified to a litany of motions filed by defendant that had to be responded to and represents that all of these allegations were ultimately found to be without merit by the Court but that plaintiff incurred unnecessary counsel fees to responding to these motions, preparing for and for court dates [NYSCEF #583, p. 31] all of which, plaintiff's counsel testified, were made more complex because defendant appeared pro se and then retained counsel only to relieve that counsel to once again appear pro se. During the time defendant appeared pro se he filed a grievance against plaintiff's counsel's law firm alleging malpractice in their representation of plaintiff and he also filed a tort action against the plaintiff asserting that she gave him a venereal disease which he subsequently withdrew when plaintiff provided proof that his claim was baseless [NYSCEF #583, p. 33]. Plaintiff's counsel argues that all of these motions were part of defendant's efforts to avoid his child support obligation by wearing plaintiff down so that she would discontinue the enforcement action.

Plaintiff's counsel testified that based upon the nature and extent of defendant's litigation that they "ended up cross moving for an application for [plaintiff] to have sole decision making due to the fact that decision making had become impossible because [defendant] refused to follow the custody agreement" [NYSCEF #583, p. 32].

Counsel testified that of the $137,068.85 in counsel fees sought, they were incurred as follows: $51,143.60 for the initial contempt motion seeking enforcement of child support; $5,920 incurred to defendant against defendant's first contempt motion against plaintiff involving defendant's objections to plaintiff obtaining dental care for the child; $5,520 "spent having defendant withdraw his frivolous tort action" [NYSCEF #853, p. 43]; $26,189.74 incurred related to plaintiff's application for sole legal custody; $5,237.50 miscellaneous; $1,000 to represent plaintiff in defendant's application to Family Court for modification responsive to her application for enforcement; $14,920 for representation related to defendant's motions to renew and reargue; $5,040 to respond to defendant's order to show cause seeking to disqualify their law firm from representing the plaintiff; $5,250 to file an order to show cause for counsel fees based upon frivolous filings by defendant; $6,120 to oppose defendant's order to show cause seeking for the Court to recuse itself; $6,040 for an order to show cause seeking to squash subpoena filed by defendant for failure to comply with CPLR 3120(3) and CPLR 3101(a)(4);³ and $4,670 to respond to another motion filed by defendant to renew and reargue another of the Court's decisions.

Plaintiff's counsel testified that in addition to being forced to oppose numerous and repetitive applications filed by defendant which often sought duplicative relief that plaintiff incurred additional unnecessary counsel fees because defendant was late for court appearances on more than one occasion [NYSCEF #583, p. 44].

On cross-examination, defendant posed numerous questions related to plaintiff's counsel's billing which focused primarily on why plaintiff's law firm utilized attorneys, not paralegals, to do various tasks such as filing documents with the Court, communicating with court reporters and process servers, and maintaining the case file. Plaintiff's counsel testified that she is part of a "small firm" and that "sometimes it's easier and faster if I, the attorney, who knows everything that needs to be filed files it then if I delegate certain things to a paralegal. Especially since in 2021 we were still operating partially hybrid. We would have to communicate via Teams because we weren't in the same office. So it just became a lot easier, faster, quicker, more efficient for our client if I filed certain " [NYSCEF #584, p. 39].

The Court sustained plaintiff's counsel's objection to defendant's extensive cross-examination related to why plaintiff's counsel did not delegate certain tasks to paralegals all the time [NYSCEF 3584, p. 40] noting that the inner workings of law office operations, especially in a pandemic or post-pandemic were not the issue before the Court and would not delve into the operational issues within the firm or reasons for litigation strategy.

Defendant cross-examined plaintiff's counsel as to a double entry on October 3, 2022, for oral argument for 2.5 hours of $1,000 each [NYSCEF #584, p. 63] which plaintiff's counsel conceded was an error.

On cross-examination defendant questioned plaintiff's counsel about the chart they submitted in compliance with the voluminous record rule [NYSCEF #584, p. 27]. Plaintiff's counsel testified during cross-examination that in addition to counsel fees sought for enforcement they sought counsel fees related to representation of plaintiff to oppose the numerous applications filed by defendant "[w]hat is relevant is whether or not there is merit to the application and whether or not the judicial system has been used by you, [defendant], to delay and have my client incur fees that were totally unnecessary" [NYSCEF #584, p.30]. Plaintiff's counsel further testified on cross-examination that the color-coded chart was provided because "given the fact that most cases don't have this amount of voluminous motion practice that we were dealing with, this was the way in which we believed was the clearest more transparent way to do this for the Court and for you, [defendant]" [NYSCEF #584, pp. 42-43].

Another central aspect of defendant's cross-examination of plaintiff's counsel was why the counsel spent time working on any given affidavit over multiple days instead of starting and completing it in the same day and why billing entries did not include details as to what "specific edits" were made each time there was an entry for "drafting" or "editing" any given document [NYSCEF #584, pp. 32-33]. Plaintiff's counsel testified that indicating "every minutiae [sic] of detail" would make the bills too voluminous for clients and was not the practice in the law office. Defendant called the plaintiff as a witness. She testified that she received bills from her attorney on a monthly basis and she had no objections to the bills when provided by her [NSYCEF #585, p. 38].

Defendant cross-examined plaintiff's counsel as to why the law firm billed an attorney conference between attorneys in the office related to several entries, such as one on December 27, 2021 where plaintiff's counsel bills for an internal conversation with the partner of the law firm about the case [NYSCEF #584, p. 43], and another billing entry for similar internal conversation on January 31, 2022 [NYSCEF #584, p. 54] Plaintiff's counsel testified that plaintiff received the bills and did not object to this billing practice.

Plaintiff's counsel testified on cross-examination that at one court appearance on May 31, 2023 both she and the partner at the law firm billed for appearance at an oral argument [NYSCEF #584, p. 71-72] because of the complexity of the issues and number of motions pending and because she was "very, very visibly pregnant and the court officers had to step in and tell you to step back because you were like this close -- -- well, you were very close to me personally and you had your voice raised very loudly. So the court personnel indicated to you that that might be seen as threatening behavior and asked you to please step back. So, I think [the partner] also as a good boss came in to protect me against that if that were would [sic] recur" [NYSCEF #584, pp. 71-72].

Defendant cross-examined plaintiff's counsel as to the practice of billing for preparing billing records and for preparation of the retainer agreement: plaintiff's counsel testified that it was the law firm's practice to bill for this time [NYSCEF #584, pp. 52-53] and to add late fees, which plaintiff's counsel testified were added to bills not paid within ninety (90) days according to the law firm's retainer agreement [NYSCEF #584, p. 68].

Defendant, self-represented, testified in the narrative. He opposes any award of counsel fees to the plaintiff and testified that:

Now, it's clear that the Plaintiff doesn't have a lot of money, doesn't have a lot of means and, yet, she chose to hire these attorneys who, apparently, had collected over $137,000 in two and a half years when she couldn't even afford to pay this attorney. If she wasn't able to afford the attorney, then she should have obtained the free attorney instead of wasting the child's money, her inheritance, all this money that she's been wasting for the last two and a half years, and it's important to know that I am the Defendant in this case, not the Plaintiff. It's the Plaintiff who made all these choices and racked up all these legal bills. The Defendant was just defending himself in this case and filing whatever motions and papers were necessary in defense of himself for the Plaintiff's frivolous and fraudulent claims. [NYSCEF #585, pp. 7-8].

Defendant argues that the bills incurred by plaintiff have "nothing to do with the Defendant" and that any costs plaintiff chose to incur should be her sole (100%) financial responsibility because he "should not be paying for the Plaintiff's and her attorney's secret confidential conversation that had nothing to do with this case" [NYSCEF #585, pp. 8-9]. On cross-examination, defendant testified that "[i]t's unreasonable against the interest of justice, burdensome and excessive for somebody who lost his job to be now paying $137,000 of somebody else's legal bill" [NYSCEF #585, p. 35]. Defendant asserted that despite the prior judicial determinations that he is the monied-spouse that he had, since that determination, "lost his job" and was now allegedly unemployed. He offered no testimony or evidence around this alleged change in his financial circumstances.

Defendant's primary objection to the billing records was, he testified, that he believed that most of the charges should have been billed at paralegals rates instead of at attorneys rates insisting line-by-line that certain tasks were "a paralegal task". He also objected that plaintiff's attorneys should not bill multiple charges for drafting over numerous days and argued that the time attorneys spent drafting affirmations and affidavits was "excessive and redundant" [NYSCEF #585, p. 12] and that these billing entries were, in any event, too vague because entries such as "legal research" do not "specify how this legal research is relevant" to the case [NYSCEF #585, p. 20].

Defendant testified that he objected to fees incurred for internal conversations between attorneys at the law firm related to plaintiff's cases [NSYCEF #585, p. 12].

He testified that he objected to counsel billing for preparation for oral arguments and trials that eventually never took place because the issues were resolved so, he argued, those fees were ultimately not necessary and should not be his responsibility [NSYCEF #585, p. 16].

Defendant concluded his direct testimony as follows:

So in this case, the Plaintiff chose to hire these attorneys, rack up these legal fees without any means and drag this case on for so many years when both parties don't have the financial means, and just because the Plaintiff chose to, doesn't mean the Defendant has to pay for what she did and what actions she took and, meanwhile, according to the bills that -- we saw the exhibits, she only paid $15,000 -- $15,500 to the attorneys, not the $137,000 that the attorneys allege according to their legal breakdown [NYSCEF #585, p. 29].

One cross-examination by plaintiff's counsel, defendant conceded that he is currently in child support arrears again — there has not yet been another enforcement proceeding filed — but when asked if he had reported that he owes child support when he renewed his attorney registration a few months prior with the Office of Court Administration he testified that he did not recall and objected that whether he reported his child support arrears and his "private, legal licensure has nothing to do with attorney's fees" [NYSCEF #585, pp. 30-31]. Defendant also testified on cross-examination that he could not recall if he filed a grievance with the Attorney Disciplinary Committee against plaintiff's prior counsel [NYSCEF #585, p. 33].⁴ Plaintiff's counsel argues that whether defendant reported his outstanding child support arrears and whether he recalled whether he did so or whether he filed a grievance against plaintiff's counsel were matters of credibility. While ultimately any repercussions from failure to accurately report child support arrears is the jurisdiction of the Appellate Division, Second Department, the Court finds that defendant's alleged inability to "recall" whether he reported his child support arrears when renewing his attorney registration and his inability to recall whether he filed a grievance with the Attorney Disciplinary Committee against plaintiff's prior counsel to show that defendant was not willing to testify candidly and that he was not forthcoming. Given the gravity of these allegations it defies credibility that defendant "could not recall" these two questions.

Defendant consented to plaintiff's exhibit CF6 being marked into evidence as proof that notice of default of child support was provided by plaintiff's prior counsel [NYSCEF #585, pp. 47-50].

The Law

It is well-established that an award of counsel fees in matrimonial actions is "committed to the sound discretion of the trial court" (Rigas v Rigas, 227 AD3d 1017, 1021, 212 NYS3d 659 [2 Dept.,2024], citing Montoya v Montoya, 143 AD3d 865, 865, 40 NYS3d 151 [2 Dept.,2016]; see also Bracey v Bracey, 222 AD3d 613, 614, 202 NYS3d 196 [2 Dept.,2023], citing Vitale v Vitale, 112 AD3d 614, 614-615, 977 NYS2d 258 [2 Dept.,2013]).

Pursuant to DRL 238, which provides in pertinent part:

In any action or proceeding to compel the payment of any sum of money required to be paid by a judgment or order entered in an action for divorce, . . . or in any proceeding pursuant to section. . . two hundred forty-four, . . . the court may in its discretion require either party to pay the expenses of the other in bringing, carrying on, or defending such action or proceeding.

The Court notes that under DRL 238, an award of counsel fees is discretionary; however, DRL 237(c) separately mandates that the court award counsel fees where it finds that a default in paying support, maintenance or distributive award was willful (see also Uttamchandani v. Uttamchandani, 175 AD3d 1460 [2 Dept.,2019] [find that the Supreme Court erred in not awarding counsel fees where party established arrears were due and unpaid]).

Here, it was undisputed that defendant willfully defaulted on his child support obligation — a fact he never disputed. Defendant always conceded that he had not paid more than a year of child support but after plaintiff sought enforcement he argued that the Court should retroactively "vacate" the child support obligation he agreed to pay in the parties' stipulation of settlement which was incorporated but not merged into the judgment of divorce because he subsequently fathered another child in a new relationship. The Court ultimately granted plaintiff's request for enforcement in the sum of more than $30,000. As such, this Court is mandated to award the counsel fees incurred for enforcement to Plaintiff. Plaintiff contends that the fees directly related to the enforcement motion exceed $51,000.

Furthermore, it is well-established that where the parties' agreement provides for an award of counsel fees in event of default the Court must enforce the terms of the settlement agreement (see Rubio v. Rubio, 70 AD3d 805 [2 Dept.,2010)]. Here, the parties' stipulation of settlement, which was entered into evidence without objection as CF1, provides, as relevant when a party is in default, as follows [NYSCEF #583, p. 37]:

In the event that either party defaults in discharging any of his or her obligations undertaken in this Agreement, then and in such event, after written notice by certified mail to the defaulting party providing him or her with fifteen (15) days to cure same, the aggrieved party shall have the right to sue for the amounts in default or for any other appropriate relief, and the successful party in any such suit or proceeding shall be entitled to receive from the other party and be reimbursed by said party for reasonable counsel fees, expenses and costs to be set by the Court in the same lawsuit.

Here, plaintiff seeks an award of counsel fees for having to defendant against vexatious litigation by defendant in addition to the more than $51,000 in counsel fees for strict enforcement in the combined sum of $137,068.85.

Plaintiff notes that this sum is only for counsel fees incurred from October 31, 2021 through May 31, 2023 and that this request does not include the counsel fees that she was forced to incur after that date, including the counsel fees for her application for an award of sole legal custody of the parties' child [Plaintiff's exhibit CF3 in evidence; NYSCEF #583, p. 41].⁵

The retainer and counsel fee bills in evidence show that plaintiff paid total retainer and replenishments to plaintiff's counsel in the sum of $15,500. The hourly rate of plaintiff's counsel of $400 hourly for senior associate and $475 for partner appear reasonable given their experience [Plaintiff's exhibit CF5 in evidence]. Except as provided herein, the Court finds that the council fees incurred were reasonable. The hourly rate charged by counsel are commensurate with he hourly rates within the community, if not less than many attorneys charge in Kings County for complex litigation.

Defendant had a full and fair opportunity to cross-examine plaintiff's counsel on the billing records from October 2021 through May 2023 and defendant did so thoroughly. Most of the objections defendant raised to plaintiff's counsel's billing records are not a relevant basis to deny counsel fees or infringe on the attorney client privilege.

The Court rejects defendant's argument that the Court should, in effect, intervene in the law office management of plaintiff's counsel's law firm. Defendant objected to who in plaintiff's counsel's office filed documents with the Court insisting that plaintiff's counsel should have relied solely on administrative office staff and paralegals to do such tasks rather than billing for attorneys to file documents with the Court. There is no legal basis for defendant's objection nor is it the role of the Supreme Court of the State of New York to dictate to attorneys how to delegate tasks within their law firms. There is no objection by plaintiff to the bills presented [NYSCEF #584, p. 14] and there is no allegation that the bills were not provided timely to her in compliance with 22 NYCRR 1400.2. There is no basis for defendant to object to such billing practices.

Contrary to defendant's contention, it appears the plaintiff's counsel did utilize and delegate work to paralegals and plaintiff's counsel testified on cross-examination that the law firm often billed plaintiff at the associate rate instead of billing at the partner rate for things such as preparing for trial [NYSCEF #584, p. 70]. Defendant's contention that, in effect, plaintiff's counsel inflated the billing records is not supported by the record. The billing records speak for themselves and appear consistent with plaintiff's counsel's testimony and appear reasonable given the volume and convoluted nature of defendant's numerous and repetitive applications. Plaintiff's counsel's testimony as to the work required due to enforcement and/or to respond to the numerous applications filed by defendant was credible.

Defendant's insistence that he should have no financial responsibility for plaintiff's counsel fees is directly contrary to the Domestics Relations Law and a multitude of case law (DRL 238; DRL 237; see DeCabrera v Cabrera-Rosete, 70 NY2d 879, 524 NYS2d 176 [1987][holding that that it was not an abuse of discretion for the court to award of counsel fees pursuant to DRL 237 based on the relative merits of the parties' positions even without a showing that the party receiving said counsel fees was in need]). Furthermore, defendant's proposition that plaintiff incurred counsel fees so she has to pay them is directly inapposite to the express terms of the parties' stipulation of settlement which requires a defaulting party to pay the counsel fees incurred by the party who had to seek enforcement. The counsel fees incurred by plaintiff were unnecessary but for defendant's willful disregard for his child support obligation the plaintiff would not have had to seek enforcement.

The amount of work plaintiff's counsel performed without getting paid is remarkable. Notwithstanding a clear attempt to "starve" the plaintiff out of counsel. The defendant's disdain for plaintiff's counsel and his belief that the plaintiff should not have legal counsel and that she should be required to litigate against him — an attorney licensed to practice law in the State of New York — as a self-represented litigant in misplaced.

The defendant filed numerous applications seeking, in effect, the same relief all while remaining recalcitrant in his default on child support. Defendant only purge his arrears in the sum of more than $33,000 (representing more than 18 months of non-payment of basic child support), after a contempt finding, in October 2022; however, as recently as the evidentiary hearing on counsel fees plaintiff represented on the record that defendant is again in arrears of his basic child support obligation, which defendant did not dispute.

The Court previously noted in those written decisions that defendant's litany of attempts to "vacate" his child support obligation by all sorts of novel theories all of which have been considered and addressed by the Court in the prior written decisions and orders and all found to not to be supported by the facts or law, raised the question of whether defendant was using his license to practice law to inundate plaintiff with cross-allegations that she was required to defend against so that he could force her to run out of time, energy and financial resources to pursue what she initially came to Court for: enforcement of the $1,500 a month of basic child support he agreed to pay in the stipulation of settlement in November 2019.⁶

Defendant's onslaught of motions against plaintiff were a purposeful attempt to punish her for seeking to enforce his child support obligations and to force her to capitulate to his demands. The record established during the post-judgment litigation that but for the plaintiff's fortitude in resisting the defendant's choice to use his legal license to engage in frivolous and harassing litigation against her the defendant would have abandoned his financial support of this child. In standing firm against defendant's attempts to financially manipulate her, the plaintiff has protected the child.

Furthermore, defendant's position that plaintiff's counsel's professional "ethics" should be questioned because they continued to represent plaintiff when she had only be able to pay them $15,500 towards the more than $137,000 in counsel fees she incurred is wholly misplaced. In fact, the Court of Appeals has acknowledged that attorneys often carry clients on accounts receivable in matrimonial actions (see Frankel v Frankel, 2 NY3d 601, 781 NYS2d 59 [2004]) noting that without DRL 237(c) the more monied spouse:

would have a wide choice of counsel, and the financial wherewithal to maintain the litigation, while the nonmonied spouse would struggle to find a lawyer who might have to unpaid. A matrimonial lawyer may be willing to carry a client on its accounts receivable books, but not as to accounts that will prove unreceivable. In this regard, the Legislature designed Domestic Relations Law 237(a) to eliminate the disparity between the monied and the nonmonied spouse" and that any other interpretation "would thwart the statutory intent" (id. at 607).

The statute is clear and, here, plaintiff's counsel undertook the legal representation of a client seeking enforcement and did not abandon this plaintiff who was seeking to enforce the financial rights of the parties' child even when that enforcement application was accosted by defendant's onslaught of harassing cross-applications which, it is clear, were never more than his attempts to overwhelm the plaintiff so she would abandon her application for the child support he conceded he never paid. This onslaught of motions was facilitated because defendant could use his license to practice law to make the motions all without incurring any counsel fees to escalate the litigation.

Defendant's efforts to delay this process were extensive: he repeatedly filed motions after while a prior motion or motions was pending and before prior motions had been fully briefed, argued, or decided which created need for plaintiff to respond to numerous intertwined and interrelated motions. Clearly, this litigation strategy was designed by defendant, an attorney, to overwhelm the plaintiff in counsel fees. Even defendant in the opposition he filed to plaintiff's request for counsel fees argues that the issues involved in his cross-application in the post-judgment litigation are "intertwined" with the rest of the litigation — he uses this argument no less than five (5) times in his affirmation dated February 16, 2024 [NYSCEF #565].

The Court agrees with defendant: here, given defendant's litigation strategy, it is exceedingly challenging to differentiate between counsel fees incurred by plaintiff seeking strict enforcement and those incurred to respond to defendant's borage of vexatious cross-applications. The nexus between plaintiff's enforcement application and defendant's cross-application that she was forced to defend against are so intertwined that the Court faces the challenge of attempting to differentiate between which counsel fees are strictly for enforcement and thereby required to be awarded under DRL 237(c) and those which are discretionary to be awarded under DRL 238. The Court finds that the testimony and evidence at trial support plaintiff's application for an award of $51,153 in counsel fees for enforcement for failure to pay child support pursuant to DRL 237(c) and that under the facts and circumstances an additional award of counsel fees in the sum of $51,153 for enforcement is appropriate noting that these fees are, as defendant concedes, wholly "intertwined" with plaintiff's initial application for enforcement.

The Court notes that in Yakobowicz v Yakobowicz, the Appellate Division, Second Department found that it was an improvident exercise of discretion to award only $50,000 in attorneys fees to the non-monied spouse where she had been billed nearly $100,000 in a post-judgment enforcement proceeding and found that the party seeking counsel fees was entitled to $96,243.79 in her moving papers where the itemized entries did "not reveal any significant number of hours bills that are plainly unrelated to the enforcement proceedings" (217 AD3d 733, 737 [2 Dept.,2023]) even where the Court found that the defendant's own actions had "partly contributed to the excessively lengthy litigation" (id.). Here, there is nothing in the record to establish that plaintiff's actions in any way resulted in prolonging this litigation or contributed in any way to the counsel fees incurred. Here, the record reveals that the counsel fees incurred herein are solely the result of defendant's willful non-payment of child support and his attempts to force the plaintiff to give up the child's right to financial support from him, the monied spouse.

Despite defendant's objections, there is no basis for an attorney not to bill for time spent strategizing or preparing for trial whether that time is spent in solo preparation or preparing with another attorney. Defendant's objection to plaintiff's counsel billing for time she spent "strategizing" or preparing for trial with the law firm partner are not impermissible billing practices: had plaintiff's counsel sat in an office alone and do the same work and billed for that time is no different than spending time doing the preparation with another attorney especially as here the time was only billed for one attorney. There appears to only be one instance where both the partner and the senior associate billed for working together on the file, which was on March 2, 2022 when both the senior associate and the partner billed for less than an hour for review of the file [Plaintiff's exhibit CF3 in evidence]. It is not clear whether this is a double billing or whether these are separate entries, but in an abundance of caution, the Court will reduce the fees awarded to plaintiff by the sum of $360.00 from March 2, 2022, representing the fees charged by the senior associate and will leave the $322.50 as billed by the partner on March 2, 2022. It appears from the remaining entries that defendant objected to where the partner and the senior associate worked together on the file that most of these billing entries were billed by plaintiff's counsel at the lower rate for a senior associate instead of at the higher partner billing rate already.⁷

In making this award, the Court has reviewed the billing records and has reduced the sum requested by plaintiff for the following: $360.00, for the one billing instance where it appears that plaintiff's counsel and the partner both billed for an internal law firm conference on March 2, 2022; $5,520, the counsel fees billed in the separate tort action defendant commenced against plaintiff which the Court does not believe it has authority under DRL 237 or DRL 238 to award; and the entry plaintiff's counsel conceded on the record may have been an accidental double entry for $1,000 on October 3, 2022, thus, deducting $6,880 from plaintiff's counsel fee request.

The Court finds no merit to defendant's remaining objections to internal law office billing by plaintiff's counsel and rejects his contentions that, inter alia, an attorney is restricted to drafting and editing all legal documents in one session on one day or that billing records must detail each legal issue when legal research is billed. To require the level of detailed billing records that defendant alleges are necessary would effectively make attorneys so busy writing billing records that they would be unable to do any other legal work for their clients and would in many instances infringe on the attorney client relationship.

The record established that plaintiff would not have incurred these post-judgment counsel fees had defendant not defaulted on his child support and then attempted to force her to capitulate to his demands by filing contempt motion after contempt motion against her when these motions were baseless and designed to harass her (see Hayes v Hayes, 127 AD3d 1021 [2 Dept.,2015][finding that plaintiff was entitled to counsel fees inasmuch as all of the litigation which postdated the judgment equitably distributing the marital property was necessitated by the defendant's willful failure to obey that judgment and his unnecessary, vexatious litigation]; see also O'Brien v O'Brien, 115 AD3d 720 [2 Dept.,2014]). The Court notes that here, defendant never denied that he did not pay his child support obligation, he acknowledged that he had not paid his child support but asserted a multitude of non-legally supported excuses for why he should not have to pay — retroactively — his child support obligation.

The Court notes that plaintiff has not, at this time, sought counsel fees related to her application for a change of custody and an award of sole legal custody based on defendant's refusal to comply with the joint decision-making procedures agreed to by the parties in their stipulation of settlement which was granted after an extensive trial. Plaintiff has incurred far greater counsel fees in this litigation than the request currently before the Court and it is alleged that the defendant who is an attorney has again not paid child support.⁸

The Court notes that even when defendant was granted affirmative relief that he sought he attempted to avoid complying such as his repeated refusal to pay for transcripts from oral arguments.Even at the time of the evidentiary hearing on counsel fees the plaintiff refused to pay his half (50%) share of the cost of transcripts despite the Court having previously granted by written order — which was granting defendant's motion — defendant's application that the parties share (50/50%) the cost of transcripts subject to reallocation. Despite having been granted the relief he sought, defendant subsequently for quite some time refused to pay for his share of transcript costs insisting that the plaintiff — who was the less-monied spouse during the marriage and continues to earn much less money than the defendant when he is employed — should pay for the transcripts [NYSCEF #585, pp. 50-55]. The Court issued an oral direction from the bench that defendant comply with that order and pay his one-half (50%) share of the cost of the transcripts, pursuant to his own request by way of motion, noting that both parties are entitled to their day in court and that the:

most sufficient and efficient way is, quite frankly, to provide the minutes" given, in part, that the "matter has gone on for quite some time. You [defendant] have called numerous witnesses. The Court has indulged recalling witness. The Court has given you [defendant] every single opportunity to put on your case, to defend your case. The Court has not curtailed you in any way. The minutes are extensive, in part, because of the strategy which you [defendant] employ, which is your right. You were afforded every -- -- as was the Plaintiff, every due process protection and right" [NSYCEF #585, pp. 53-54].

On the record, the defendant thanked the Court for the opportunities given for both parties to present their cases. The Court found that the production of the minutes was crucial to the Court to consider and issue a decision.

The Court finds that the sum of $64,027.25 in additional counsel fees for defendant's frivolous litigation tactics. In making this award of additional counsel fees, the Court notes that these counsel fees while not strictly related to enforcement were so intertwined, as defendant himself conceded in his affidavit in opposition to the accounting, with the enforcement action that that they could almost be awarded as counsel fees for enforcement as well. The Court reduced the plaintiff's total request for counsel fees by $15,000 (because this sum was already awarded as an interim award and which, as noted previously, plaintiff's counsel represented on the record has been reduced to a money judgment due to non-payment by defendant) and by $6,880.00 (as detailed herein above for limited fees) leaving the sum of $64,027.25 remaining of plaintiff's original request.

Defendant shall pay the full award of counsel fees as detailed herein, to wit, $51,153.60 + $64,027.25 (total of $115,180.85), to plaintiff's counsel within forty-five (45) days of service of this decision and order with notice of entry by regular and certified mail. If the defendant fails to pay this award of counsel fees within (forty-five) 45 days as detailed herein, plaintiff's counsel may enter judgment with the Office of the County Clerk against the defendant, together with costs and statutory interest from the date of service with notice of entry of this decision and order, together with an affirmation of non-payment without need for further Court order on ten (10) days notice by regular and certified mail.

Sanctions

In the written decision and order dated August 17, 2023 [NYSCEF #562] on page 27-28, the Court provided defendant notice pursuant to Rule 130.1 that sanctions would be part of the evidentiary hearing. Clearly, defendant engaged in litigation strategy and behavior during this post-judgment litigation that defies the bounds of reasonable conduct. It is problematic that he chose to use his legal training and licensing as an attorney to attempt to defeat the plaintiff's right to counsel and to attempt to financially abandon the child. The chilling effect of his tactics should not go unchecked; however, the Court notes that he has been found financially responsible for most of the plaintiff's counsel fees. At this juncture, while recognizing that his actions rise to the level of sanctionable conduct, the Court will exercise its discretion and will not sanction the defendant based, in part, upon the economic realities related to counsel fees that now face defendant as a result of his actions. This determination only relates to the current application before the Court.

CONCLUSION

Any relief not granted herein is denied.

This shall constitute the decision and order of the Court.

Dated: January 22, 2025

HON. JEFFREY S. SUNSHINE

J. S. C.

FOOTNOTES

1.   There is no current income information of the plaintiff before the Court. Plaintiff's 2021 W-2 was provided as part of defendant's application for a downward modification which shows she earned approximately $55,000 that year [NYSCEF #150].

2.   It is undisputed that defendant commenced a separate action against plaintiff's counsel alleging malpractice in their representation of plaintiff.

3.   Defendant did not dispute that he did not comply with CPLR 3120(3) but took the erroneous position that procedural rules do not apply to matrimonial actions and refused to withdraw the subpoena that he conceded did not satisfy procedural requirements but still forced plaintiff to litigate the issue and the Court to issue a decision inter alia granting plaintiff's application to quash dated August 17, 2023 [NYSCEF #562].

4.   Defendant has also filed a grievance with the Attorney Disciplinary Committee against plaintiff's current counsel.

5.   Plaintiff's counsel represented on the record that plaintiff has "probably [incurred] another $70 or $80,000 that we didn't ask for, for the seek [sic] of expediency" [NYSCEF #584, p. 25].

6.   The Court has previously noted that in addition to waiving maintenance, plaintiff agreed to a downward deviation in basic child support in the stipulation of settlement.

7.   See 5/18/22 (billed only at senior associate rate);10/24/22 (billed only at partner rate); 1/3/23 (billed only at partner rate); 1/04/23 (billed only at senior associate rate); 1/26/23 (billed only at partner rate); 5/24/23 (billed only at partner rate); 5/31/23 (billed only at senior associate rate).

8.   Defendant, who had sought an order of the court that the parties share (50/50%) the cost of transcripts in this action — an application that the Court granted — argued during the evidentiary hearing on counsel fees that he could not afford to pay for transcripts and that the plaintiff should pay for the transcripts. He argued that if he paid for transcripts he would, allegedly, not have funds to pay child support.

Jeffrey S. Sunshine, J.