TORKIN v. SUSAC (2025)

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Westchester County (Nancy Quinn Koba, J.), dated March 28, 2022.  The order, insofar as appealed from, after a hearing, granted that branch of the defendant's motion which was pursuant to Domestic Relations Law § 237(a) for a final award of counsel fees only to the extent of awarding the defendant an additional $272,000 in counsel fees.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action for a divorce and ancillary relief on December 13, 2017.  An amended judgment of divorce dated December 23, 2021, was entered.  The amended judgment of divorce determined all issues not stipulated by the parties other than counsel and expert fees and litigation costs.  After a hearing on the parties’ claims for counsel and expert fees, the Supreme Court, inter alia, granted that branch of the defendant's motion which was pursuant to Domestic Relations Law § 237(a) for a final award of counsel fees only to the extent of awarding her an additional $272,000 in counsel fees.  The defendant appeals.

By statute, there is “a rebuttable presumption that counsel fees shall be awarded to the less monied spouse” (id.).  “While the statute creates a presumption that counsel fees are to be awarded to the less affluent spouse, it does not address the amount of fees to be awarded” (Marchese v. Marchese, 185 A.D.3d 571, 575, 126 N.Y.S.3d 177).  “The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court” (id. at 576, 126 N.Y.S.3d 177;  see O'Brien v. O'Brien, 66 N.Y.2d 576, 590, 498 N.Y.S.2d 743, 489 N.E.2d 712).  “In exercising that discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties’ positions and whether either party has delayed the proceedings or engaged in unnecessary litigation” (Marchese v. Marchese, 185 A.D.3d at 576, 126 N.Y.S.3d 177;  see Blocker v. Blocker, 221 A.D.3d 768, 769, 200 N.Y.S.3d 383).

Here, considering the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties’ positions and whether either party delayed the proceedings or engaged in unnecessary litigation, the Supreme Court providently exercised its discretion in awarding the defendant an additional $272,000 in counsel fees and declined to award her $368,000 as further reimbursement for counsel fees that she paid to her second attorneys, the Nolletti Law Group, in connection with the action (see Mahoney v. Mahoney, 197 A.D.3d 638, 641, 152 N.Y.S.3d 727;  Nieves–Iglesias v. Iglesias, 186 A.D.3d 1234, 1235, 127 N.Y.S.3d 906).

To the extent the plaintiff seeks certain affirmative relief, such request is not properly before this Court, since he failed to cross-appeal from the order appealed from (see Kruter v. United Parcel Serv. Gen. Servs. Co., 210 A.D.3d 671, 673, 177 N.Y.S.3d 692;  Dhar v. City of New York, 204 A.D.3d 976, 977, 165 N.Y.S.3d 327).

CHAMBERS, J.P., BRATHWAITE NELSON, VOUTSINAS and LOVE, JJ., concur.