J.P., Plaintiff, v. S.M., Defendant. (2025)

This Court is called upon to determine if a monied-spouses' consistent and admitted use and reliance on family wealth and resources to fund a divorce litigation can be considered in awarding pendente lite counsel fees to the non-monied spouse pursuant to DRL 237. Here, the plaintiff-father contends that he is not the monied spouse because he allegedly earns income of approximately $45,000 annually from his clothing store business of many years on Kings Highway in Brooklyn, spends more than $57,000 on monthly living expenses and yet has paid more than $1.5 million in counsel fees while asserting that he should have no financial obligation to provide pendente lite counsel fees to the defendant-mother in this contentious litigation. He contends that his wealthy family can fund his lifestyle and his counsel fees but has no financial obligation to also contribute to counsel fees for the defendant. In the Court's recent pendente lite decision, dated May 14, 2025 [NYSCEF #619], the Court found the father's representation as to his income not credible and determined that he is the monied-spouse. (see J.P. v. S.M., 85 Misc 3d 1284(A) [May 14, 2025]).

The May 14, 2025 written pendente lite decision and order [NYSCEF #619; JP v SM, 85 Misc 3d 1284(A) (May 14, 2025)] includes the extensive procedural history of this case and outlines the litigation postures of the parties: that decision and order must be read in conjunction with this decision and order. The full recitation of the parties' incomes and financial resources including this Court's imputation of income to the plaintiff-father is fully detailed in that decision and order.

The Mother's Legal Representation

The history of the mother's legal representation is detailed in the pendente lite decision. For the purposes of this decision, the mother was represented from November 2023 until April 2025 by Mr. Nachimovsky and Ms. Rodriguez; however, in April 2025, the Court granted Ms. Rodriguez, Esq. request to be relieved as counsel for the mother. When Ms. Rodriguez sought to be relieved, Mr. Nachimovsky, her co-counsel, opposed the application asserting that he was not a matrimonial attorney and was not competent to represent the mother at a hearing or trial.

In the pendente lite decision, the Court noted that:

The father is the monied-spouse; however, the mother does not have a procedurally sufficient application for pendente lite counsel fees before the Court.

In a partial decision and order dated March 27, 2025 [NYSCEF #597], the Court denied the mother's interim counsel fees application as moot but noted that it was "without prejudice for any incoming counsel that defendant [mother] retains to make an application for counsel fees" [p. 60]. In that decision, the Court also "grant[ed] permission for a new application for counsel fees to be brought by an attorney who is qualified to represent defendant [mother] in all aspects of this litigation" [NYSCEF #597, p. 2].

At oral argument at that time, the mother represented that she had incurred more than $560,000 in legal fees borrowed from friends and family and the father represented that he had paid more than $1,457,000 in counsel fees [February 28, 2025, transcript, p 37].¹

On April 3, 2025, the mother's prior counsel, filed an order to show cause seeking the following relief [NYSCEF #602]:

"A.) Compelling Plaintiff to pay OK [Offit Kurman] the amount of $73,238.21 for outstanding legal fees owed by Defendant to OK through March 2025 within 20 days of the date of entry of the decision;

B.) In the event Plaintiff fails to comply with payment of the counsel fees awarded to OK, upon such default, enter a judgment against Plaintiff in the amount of the ordered counsel fees, without further notice;

C.) "So Ordering" the Stipulation (attached as Exhibit A to the Affirmation of Fara K. Rodriguez Re: Counsel Fees) for a charging lien;

and D.) For such other and further relief this Court deems just and proper."

On April 28, 2025, Mr. Robert M. Wallack, Esq. filed a notice of appearance [NYCSEF #617] on behalf of the defendant-mother  ² and on May 16, 2025, he filed an order to show cause seeking the following relief [NYSCEF #641]:

a. Pursuant to DRL § 237, awarding Defendant interim counsel fees in the amount of $250,000.00 payable directly to Defendant's counsel, The Wallack Firm, P.C., without prejudice to further applications for interim fees as may become necessary to litigate this matter;

b. Awarding Defendant interim expert fees in the amount of $30,000.00 payable directly to Eisner Advisory Group, LLC, without prejudice to further applications as may become necessary in this matter; and

c. Granting Defendant such other and further relief as this Court deems just and proper.

Prior Counsel's Request for Charging Lien

In her affirmation in support, dated April 3, 2025, defendant's prior counsel affirms that defendant consented to a charging lien in the sum of $73,238.21 by signed stipulation [NYSCEF #604]; however, she also argues that the Court should order plaintiff to pay the counsel fees consented to by defendant now without a hearing instead of setting aside the sum of the requested counsel fees subject to a hearing because waiting until the conclusion of the litigation could prejudice the law firm by potentially having to wait to collect any award of counsel fees. She argued that " . . . to say that there is a charging lien and that at the end of a trial, which the way the trajectory of this case is going it could be another two years, that my firm has to wait for another two years after in good faith representing the defendant and moving forward and doing all things that needed to be done, really seems inherently unfair to the firm and to me" [June 20, 2025 transcript, pp. 19-20].

At oral arguments on June 20, 2025 [NYSCEF #692], defendant's prior counsel Ms. Rodriquez argued, with respect to the reasonableness of her outstanding fees for the period starting September 2024 through March 2025, that "the reasonableness should be presumed" because plaintiff had incurred more than $887,000 in counsel fees than the defendant had [NYSCEF #692, p.7].

Defendant's prior counsel avers that within that same time she had to prepare a witness list of around 20 people, a temporary order of protection hearing in September, due to, she alleges, plaintiff's objection and refusal to "keep the TOP in place until the custody trial because it would be a waste of judicial resources to not do them together." [NYSEF #692, p. 8-9] She also avers that she made three appearances before the judge previously presiding over the matter, and three before this Court. During the same oral arguments, she contends that to find someone for the therapeutic supervision, she had to call every name on the supervisor list because of numerous conflicts involved in the litigation. She contends that she handled a motion to quash, letters and submission to this Court regarding all open motions, prepared for oral argument with respect to the counsel fee motion and the pendente lite motion, prepared the affidavits for the counsel fees and participated in a mediation with a Rabbi.

Defendant's prior counsel argues that "[p]laintiff's litigation strategy illustrates a clear objective: to spend whatever is necessary to make [defendant] suffer" [NYSCEF #603, p. 4]. She asserts that plaintiff is the monied spouse and that there is a stark disparity in the parties' access to financial resource and that plaintiff is attempting to exert "financial coercion" over defendant [NYSCEF #603, p. 6] as demonstrated, she argues, by the amount of counsel fees plaintiff has incurred (more than $1.6 million billed as of February 2, 2025 [NYSCEF #553]) more than double the counsel fees defendant has incurred (approximately $560,000 [NYSCEF #577]).

In support of her application, defendant's prior counsel annexed her retainer agreement [NSYCEF #606]; billing records [NYSCEF #607]; and defendant's updated affidavit of net worth [NYSCEF #605]. She contends that she has billed defendant at a reduced hourly rate of $600.00 and has not billed "over 100 hours of time spent on Defendant's matter" [NYSCEF #603, p. 12].

Plaintiff's counsel asserts that plaintiff is entitled to a hearing on the issue of an appropriate award inasmuch as he may be obligated to pay some or all of any awarded counsel fees [NYSCEF #661, p. 7]: " . . . Plaintiff needs an opportunity to question Ms. Rodriguez's charges" [NYSCEF #661, p. 7] especially "when the Court has not received any Affidavit from the Defendant attesting to the work done by her attorney, and affirmation stating that she agrees to pay the amount owed" [NYSCEF #661, p. 8] and that no award of counsel fees should be made to prior counsel until a "full accounting of the Defendant's finances can be made" after a hearing or at trial [NYSCEF #661, p. 5]. He argues that inasmuch as the counsel fee request is made by prior counsel it is "more akin to a final fee award" and requires a hearing [June 20, 2025 transcript, p. 16]. Plaintiff's counsel contends that a hearing is especially warranted here because, he contends, defendant's prior counsel initially sought an award of approximately $55,000 in counsel fees due and owing in February 2025 but after being relieved submitted a consent stipulation for counsel fees of more than $73,000 implying that defendant may have, in effect, colluded with prior counsel to force plaintiff to pay more counsel fees [June 20, 2025 transcript, p. 14-16]. Defendant's prior counsel argued that "[t]he additional fees were not for after I was discharged. It was from the time I made the application until I was discharged where I was still working diligently on the matter" [June 20, 2025 transcript, p. 20].

At oral arguments on June 20, 2025, plaintiff's counsel argued that a hearing is required based upon Frankel v. Frankel where the Court of Appeals held that an attorney discharged without cause in a matrimonial action may seek counsel fees from the monied spouse under DRL § 237(a) and after a hearing to determine the reasonable value of the attorney's services. (Frankel v. Frankel, 2 NY3d 601, 604 (2004)).

Plaintiff, in his affidavit dated May 26, 2025 [NYSCEF #662], again asserts his prior position that he is not the monied-spouse, despite the Court's pendente lite decision, and avers that he has no "right" and "no access" to any financial resources from his father and disputes the defendant's contention that he received "regular, consistent, and/or expected gifts" from his father throughout he marriage [NYSCEF #662, p. 1]. He avers that "[a]ny help [my father] has given me has been as his own discretion, when he chose, and limited to specific costs" [NYSCEF #662, p. 1]. He asserts, in opposite to the Court's pendente lite decision, that the defendant is the monied spouse, that her assertion that she is unemployed is not accurate, and that she has higher income than he does [NSYCEF #662, p. 2].

Plaintiff does not dispute defendant's counsel's assertion that he has incurred more than $1.6 million dollars in counsel fees in this divorce action and that he has paid more than $1.4 million. Rather, he avers that the high counsel fees he has paid his attorney are a result of "Defendant's false claims that I am some kind of millionaire or have access to millions of dollars" [NYSCEF #662, p. 3]. Plaintiff continues to take the position that just because his father has provided him financial resources at times there is no obligation for his father to provide financial resources to the mother in the form of pendente lite counsel fees. As detailed in the pendente lite decision and order, the Court found the plaintiff-father not credible given, inter alia, that his monthly expenses alone exceeded his alleged annual income by more than $10,000 monthly.

Defendant's Current Counsel's Fee Request

In support of his request for interim counsel fees in the sum of $250,000.00, defendant's current counsel asserts in his affirmation in support dated May 16, 2025 [NYSCEF #642] that plaintiff should be ordered to pay interim counsel fees because this Court found him to be the monied-spouse in the pendente lite decision and order dated May 14, 2025 [NYSCEF #647] and because the plaintiff has incurred more than $1.6 million in counsel fee to his attorney and has paid nearly $1.5 million of those counsel fees — approximately $880,000.00 more than the defendant has incurred [NYSCEF #642, p. 2] — and that plaintiff has been able to pay $1.4 million of those counsel fees while defendant has now exhausted every possible source of friends and family to borrow funds from to pay counsel fees. Defendant's counsel argues that an award of counsel fees is required because the plaintiff has "created a grossly inequitable playing field" and is attempting to use his greater access to counsel fees to financially starve out the defendant as a litigation tactic [NYSCEF #642, p. 2].

Defendant's new counsel argues that his order to show cause for interim counsel fee is "already the seventeenth (17th) motion filed in this case due mainly to plaintiff's vexatious litigation tactics. Even with the considerable time and money that has been spent thus far on this matter, the case is nowhere near conclusion" [NYSCEF #642, p. 5]. The Court notes the extensive procedural history of this case, including that every other justice assigned to the matrimonial bench in Kings County recused prior to the case being assigned to this Court, as is detailed in the pendente lite decision and order dated May 14, 2025 [NYSCEF #647].

Defendant's counsel asserts that:

As noted above, my firm was just retained, and we are at a considerable disadvantage coming in as new counsel on the eve of an imminent trial. At a minimum, we must spend significant time getting up to speed in order to prepare for and conduct the custody trial and hearing regarding the order of protection. Given the substantial (and excessive) litigation that has occurred to date, the work will be extensive, very time-consuming, and expensive to say the least [NYSCEF #642, p. 5].

Defendant's counsel affirms that his hourly billing rate is $850.00 and that his associate's hourly billing rate is $650.00 [NYSCEF #642, p. 7]. In support, he annexed copies of his retainer agreement [NYSCEF #646] and defendant's affidavit of net worth [NYSCEF #653].

Plaintiff's counsel, in his affirmation in opposition argued that "[a]ny fee request must be deferred until trial" because, he contends, there are "substantial open questions about the Defendant's income and assets" [NYSCEF #661, p. 1] and that "it would be a miscarriage of justice to direct [the plaintiff] to secure further funding from his family to pay Defendant's legal and expert fees" [NSYCEF #670, p. 1]. He argues that defendant can earn more income than the plaintiff and that even if she is unemployed now that is "self-inflicted, voluntary unemployment" [NYSCEF #670, p. 6] and that she "cannot live out the rest of her life on payments that [plaintiff] has received from his family" [NYSCEF #670, p. 6]. He asserts that "the Court must deny her application for a whopping $250,000 in prospective counsel fees and $30,000 in expert fees" [NYSCEF #670, p. 7]. The Court notes that plaintiff's characterizations of the requested fee award of $250,000. is "whopping" must be viewed in the context of that he himself has already paid more than $1.5 million dollars in counsel fees to Mr. Nottes who has made it very clear on the record that this case will continue to be extensively litigated.

Expert Fees

Defendant's incoming counsel seeks an award of interim expert fees in the sum of $30,000.00 for [E.A.G.]:

...to complete his analysis of defendant's business and plaintiff's income and cash flows. I note that defendant was forced to retain her own expert after plaintiff hired an expert, D. G., as a forensic account [sic], to make allegations regarding defendant's income and cash flow from her business" [NYSCEF #642, p. 8]

In support, defendant's counsel provides an affirmation of J. H. from E.A.G. that he has completed substantial work in preparing a preliminary report, for which he is still owed nearly $10,000.00 and that there is "substantial additional work" to be done to complete the report. It is undisputed that plaintiff hired a forensic accountant on related issues. Plaintiff counsel asserts that there is no basis for defendant to seek in 2025 expert fees incurred in 2023 [NYSCEF #692, p. 32].

Parties' Incomes and Financial Circumstances

The recent pendente lite decision and order dated May 14, 2025[NYSCEF #619; JP v SM, 85 Misc 3d 1284(A) (May 14, 2025)] fully details the parties' incomes and financial resources and circumstances, including this Court's imputation of income to the plaintiff-father of $689,884.08 annually for the purposes of calculating pendente lite support and the Court's determination that imputing income to the defendant-mother was not warranted pendente lite. In the interest of judicial economy the recitation of the parties' financial circumstances in the pendente lite decision and order is incorporated herein and must be read in conjunction with this decision and order.

Discussion

Judicial Law § 475

Judiciary Law § 475 states, in relevant part, that:

"from the commencement of an action [ . . . ] the attorney who appears for a party has a lien upon his or her client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client's favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien."

Furthermore, "[w]here an attorney's representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no justified abandonment by the attorney, the attorney maintains his or her right to enforce the statutory lien" (Nassour v Lutheran Med. Ctr., 78 AD3d 671, 672 [2d Dept 2010] [internal citations omitted]).

Prior Attorney's Charging Lien:

" 'A charging lien is a security interest in the favorable result of litigation, giving the attorney equitable ownership interest in the client's cause of action and ensuring that the attorney can collect his fee from the fund he has created for that purpose on behalf of the client.' " ((Chadbourne & Parke, LLP v AB Recur Finans, 18 AD3d 222, 223, 794 NYS2d 349 [2005] [citation omitted]; see Judiciary Law § 475). "In a matrimonial action, a charging lien will be available 'to the extent that an equitable distribution award reflects the creation of a new fund by an attorney greater than the value of the interests already held by the client' " ((Charnow v Charnow, 134 AD3d 875, 876 [2d Dept 2015)(quoting Moody v Sorokina, 50 AD3d 1522, 1523 [4th Dept 2008]) [internal citations omitted]). "However, '[w]here the attorney's services do not create any proceeds, but consist solely of defending a title or interest already held by the client, there is no lien on that title or interest." (Id.)(quoting Theroux v Theroux, 145 AD2d 625, 628 [2d Dept 1988]).

"An attorney may enforce a charging lien simply by making a petition to the court in the proceeding where he or she appeared, rather than having to bring a separate plenary action." (Wasserman v Wasserman, 119 AD3d 932, 934 [2d Dept 2014])(see Haser v Haser, 271 AD2d 253, 254, 707 NYS2d 47 [2000]; Miller v Kassatly, 216 Ad2d 260, 628 NYS2d 687 [1995]). The Court also notes that, generally, when counsel fees are challenged, they must be proven "in an adversarial atmosphere where, upon the presentation of testimony, the opposing parties may assert the right to cross-examine. (Weinberg v Weinberg, 95 AD2d 828, 829 [2d Dept 1983])(citing Badenhop v Badenhop, 84 AD2d 773).

Here, the retainer agreement between defendant and her prior counsel established a right to a charging lien [NYSCEF 178]. Separately, the defendant entered into a consent stipulation acknowledging that she owes prior counsel the sum of $73,238.21 in counsel fees but pursuant to DRL 237 seeks an order of the Court for the plaintiff to pay some or all of those fees. The question before the Court is what, if any, financial responsibility the plaintiff — who was found to be the monied spouse pendente lite — may have toward payment of these counsel fees since the defendant is the less-monied spouse. While defendant consented to the total counsel fees and defendant's prior counsel may ultimately seek to enforce any unpaid portion of that sum against defendant separately, the monied spouse who did not enter into this consent stipulation still has standing to challenge the reasonableness of any fees and raise any challenges related to claims of double-billing or other objections that may exist at a hearing at the conclusion of this litigation either at the end of the trial on the financial issues or after the parties resolve the matter by stipulation of settlement but before the submission of a proposed judgment of divorce. After that hearing, the Court will make any appropriate allocation of the monied-spouse's share, if any, of those counsel fees pursuant to DRL 237.

At the conclusion of the litigation, the plaintiff will have an opportunity to raise any appropriate challenges to the counsel fees sought by prior counsel and defendant shall have the opportunity to seek contribution to these counsel fees from plaintiff pursuant to DRL 237 together with any other appropriate counsel fee applications at that time. Defendant's prior counsel's alternative application for an order directing plaintiff to pay the full sum immediately without a hearing based upon the consent stipulation entered into between her and her client would, in effect, circumvent plaintiff's opportunity to raise any challenges the billing records is denied. To grant that application would, in effect, remove the issue of pendente lite counsel fee awards from judicial scrutiny.

Defendant's Counsel Interim Attorney's Fees

Under New York Domestic Relations Law § 237(a), the court, in an action for divorce, may direct a monied spouse to pay the counsel fees and expert expenses of the less-monied 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 of the respective parties." Furthermore, the statute provides in relevant part that:

"There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to the final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses." DRL § 237

"An award of counsel fees pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case" (Fugazy v Fugazy, 210 AD3d 653, 655, 176 N.Y.S.3d 728 [2d Dept 2022]). It is well-established that the purpose of "[a]n award of interim counsel fees is designed to create parity in divorce litigation by enabling the nonmonied spouse to litigate the action on equal footing with the monied spouse" (Palmeri v. Palmeri, 87 AD3d 572, 572, 929 N.Y.S.2d 153 [2d Dept 2011]). "[A]n award of interim counsel fees to the non-monied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties [emphasis added]" (Id. quoting Prichep v. Prichep, 52 AD3d 61, 65, 858 N.Y.S.2d 667 [2d Dept 2008]). The court in Prichep recognized that "courts should not defer requests for interim counsel fees to the trial court, and should normally exercise their discretion to grant such a request made by the non-monied spouse, in the absence of good cause—for example, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case—articulated by the court in a written decision." (Id.) "[U]nlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required prior to the award of interim counsel fees" (Isaacs v. Isaacs, 71 AD3d 951, 951, 897 N.Y.S.2d 225 [2 Dept., 2010]; see also Prichep, 52 AD3d at 65; Singer v. Singer, 16 AD3d 666, 667, 792 N.Y.S.2d 541 [2 Dept., 2005]; Flach v. Flach, 114 AD2d 929, 929, 495 N.Y.S.2d 202 [2 Dept., 1985]).

In Frankel v. Frankel, the Court of Appeals recognized that "the realities of contentious matrimonial litigation require a regular infusion of funds", and "that more frequent interim counsel fee awards would prevent accumulation of bills" (Frankel v. Frankel, 2 NY3d 601, 605, 607 n 1, 814 N.E.2d 37, 781 N.Y.S.2d 59 [2004])." "[W]hen considering an application for interim counsel fees, the court must consider the relative financial circumstances of both parties"(Charpie v. Charpie, 271 AD2d 169, 171, 710 N.Y.S.2d 363 [1st Dept 2000])."An appropriate award of attorney's fees should take into account the parties' ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances" (Grumet v. Grumet, 37 AD3d 534, 536, 829 N.Y.S.2d 682 [2d Dept 2007]).

In addition, "[a] court may consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation" (Vitale v Vitale, 112 AD3d 614, 615, 977 N.Y.S.2d 258 [2d Dept 2013]; see also Cohen-McLaughlin v McLaughlin, 132 AD3d 716, 717, 18 N.Y.S.3d 634 [2d Dept 2015]; Guzzo v Guzzo, 110 AD3d 765, 766, 973 N.Y.S.2d 265 [2d Dept 2013]; Chesner v Chesner, 95 AD3d 1252, 1253, 945 N.Y.S.2d 409 [2d Dept 2012]; Baron v Baron, 71 AD3d 807, 810, 897 N.Y.S.2d 456 [2d Dept 2010]).

Here, defendant's incoming counsel seeks an award of $250,000 in pendente lite counsel fees. The Court determined in its decision and order dated May 14, 2025 [NYSCEF #622], that the plaintiff-husband is the monied spouse. In support of his claim for counsel fees, defendant's counsel submitted a retainer agreement dated April 24, 2025 [NYSCEF #646]. In pertinent part, defendant's retainer agreement demonstrates that the initial retainer was for $50,000 to be credited against the time charges for services performed by attorneys, paralegals and clerks. Where the hourly rate for time spent by principal attorney is $850.00 per hour, for of counsel and associate attorneys is $450.00 to $650.00 per hour, for paralegals and law clerks is $75.00 to $125.00 per hour and for clerks is $50.00 to $75.00 per hour. Defendant's counsel billable hourly rate appears commensurate with his experience which is outlined in his affirmation in support dated May 16, 2025 [NYSCEF #642].

At oral arguments on June 20, 2025, defendant's counsel represented that he has not received payment for any portion of the $50,000 retainer and that he took the defendant's case based on the Court's decision and order permitting incoming counsel to file an application for interim counsel fees. Defendant asserts that his firm will need to spend significant time to get up to speed on the case and "prepare for and conduct the custody trial and hearing regarding the order of protection" which he states is already at its seventeenth (17th) motion filed which he contends is "due mainly to plaintiff's vexatious litigation tactics." [NYSCEF #642, p. 5] In support of his prospective fees, defendant's counsel argues that he will have to:

"(i) prepare discovery (which I am advised has thus far been ignored by plaintiff); (ii) prepare for and conduct plaintiff's deposition (and defend defendant's deposition) and the depositions of any necessary non-parties; (iii) prepare for and conduct the ordinary rounds of court appearances and correspondence with counsel, which I am advised have been extensive and frequent in this case; (iv) oppose whatever new motions plaintiff brings; and (v) eventually prepare for a financial trial, with the attendant research and pre-trial submissions, attendance in court and conducting the trial, as well as the necessary post-trial submissions." [NYSCEF #642, p.6]

Defendant's counsel further represents that "plaintiff's strategy appears to be nothing short of 'scorched earth'—he delays, stalls and then fights on virtually every issue, no matter how minor or seemingly noncontroversial—and it appears to be designed to punish defendant and to prevent her from having a relationship with the Children. Plaintiff, who began the case by completely 'cutting off' defendant financially, as well as cutting her off from the Children and from her home, has thus far not paid a single cent to defendant for either support or towards her counsel fees" [NYSCEF #642, p. 2].

Defendant's counsel further asserts that an award of $250,000-- $50,000 for the retainer which he contends has already been incurred since he took on the case and an additional $200,000 in prospective fees based on the level of anticipated work required to be able to move forward with the order of protection hearing, the custody trial and then dealing with the financial matters—is reasonable. Plaintiff's counsel argued that defendant's counsel did not meet the burden of showing that the sum of $200,000 in prospective counsel fees was reasonably anticipated to be incurred.

Plaintiff's own counsel's billing history and the tenor and length of this litigation alone makes it clear that the sum of interim counsel fees requested by defendant's counsel can be reasonably expected. Plaintiff has argued that they will vigorously litigate inter alia Defendant's earning abilities, her parenting abilities, her use an occupancy of either of the two (2) homes and a significant tax issue. Additionally, there is clearly a need for an imminent trial on custody, an order of protection and exclusive occupancy together with testimony from the forensic evaluator and other financial experts. With these issues before the Court and the litigation posture so far it is clear that the fee requested is more than reasonable under these circumstances.

It appears disingenuous for plaintiff to argue that it is unreasonable for defendant to anticipate that $200,000 in prospective counsel fees will be necessary given that plaintiff has incurred $1.6 million in counsel fees to litigate this case which is well more than double the counsel fees that defendant has incurred.

Plaintiff contends that he earns limited income and that the Court should not consider whatever family wealth and financial resources he may benefit from in making any award of pendente lite counsel fee award because, he contends, his father has "no obligation" to provide him any financial support and any support his father has provided is not guaranteed. At oral argument, plaintiff's counsel asserted that if the Court orders the plaintiff to pay pendente lite counsel fees to the defendant " . . . my client is going to be deprived of the ability to pay his lawyers . . . " [NYSCEF #692, p. 29]. When the Court inquired how much plaintiff's counsel had been paid between February 2025 and June 2025, plaintiff's counsel asserted that he did not know and that the plaintiff " . . . wouldn't [sic] know" [NYSCEF #692, p. 29]. The Court then took a recess for plaintiff's counsel to find out how much he had been paid during that time period. When oral argument resumed, plaintiff's counsel represented that his firm had been paid $287,500 in counsel fees between February 3, 2025 and June 20, 2025 [NYSCEF #692, p. 30]. He clarified that "as we detailed in the fee affirmation that we uploaded in February, we were owed at this point in time $176,234,14. I said earlier, we are owed over $100,00 still. This goes back to the receivables that has [sic] been accruing over a long time [sic] during litigations, plural, not just this court; the Appellate Division, Family Court, and other proceedings." [NYSCEF #692, p.35]. Plaintiff's counsel contends that it is defendant who is driving the litigation and that plaintiff should not have to contribute any counsel fees to defendant.

It is telling that plaintiff takes the position that defendant failed to meet her burden of showing that prospective counsel fees of $200,000 are reasonably anticipated when plaintiff himself has incurred so much more in counsel fees in this litigation. It appears that the reasonableness of the prospective counsel fees application by defendant is supported by plaintiff's own level of incurred counsel fees.

Plaintiff's contention that he can utilize family wealth and financial resources to fund this litigation against the defendant yet bind the Court's ability to consider those financial circumstances is misplaced and not consistent with the language of DRL 237 which expressly mandates the Court to consider, inter alia, the parties' "financial circumstances". While plaintiff is correct in that, in general, a litigant's family has no obligation to fund a divorce litigation, here, plaintiff chose to accept and utilize what appear to be substantial financial means provided by his family both during the marriage and importantly, for the issue of pendente lite counsel fees, to accept the full financial benefit of his family's wealth to fund this litigation in an astonishing amount far exceeding the parties' declared income yet strategically chose not to provide any access to this infusion of financial resources to the defendant to level the playing field.

When the plaintiff accepted this infusion of family wealth to fund his litigation against the defendant those funds became part of his "financial circumstances" and ripe for the Court to consider under DRL 237 in awarding pendente lite counsel fees to the defendant because she is the non-monied spouse. Additionally, here, plaintiff concedes that his family provided significant financial support to the family on some ongoing basis during the marriage even before the commencement of the divorce while he asserts that there was no obligation for his family to do so.

To accept the plaintiff's proposition that the Court cannot consider financial circumstances such as accepting consistent and ongoing infusions of family wealth used to fund one parties' litigation costs in awarding pendente lite counsel fee awards to a non-monied spouse would entirely undermine the statutory scheme and effectively nullify DRL 237. Instead of leveling the playing field in matrimonial cases this scenario would empower a party with access to family wealth to financially overwhelm the non-monied spouse.

There is a vast financial disparity between the parties: the Court found plaintiff's representations as to his financial circumstances not credible in the pendente lite decision and order and imputed income of $689.884.08 to him. (J.P. v. S.M., 85 Misc 3d 1284(A) (May 14, 2025)) Pendente lite the defendant was found to have been primarily a wife, mother and homemaker during most of the marriage without the same access to financial resources as the plaintiff. Plaintiff's contention that his family should be able to fund his litigation without limit and that if the defendant needs counsel fees that her family should be responsible for funding her litigation costs is not supported by the record at this time where there is no indication that the defendant has received the same unfettered infusions or access to any family wealth as the plaintiff has continued to do to pay counsel fees.

Tellingly, at oral argument plaintiff's counsel asserted that asking his client how much counsel fees he had paid in the prior three (3) months was not helpful because his client "wouldn't know" because plaintiff himself is not paying his counsel fees. Additionally, when plaintiff's counsel obtained the sums paid between February 2025 and June 2025 it was more than $280,000. Plaintiff's counsel's assertion that this sum is somehow irrelevant because those fees were not all incurred during that same duration deflects from the point which is that the family wealth infusions continue to be accepted and used by plaintiff to fund this litigation while none of these financial resources are available to the defendant as the parties continue to litigate with no resolution in sight as to the issues of custody, parenting time, orders of protection and all of the ancillary financial issues that remain open at this time. No matter how many times plaintiff asserts that it is not his father's obligation to continue to provide him with financial support or that the defendant has a one-time earning from a defunct pandemic-related business, ignores the reality of his litigation strategy thus far. That is the allegation that he is using his family wealth and resources to overwhelm the defendant and divest her of her access to her children, access to both homes, access to support and now access to counsel. The only way for the defendant to challenge plaintiff's claims and to defend her assertions is with competent counsel to level the playing field. That was clearly articulated in Frankel and its progeny. To hold otherwise would destroy the very purpose of DRL 237 and make a mockery of the statutory and appellate history. The very ability of plaintiff to have received the benefit of substantial counsel fees and ongoing support to sustain his luxury lifestyle from his father warrants an award of counsel fees to enable defendant to engage in this litigation with counsel.

The Court finds that under the facts and circumstances present here, including the nature and complexity of the issues raised, the disparity between the counsel fees paid by plaintiff and defendant, the qualifications of defendant's counsel, the number of open motions pending in the instant proceeding, the litigation, the length of time already spent by parties litigating the issues, and the fact that plaintiff has been found to be pendente lite the monied spouse as contemplated by Domestic Relations Law § 237(a), that an award of pendente lite counsel fees in the amount of $200,000 is appropriate without prejudice to future applications for additional counsel fees, as necessary at the time of trial or sooner, upon the requisite showing (see DRL § 237; Prichep v. Prichep, 52 AD3d 61, 858 N.Y.S.2d 667 [2nd Dept.2008]; Kesten v. Kesten, 234 AD2d 427, 650 N.Y.S.2d 807 [2nd Dept.1996]; Dodson, 46 AD3d at 305; Jorgensen v. Jorgensen, 86 AD2d 861, 861, 447 N.Y.S.2d 318 [2 Dept.,1982]).

The payment in this award of pendente lite counsel fees of $200,000 shall be made directly from the plaintiff to the defendant's counsel within thirty (30) days of service of notice of entry of this decision and order. If the plaintiff fails to make the payment in compliance with this decision and order the defendant's attorney may enter a judgment for the full amount then due and owing, plus statutory costs and interest, retroactive to the date of the default, with the Office of the County Clerk upon ten (10) days written notice by overnight and regular mail to the plaintiff and without further application to this Court.

Expert Fees

New York Domestic Relations Law § 237(a) likewise addresses the payment of expert fees by a monied spouse:

"[I]n any action or proceeding brought [ . . . ] for a divorce [ . . . ] the court may direct either spouse [ . . . ] to pay counsel fees and expenses of experts directly to the attorney of the other spouse to enable the other party 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 of the prospective parties . . . [emphasis added]" NY DOM REL § 237

In his affidavit in support of defendant's counsel's order to show cause, dated May 16, 2025 [NYSCEF #644], the expert represents that his retainer agreement includes, in pertinent part, an initial retainer of $5,000 paid in full by defendant. The retainer represents that his billing rate is $595 per hour, and the rates of his other staff range from $90-$100 per hour. In preparing the preliminary report, the expert avers that he had to review and examine several documents, which resulted in total incurred fees for defendant of $23,505.25. The expert avers that he applied a discount of $3,525.79 which reduced the total to $19,979.46. Defendant made an additional payment of $5,000 in or around June 2024 leaving a remaining balance of $9,979.46, which includes defendant's full payment of the initial retainer.

The expert represents, that "in order to review additional document production, perform our work, and prepare report(s), we anticipate that the additional professional fees to be incurred are likely to be at least $20,000 in addition to the $9,979.46 that we are already owed." [NYSCEF #644, p.3] The expert states in his affidavit in support that the report he has prepared so far was only a preliminary report, and in order to complete a final report he will have to, in pertinent part:

"[review] [p]laintiff's earning, business interests, and personal finances. [ . . . ] there is significant discovery outstanding on the part of the Plaintiff, and as noted in the report, additional information is required to determine Plaintiff's actual income, unreported income or other receipts to support the funding for the level of expenses that he listed in his Statement of Net Worth, since his reported income did not support the level of expenses, and the deposits we saw from the limited documentation we were able to review are not reconciled to tax returns or other sources of cash flow. We will also need to assist counsel in the preparation for the deposition of Plaintiff. With respect to Defendant's business, there were additional items requiring further review as noted in the report, however, I anticipate the work with respect to Plaintiff's income/cash flow will be far more extensive." [NYSCEF #644, p. 3]

In addition to the facts and circumstances stated above, the Court notes that defendant may very well not have had to hire an expert had it not been to rebut plaintiff's expert's findings. Therefore, as a matter of leveling the playing field for the less-monied spouse, the Court finds it fair to award the expert $30,000.00 in pendente lite expert fees to be paid for by plaintiff.

Defendant's award for pendente lite expert fees is without prejudice to future applications for additional expert fees, as necessary at the time of trial or sooner, upon the requisite showing (see DRL § 237; Prichep v. Prichep, 52 AD3d 61, 858 N.Y.S.2d 667 [2nd Dept.2008]; Kesten v. Kesten, 234 AD2d 427, 650 N.Y.S.2d 807 [2nd Dept.1996]; Dodson, 46 AD3d at 305; Jorgensen v. Jorgensen, 86 AD2d 861, 861, 447 N.Y.S.2d 318 [2 Dept.,1982]).

The payment in this award of pendente lite expert fees of $30,000.00 shall be made directly from the plaintiff to the defendant's expert within sixty (60) days of service of notice of entry of this decision and order. If the plaintiff fail to make payment in compliance with this decision and order the defendant's expert may enter a judgment for the full amount then due and owing, plus statutory costs and interest, retroactive to the date of the default, with the Office of the County Clerk upon ten (10) days written notice by overnight and regular mail to the plaintiff and without further application to this Court.

The Court sets the payment of these counsel fees to sixty (60) days because of the urgent need to set this matter down for a hearing on custody, parenting time, and the order of protection. The Defendant has been subject to supervised visitation orders which she alleges have not to be followed by the plaintiff and it is undisputed that she has been barred from both marital homes so that she has, she asserts, been forced to live at times in her office. Plaintiff has had access to counsel fees readily available through his family and Defendant's counsel needs to be paid to prepare for the trial. There was an emergency application made in the last week related to the Plaintiff's alleged interference with the Defendant's access to the youngest child. The Court notes that incoming counsel has not been paid at all. To defer the payment of pendente lite counsel fees would effectively deprive the Defendant counsel. The Court is prepared to set the matter down for trial dates forthwith.

Conclusion

The defendant-mother's prior counsel's order to show cause [motion sequence #16] is granted to the extent.

The defendant-mother's present counsel's order to show cause [motion sequence #17] is granted to the extent.

All relief not specifically granted is denied.

This shall constitute the decision and order of the Court.

ENTER:

Hon. Jeffrey S. Sunshine

J. S. C.

FOOTNOTES

1.   At oral argument on June 20, 2025 [NSYCEF 692], plaintiff's counsel asserted that it was somehow inappropriate for the Court to have "asked very pointed questions" related to "how much were people paid, how much were lawyers owed" and other questions related to the parties' payment of counsel fees and then the Court asked for updated statements of net worth and tax returns which the parties uploaded. The application had been sub judice before another Judge, with the multitude of other motions submitted to that Judge and needed to be updated. There is no basis to the plaintiff's counsel objection to the Court relying on the uploading of the updated tax returns and affidavits of net worth which was on notice and was prior to the subsequent oral argument so both parties had a full and fair opportunity to address the information provided.

2.   Mr. Nachimovsky appeared at the June 20, 2025 court appearance and asserted that he had not agreed to execute the consent to change attorney form provided by his client more than a month prior because he believed he would not be able to seek any counsel fees he sought if he voluntarily executed the consent [NYSCEF #692, pp. 3-4]. The Court directed him to sign the consent to change attorney form and excused him from the appearance.

Jeffrey S. Sunshine, J.