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T.K., Plaintiff v. D.K., Defendant.
The attorney for the child (hereinafter “AFC”), Brynde Berkowtiz, Esq., moves in this post judgment matrimonial proceeding by Order to Show Cause dated April 9, 2018 for an order (1) finding Defendant in contempt of Court pursuant to Judiciary Law §§ 753 and 756 and sanctioning him as the Court deems appropriate, for his knowing and willful violation of the Order of this Court, dated September 19, 2017, by Defendant's refusal to pay the Attorney for the Child 100% of the Court-ordered compensation; (2) awarding the AFC a money judgment in the amount of $9,800.00, representing fees owed by the Defendant; and (3) awarding the AFC a money judgment for her fee, costs and disbursements in prosecuting this motion. Defendant opposes the motion.
Defendant commenced this instant post judgment proceeding involving issues of custody rights and parenting time. By Order dated September 19, 2017, the AFC was appointed to represent the parties' daughter (DOB XX/XX/2004). Pursuant to said Order, Defendant was directed to pay 100% of the retainer and subsequent compensation. The retainer of $3,000 was to be paid within 10 days of the date of the Court's Order. The AFC documented that she is owed $9,800.00 and attaches copies of her uncontested billing statements.
The AFC asserts that Defendant has not paid the retainer or any other amount towards her fees despite receiving monthly or bimonthly billing statements setting forth the services rendered. The AFC argues that Defendant is in contempt for failing to abide by the direct Order requiring him to pay 100% of her fees.
In opposition, Defendant argues that his statement of net worth provided to Justice Steinman in 2016 demonstrated how “bad” his financial situation was and he claims that he does not have the ability to comply with the Order.1 He does not provide said net worth statement but attaches an updated net worth statement, a pay stub and his 2017 tax return. In his net worth statement, Defendant fails to include any amounts for housing, utilities, food or clothing, stating only that he is “unable to afford” and “all monies are borrowed for living expenses.” He argues that because Plaintiff created the need for an attorney for the child by her conduct, and because Plaintiff deceived the Court as to her financial condition, he should not be responsible for the cost of the AFC.
Defendant's privately retained counsel submits an affidavit wherein she claims Defendant prepared his own affidavit to avoid incurring legal fees. Counsel argues that enforcement of the Order appointing the AFC is premature as her fees are subject to reallocation after trial. Because of that, counsel claims there is no “unequivocal” order directing Defendant to make payment and therefore there can be no contempt. She further argues that the AFC has not alleged the element of prejudice.
In reply, the AFC asserts that Defendant's argument that she has not been prejudiced by his failure to pay her is specious. Defendant was ordered to pay her fees, he failed to do so in violation of an order and Defendant violated her right to payment. The AFC further asserts that she need not prove willfulness for a finding of civil contempt. She argues that if making fees subject to reallocation is to be interpreted to mean that the fees do not need to be paid, then orders appointing attorneys for the children would be meaningless.
It is unrefuted that Defendant has failed to comply with Order appointing the AFC. Defendant does not deny knowledge of the Order or his failure to comply, nor does Defendant challenge the services rendered by the AFC or the reasonableness of her bills.
Pursuant to Judiciary Law § 753:
A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases: ․ 3. A party to the action or special proceeding, an attorney, counsellor, or other person, for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution can not be awarded for the collection of such sum except as otherwise specifically provided by the civil practice law and rules; or for any other disobedience to a lawful mandate of the court.
Effective as of September 29, 2016, Domestic Relations Law § 245, which grants the court authority to punish a party for civil contempt pursuant to Judiciary Law § 753 where the party defaults “in paying any sum of money” required by a judgment or order, was modified so as to eliminate the requirement that the aggrieved party first demonstrate payment cannot be enforced by other remedies or that such other remedies would be ineffectual. In any event, is worth noting that Defendant claims that he cannot pay the AFC and his net worth statement shows no property or asset to which a judgment for the sums owed could attach, rendering alternative remedies ineffectual.
To prevail on a motion for civil contempt, however, the movant must first demonstrate by clear and convincing evidence that the party charged disobeyed a clear and unequivocal court order, of which the party had knowledge, and that the movant was prejudiced thereby (see Judiciary Law § 753[A]; El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 28–29, 19 N.Y.S.3d 475, 41 N.E.3d 340, ). “It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party” (Gomes v. Gomes, 106 A.D.3d 868, 869, 965 N.Y.S.2d 187, quoting Matter of Philie v. Singer, 79 A.D.3d 1041, 1042, 913 N.Y.S.2d 745; see El–Dehdan v. El–Dehdan, 114 A.D.3d at 17, 978 N.Y.S.2d 239).
In order for there to be an adjudication of contempt, “prejudice of the right to a party to the litigation must be demonstrated” (McCormick v. Axelrod, 59 N.Y.2d 574, 466 N.Y.S.2d 279, 453 N.E.2d 508  ). Although the child is not a named party in this action, this Court finds the AFC has standing to seek said relief (see: Siskind v. Schael, 33 A.D.3d 806, 823 N.Y.S.2d 436 [2d Dept., 2006] [trial court's adjudication of contempt against mother for her failure to pay fees owed to the attorney for the child in a child custody proceeding under Article 6 of the Family Court Act affirmed]; see also Freihofner v. Freihofner, 39 A.D.3d 465, 835 N.Y.S.2d 234 [2d Dept., 2007] [plaintiff's former attorney is an “aggrieved party” under Judiciary Law § 753 where plaintiff failed to abide by order directing her to satisfy a charging lien in favor of her former attorney and “since the plaintiff had knowledge of this mandate, and since her actions prejudiced her former attorney, the Supreme Court properly granted her former attorney's motion to hold her in civil contempt”].
The crux of Defendant's argument is that he should not be responsible for the AFC's fees due to Plaintiff's alienating conduct and because of his financial condition. While that is an argument for the Court to consider at the conclusion of this matter on the issue of reallocation, it is not a defense to contempt. There is a clear and unequivocal order directing Defendant to make payment now, not at such time as the fees may be reallocated.
Pursuant to DRL § 246, where a party asserts a financial inability to comply with the directions in or an order or judgment as a defense in a contempt proceeding, a hearing is required (Santucci v. Santucci, 92 A.D.3d 666, 937 N.Y.S.2d 881 [2d Dept., 2012]; Boritzer v. Boritzer, 137 A.D.2d 477, 524 N.Y.S.2d 225 [2d Dept., 1998] ).
The Court has considered the Defendant's claims as to his financial condition. While he asserts in his net worth statement that he is unable to afford food, housing or clothing, he offers no facts setting forth how he is living nor does he offer any proof in support of his representation that he is “borrowing” money for all of his expenses. Defendant further fails to state from whom he is allegedly borrowing money. Defendant neglects to include the cost of his living expenses, even if they are being paid for by some unknown person(s). Although Defendant's counsel states that she is “informed” that her legal fees are being paid for by Defendant's mother, Defendant's affidavit is completely silent on this issue and no retainer agreement is provided.
Furthermore, the limited information offered in his net worth statement include assets such as a checking account with $1,015.70, an IRA with $13,425.35, a Money Purchase Plan with $20,700.92, and a joint e-trade account with $1,810.14. His 2017 W2 Statement reflects $62,000 in income. Defendant's pay stub, dated April 11, 2018, shows a net pay of $3,672.12 per month, with a “voluntary deduction” for “EEHSCP” at the cost of $450.00 each month.
In light of the bare-bones and incomplete net worth statement provided by Defendant and Defendant's failure to otherwise provide this Court with ample information regarding his financial condition, Defendant's conclusory claims of a financial inability are insufficient to warrant a hearing (Carlin v. Carlin, 108 A.D.2d 493, 489 N.Y.S.2d 762 [2d Dept., 2013]; Rocco v. Rocco, 90 A.D.3d 886, 934 N.Y.S.2d 720 [2d Dept., 2011]; Farkas v. Farkas, 209 A.D.2d 316, 618 N.Y.S.2d 787 [1st Dept., 1994]; Lopez v. Ajose, 33 A.D.3d 976, 824 N.Y.S.2d 113 [2d Dept., 2006] ).
Reallocation of AFC Fees: Courts are authorized to direct that a parent who has the financial means pay some or all of the fees for an attorney for the children (see: Pascazi v. Pascazi, 65 A.D.3d 1202, 885 N.Y.S.2d 735 [2d Dept., 2009]; Young v. Young, 161 A.D.3d 1182, 74 N.Y.S.3d 499 [2d Dept., 2018]; Plovnick v. Klinger, 10 A.D.3d 84, 781 N.Y.S.2d 360 [2d Dept. 2004] ). Authority to require a parent to pay a child's legal expenses flows from the statutory duty to support a child under the age of 21 and provide the child with necessaries, which includes counsel. (Plovnick v. Klinger, 10 A.D.3d 84, 781 N.Y.S.2d 360 [2d. Dept., 2004] ).
This Court rejects Defendant's argument that the order directing payment to the AFC is equivocal because it is subject to reallocation. To find otherwise would result in attorneys for the children rendering legal services for months, or even years, until the conclusion of a matter without any payment. It is longstanding policy and law that counsel representing a parent need not wait until the conclusion of a custody matter to get paid and this Court will not abide counsel for the child having to do so [see also: Mary E. v. Usher E., 40 Misc.3d 1215(A), 977 N.Y.S.2d 667 (Sup. Ct. 2013) [trial court denied Defendant's request to wait until financial issues were resolved before entering a money judgment for fees owed to the attorney for the children because doing so would place AFC's in a position of subsidizing the litigation].
It is abundantly evident that an attorney for the child is essential in litigation involving issues of custody and parenting time. The Domestic Relations Law recognizes and addresses the need for counsel fees to be awarded to enable a party to prosecute or defend on issues of custody. As are counsel for parents, an attorney representing a child is entitled to the fees necessary to properly represent his or her client in what is often protracted litigation. The needs of the children are of paramount concern in custody litigation and their representation must not be compromised.
Although the case law does not directly addresses an AFC's right to “interim” fees during the pendency of an action, the Court of Appeals and Appellate Division have repeatedly articulated the importance of awarding interim counsel fees to the parties in contested matrimonial and custody litigation. Said cases are in line with the Court of Appeals' recognition that “the realities of contentious matrimonial litigation require a regular infusion of funds” (Frankel v. Frankel, 2 N.Y.3d 601, 605, 781 N.Y.S.2d 59, 814 N.E.2d 37  ). In the often cited Prichep v. Prichep, 52 A.D.3d 61, 858 N.Y.S.2d 667 [2d. Dept., 2008], the Appellate Division squarely held that “courts should not defer requests for interim counsel fees to the trial court.” This remains the public policy of this State, despite the fact that counsel fees are often awarded and/or reallocated at the conclusion of litigation. A party need not wait until the conclusion of the matter for his or her counsel to be paid (see e.g.: Penavic v. Penavic, 60 A.D.3d 1026, 877 N.Y.S.2d 118 [2d Dept., 2009]; Carlin v. Carlin, 120 A.D.3d 734, 991 N.Y.S.2d 335 [2d Dept., 2009] ).
This Court finds no reason to distinguish between a parent's right to counsel fees and the child's right in the same litigation. The AFC cannot and should not be expected to actively participate in ongoing litigation without payment.
Defendant's unmistakable decision to pay only his counsel fees and not those of his child, despite a clear order directing him to do so, is unacceptable to this Court. The fact that Defendant has not paid any sum of money towards the AFC's fees is shocking to the Court. If the Court fails to enforce its own orders, it would make them useless and violate the strong public policy that court orders are to be followed.
For the above reasons, and because the Court finds that Defendant has failed to comply with an unequivocal court order directing Defendant to pay a $3,000 retainer to the AFC within 10 days of September 17, 2017, the AFC's motion is GRANTED to the extent Defendant is hereby is deemed to be in contempt under Judiciary Law § 753 and it is
ORDERED that the Defendant, D.K., is directed to appear before this Court for sentencing on September 7, 2018 at 9:30 a.m., however, the contemnor may purge his contempt if he pays the sum of $3,000.00 directly to the attorney for the child, Brynde Berkowtiz, Esq. on or before September 4, 2018; and it is further
ORDERED, that Defendant shall pay directly to Brynde Berkowitz, Esq., the sum of $9,800 within forty-five days of the date of this Order. Said $9,800 shall be reduced by any amount(s) paid to purge the contempt; and it is further.
ORDERED, that upon the failure of the Defendant to pay to Brynde Berkowitz, Esq., said $9,800.00, the Ms. Berkowitz may file an affidavit of non-compliance with the Clerk of the County who shall enter a judgment, with statutory interest thereon as of the date of this Order, in favor of BRYNDE BERKOWITZ, ESQ, in the unpaid amount without further proceedings.
All matters not decided or requests for relief not granted herein are hereby DENIED.
This constitutes the decision and order of this Court.
1. This matter was extensively litigated prior to being assigned to the undersigned Justice.
Edmund M. Dane, J.
Response sent, thank you
Docket No: 202042-2011
Decided: July 31, 2018
Court: Supreme Court, Nassau County, New York.
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