M.S., Plaintiff, v. M.S., Defendant. (2021)

In this matter, the Court must resolve payments for attorneys for a divorced couple, after a long slog over child support and other post-judgment enforcement issues. As it turns out, both sides have a claim to fees, and the Court grants both applications to a significant extent.

The former wife (“wife”) claims fees in three separate pieces: a substantial sum for her own attorneys in prosecuting an adjustment to child support, defending her maintenance claims and other relief, a claim for interest on fees paid to one of her prior attorneys and a claim for fees that were owed to a former attorney who represented the wife on prior litigation with her former husband. As an offset, the former husband (“husband”) through counsel, requests fees associated with an application to preclude, which resulted from the wife's counsel's failure to respond to pending disclosure requests.

The litigation in this matter was somewhat complicated. The father moved for a downward modification of child support, based primarily on an emancipation event for one of his children and for a modification of maintenance. The mother cross moved for a recalculation of support. The Court resolved the pending issues but when the parties could not agree on an order, the Court conducted its own review and calculation and signed the father's proposed order. The mother moved for re-argument which the Court granted and issued a decision on the appropriate child support. In the same order, the Court granted a conditional order for preclusion to the husband and the Court deferred an award of attorneys fees to the husband's counsel.

The law on an award of attorneys is easily articulated but more difficult to apply. The equities and circumstances of the parties and the litigation must be considered in each particular case. See Nicodemus v. Nicodemus, 98 AD3d 605 (2d Dept. 2012); see also DRL § 237(a). While DRL § 237 permits consideration of many factors, paramount amongst these factors is financial need. See O'Halloran v. O'Halloran, 58 AD3d 704 (2d Dept. 2009); see also Silverman v. Silverman, 304 AD2d 41 (1st Dept. 2003). “An award of an attorney's fee will generally be warranted where there is a significant disparity in the financial circumstances of the parties.” Cohen v. Cohen, 73 AD3d 832 (2d Dept. 2010). The purpose of DRL § 237 is to “redress the economic disparity between the monied spouse and the non-monied spouse. O'Shea v. O'Shea, 93 NY2d 187 (1999). Other factors to be considered in any award of fees include the relative merits of the parties’ positions, and if either party engaged in conduct that resulted in a delay of the proceedings or unnecessary litigation. See Vitale v. Vitale, 112 AD3d 614 (2d Dept. 2013). The Court may also consider the relative merits of the parties legal and factual positions in the litigation. Caricati v Caricati, 181 AD3d 1279 (4th Dept 2020). While all relevant factors must be considered, there is a rebuttable presumption that counsel fees should be awarded to the less monied spouse. See Marchese v. Marchese, 2020 NY Slip Op 03655 (2d Dept. 2020); see also Boltz v. Boltz, 178 AD3d 656 (2d Dept. 2019). Initially, there is no dispute in this instance that the wife, despite a substantial and continuing award of maintenance paid by her former husband, is the lesser moneyed spouse.

Against that general framework, the Court considers each of these applications in seriatim:

1. The claim for fees to a prior counsel

It is undisputed that the wife procured the services of a prior attorney, who billed the wife $5,000 in fees, for services related to the disputes between this couple. The wife sought payment of those fees. In response, the husband's counsel brought a motion in limine, arguing that the Court could not award those fees based solely on the submission of the prior attorney's billing records. The prior attorney did not appear at trial nor provide an affidavit in support of the fee request. It is well-established that for a party to be entitled to an award of counsel fees, there must be sufficient documentation to establish the value of the services performed. Shamp v Shamp, 133 AD3d 1213 (4th Dept 2015); Johnston v Johnston, 63 AD3d 1555, 1556 (4th Dept 2009). Here, the lack of any evidence of the reasonableness of the former attorney's fees defeats any claim by the wife for the husband's payment of those fees. The wife's claim for the $5,000 and accumulated interest on the former attorneys’ fees is denied.

2. Interest on the Other Prior Attorneys’ fees.

The wife also seeks interest on fees, accrued by the wife, that the husband agreed to pay. The amount was $15,000 and the wife, in a prior agreement, secured a pledge from the husband that if these fees were not paid by him according to the terms of the agreement, then she could claim interest on those fees, if she paid them. The wife did pay those fees. The husband then refused to pay interest on the fees as the agreement required. The husband has no legitimate defense to an award of interest. The Court holds that he breached his agreement to pay those fees and he is liable for the interest on those from the date of the breach — June 1, 2018 — at the state rate of interest accrual until his eventual payment in 2020. The wife is awarded nine per cent interest on the $15,000 from June 1, 2018 until the date of payment.

3. Fees for the Wife's Current Counsel

The wife's current counsel includes a two-member law firm with experienced attorneys providing almost all of the legal services, which are documented in trial exhibits. This Court can easily conclude that both of the wife's attorneys are experienced and competent, as reflected in the papers and presentation before this Court. This Court has also reviewed the invoices submitted by the wife's law firm. While it appears there were abundant hours spent on research and investigation into the husband's income and assets, the Court cannot conclude that the time expended was excessive or unreasonable. In addition, the Court finds that the hourly rate charged by the wife's counsel — $275/hr — is well within the range of legal fees for experienced counsel in this District.

Importantly, this matter was extensively litigated, as there were numerous motions that involved the preparation of detailed affidavits and exhibits. The issue of the child support calculation was particularly nuanced and resulted in a prior court opinion which dealt with the implications of a longstanding child support order, changes in certain statutory provisions and a complicated financial picture. In addition, it is impossible to analyze the issues involved in the claims for legal fees without commenting that the former spouses have taken diametrically opposed views of disputed issues almost from the start. In short, both clients have seemingly treated this as the legal equivalent of trench warfare, with both sides exchanging fire but seldom seriously considering compromise or advancing closer to a legal settlement.

In considering the pertinent factors, this Court notes that the former wife is paid significant maintenance, which constitutes a significant portion of her annual income. If she is required to finance attorneys fees as she seeks defends against modification of child support or other modifications under the prior agreements, she eats into that maintenance and reduces the standard of living that she can otherwise afford. In that regard, a failure to award reasonable fees would require the wife to, in essence, diminish her maintenance. In addition, the husband's income resulting from his successful dental practice is several multiples of the wife's total income, including her maintenance. Under this factor, a significant award to the wife is justified to level the playing field.

In considering the other factors, this Court notes that both parties advanced reasonable and well-argued claims over the child support recalculation. The Court declines to fault either party on that factor and, despite claims by both parties that the litigation was difficult and highly contentious, the Court declines to conclude that either party's litigation stance was inappropriate or that either party engaged in conduct that delayed the proceedings.

Finally, the Court notes that the wife's counsel sought attorneys fees in excess of $59,000, in advance of the hearing held by the Court on fees. While that amount seems significant on its face, the husband's counsel admitted during the closing phases of this matter, the husband incurred attorneys fees in the vicinity of $40,000 in advancing the husband's claims before the Court. To accomplish the goals of Section 237(a) and to advance the concept of a level playing field and taking into account all the factors necessary to establish an appropriate and just fee, this Court awards the wife's counsel $42,500 in attorneys fees to be paid by the husband.

4. The husband's claims for fees for the preclusion motion.

As an offset against the fees awarded to the wife's counsel, the husband advances a claim for the cost of a successful preclusion motion which barred the wife from advancing certain claims and evidence during the hearing on this matter. The husband's counsel seeks fees of more than $7500 for those services.

It is well settled that trial courts have broad discretion in supervising disclosure and, absent a clear abuse of that discretion, a trial court's exercise of such authority should not be disturbed. Carpenter v. Browning-Ferris Indus., 307 AD2d 713 (4th Dept 2003). However, “the demanding party should not be granted more relief for non-disclosure than is reasonably necessary to protect legitimate interests.” Id. In this instance, the motion to preclude was granted because the wife failed to fully comply with the disclosure request. Furthermore, the fees sought, while significant for a single motion, were justified. The motion was well presented and argued in detail. For all these reasons, this Court awards the husband $7500 in legal fees, which can be subtracted from the fees awarded to the wife herein.

Any other claims for fees or costs are denied.

SUBMIT ORDER ON NOTICE 22 NYCRR 202.48

Richard A. Dollinger, J.