Christian W., Plaintiff, v. Yael S., Defendant. (2026)

This matter was recently assigned to the undersigned by administrative order of the Chief Administrative Judge of the Courts, and the Court has reviewed the entirety of the submissions described below in reaching the determination that follows.

I. Statement Pursuant to CPLR § 2219 [a]

Upon the foregoing papers, and in compliance with CPLR § 2219 [a], the Court states that the following papers were read and considered upon Defendant's Order to Show Cause seeking an award of interim counsel fees pursuant to Domestic Relations Law § 237 [a]: the Order to Show Cause with supporting papers, signed by the Hon. Jeffrey H. Pearlman, J.S.C., on October 30, 2025 and filed October 31, 2025, together with the attorney certification annexed thereto (NY St Cts Filing [NYSCEF] Doc Nos. 101; 102); the Affirmation in Support of Defendant, affirmed October 22, 2025 (NY St Cts Filing [NYSCEF] Doc No. 81); the Attorney Affirmation in Support of Defendant's counsel, affirmed October 27, 2025, together with Exhibits A through R annexed thereto (NY St Cts Filing [NYSCEF] Doc Nos. 82-100); Plaintiff's Affirmation in Opposition, affirmed November 19, 2025 (NY St Cts Filing [NYSCEF] Doc No. 105), together with Exhibits 1 through 11 annexed thereto (NY St Cts Filing [NYSCEF] Doc Nos. 107-117), including the settlement correspondence (NY St Cts Filing [NYSCEF] Doc No. 107) and Plaintiff's Statement of Net Worth (NY St Cts Filing [NYSCEF] Doc No. 108); the Attorney Affirmation in Opposition of Plaintiff's counsel, affirmed November 19, 2025, with the attorney certification pursuant to 22 NYCRR 202.8-b (NY St Cts Filing [NYSCEF] Doc No. 106); the Reply Affirmation in Further Support of Defendant, affirmed December 2, 2025 (NYSCEF Doc No. 118); and the Reply Attorney Affirmation in Further Support of Defendant's counsel, affirmed December 2, 2025 (NY St Cts Filing [NYSCEF] Doc No. 119), together with Exhibits S, T and U annexed thereto (NY St Cts Filing [NYSCEF] Doc Nos. 120-122), and the attorney certification (NY St Cts Filing [NYSCEF] Doc No. 123).

The Court has further reviewed the prior submissions expressly incorporated by reference into the moving papers, namely Defendant's Affirmation in Support dated February 28, 2025 (NY St Cts Filing [NYSCEF] Doc No. 89) and her Reply Affirmation dated May 5, 2025 (NY St Cts Filing [NYSCEF] Doc No. 90), annexed as Exhibits G and H, and the So-Ordered Stipulation annexed as Exhibit C (NY St Cts Filing [NYSCEF] Doc No. 85).

The Order to Show Cause directed that service be made upon Plaintiff's counsel by NYSCEF on or before October 31, 2025, that answering papers be served and filed on or before 5:00 p.m. on November 19, 2025, and that reply papers be served and filed on or before 5:00 p.m. on December 2, 2025. (NY St Cts Filing [NYSCEF] Doc No. 102). The papers were timely served and filed in accordance with those directives, and the motion was made returnable on December 4, 2025.

II. Findings of Fact

A. The Parties, the Marriage, and the Procedural Posture

The parties were married in September 2019. (NY St Cts Filing [NYSCEF] Doc No. 4). There is one child of the marriage, born in 2021, who is presently four years of age. (see id). Plaintiff commenced this action for divorce on June 21, 2023. (NY St Cts Filing [NYSCEF] Doc No. 1). The marriage was therefore of approximately three years and nine months in duration as measured from the date of the marriage to the date of commencement, and this action has now been pending for more than two and one-half years.

Prior to the commencement of the action, the parties attempted to resolve their differences through mediation and jointly retained a private mediator. Plaintiff paid the entirety of the mediator's fee in the sum of $23,700. (NY St Cts Filing [NYSCEF] Doc No. 105). The mediation was unsuccessful. Each party ascribes the collapse of the mediation to the intransigence of the other: Plaintiff asserts that he commenced the action and retained litigation counsel only when it became apparent that Defendant would not modify what he characterizes as unreasonable positions (NY St Cts Filing [NYSCEF] Doc No. 106), while Defendant asserts that it was Plaintiff who refused to continue the mediation process and who sought the assignment of a judge. (NY St Cts Filing [NYSCEF] Doc No. 118).

Plaintiff first retained his present counsel in April 2023 in a non-litigation capacity upon payment of a $3,500 retainer, and retained that firm in a litigation capacity on April 5, 2024 upon payment of a $5,000 retainer. (NY St Cts Filing [NYSCEF] Doc Nos. 105; 116). Defendant has been represented in the course of this litigation by an initial attorney, thereafter by a second firm, and, since September 9, 2025, by her present counsel. The retainer agreement with present counsel and the Consent to Change Attorney are annexed to the moving papers as Exhibits A and B. (NY St Cts Filing [NYSCEF] Doc Nos. 83; 84).

While represented by her second firm, Defendant filed an Order to Show Cause seeking various forms of interim relief, designated Motion Sequence 001 (NY St Cts Filing [NYSCEF] Doc Nos. 15-36; 60-73). That application was returnable on May 12, 2025, on which date the parties appeared with counsel and a conference was held. At that appearance the parties resolved Branch (a), Defendant's request for interim spousal and child support; Branch (b), her request that Plaintiff pay one hundred percent of the child's expenses; and Branch (c), her request for a childcare contribution. The resolution was embodied in a So-Ordered Stipulation, annexed as Exhibit C. The sole branch of Motion Sequence 001 submitted for decision was Branch (d), Defendant's request for $115,000 in interim counsel fees payable to that firm. That branch remains undecided as of the date of this Decision and Order.

On or about September 12, 2025, three days after the substitution of counsel, Defendant's present counsel wrote to the Court requesting leave to file supplemental papers in connection with Motion Sequence 001 so as to supplement the request for interim counsel fees to include fees payable to incoming counsel, annexed as Exhibit E. (NY St Cts Filing [NYSCEF] Doc No. 87). On or about September 25, 2025, Plaintiff's counsel opposed that request, annexed as Exhibit F. (NY St Cts Filing [NYSCEF] Doc No. 88). Defendant thereafter brought the instant application, designated Motion Sequence 002.

By this application Defendant seeks an order pursuant to Domestic Relations Law § 237 directing Plaintiff to pay the sum of $100,000 as and for a contribution to her interim counsel fees, together with related costs and expenses, directly to Defendant's counsel within ten days of the Decision and Order on the motion, with leave to apply for such additional fees as may become necessary, together with such other and further relief as the Court deems just and proper.

B. Plaintiff's Financial Circumstances

Plaintiff is a physician. In his Statement of Net Worth dated March 14, 2024, Plaintiff reported income of $796,945 (NY St Cts Filing [NYSCEF] Doc No. 5). In a subsequent Statement of Net Worth, Plaintiff reported income of $500,000 (NY St Cts Filing [NYSCEF] Doc No. 43). Plaintiff has sworn that he earned $694,033 in 2022, $743,373 in 2023, and $796,945 in 2024. Plaintiff further represents that, according to the parties' jointly filed returns, his total income was $440,824 in 2020 and $427,722 in 2021, and that the elevated figures for 2022 through 2024 were the product of his holding several positions simultaneously and working essentially without respite.

Before his relocation, Plaintiff worked as a physician at a hospital in New York City, travelled during his off weeks to a hospital in western New York and to a medical group in Pennsylvania, and performed consulting work for a pharmaceutical company. Plaintiff states that this schedule was unsustainable, that it exacted a physical and mental toll, and that it limited his time with the child. (NY St Cts Filing [NYSCEF] Doc No. 105). He states that his attorneys advised Defendant's prior counsel by letter in October 2024 that he would be relocating to Arizona in January 2025, that his consulting work with the pharmaceutical company had ended, and that his base salary would be $430,000 per year. (see id).

Since January 2025, Plaintiff has been employed as a W-2 wage earner with a medical group in Arizona at an annual base salary of $380,000, predicated upon 182.5 shifts at a rate of $2,083 per shift, each shift approximately twelve hours in length, which shifts he describes as an expectation rather than a guarantee. (see id). Plaintiff received a one-time signing bonus of $50,000 upon execution of the employment contract, annexed as Exhibit 4. (NY St Cts Filing [NYSCEF] Doc No. 110). He receives an additional monthly stipend of $4,166.67 for service as a hospital administrator, which equates to approximately $50,000 annually. (NY St Cts Filing [NYSCEF] Doc No. 105). He also performs part-time consulting work for a start-up company for which he is paid between $1,200 and $1,500 per month when work is available, which he describes as unsteady. (see id). Plaintiff acknowledges that extra shifts were available during 2025 because the program was not fully staffed, but represents that the program is now near full staffing and that he cannot expect to supplement his income in that manner going forward. (see id).

Defendant does not accept that characterization. She observes, and Plaintiff does not dispute, that both the reduction in his income and the relocation across the country were voluntary. (NY St Cts Filing [NYSCEF] Doc No. 118). She computes Plaintiff's minimum 2025 income, drawing exclusively upon his own sworn admissions as to base salary, signing bonus, administrative stipend, and consulting income, at not less than $495,000 without the working of any extra shifts, and in reply posits a comparison of approximately $445,000 for Plaintiff against approximately $150,000 for herself even if her tax-free support were treated as income, which she maintains it should not be. (see id). She further notes that Plaintiff has not produced his 2024 tax returns, his 2024 W-2s and 1099s, or any recent paystub reflecting his year-to-date earnings at his new employment, and that his own Statement of Net Worth (NY St Cts Filing [NYSCEF] Doc No. 108) is dated approximately six weeks after her own and some seven months before the filing of his opposition.

Plaintiff represents that he carries substantial obligations. He states that he services a tax liability of $219,799 pursuant to an Installment Agreement with the Internal Revenue Service requiring payments of $3,000 per month, evidenced by the letter annexed as Exhibit 9, which advises that enforcement action may follow upon default. (NY St Cts Filing [NYSCEF] Doc No. 115). He further identifies student loans, credit card obligations, a personal loan taken to satisfy the parties' 2022 taxes, and fifty percent of the monthly loan payment to Defendant's parents. (NY St Cts Filing [NYSCEF] Doc No. 105). He states that in early 2025 he surrendered the New York rental apartment that he had maintained for his monthly visits with the child because he could no longer afford it. Defendant responds, by reference to the Tax Indemnification Agreement annexed as Exhibit S, that the $219,799 liability is Plaintiff's own tax debt rather than marital debt, and that he executed an indemnification agreement reflecting as much. (see id).

C. Defendant's Financial Circumstances

Defendant is a full-time doctoral student and the child's primary caretaker. Plaintiff represents that Defendant holds an M.B.A., that she matriculated as a full-time doctoral student in September 2021, and that she is nearing completion of her Ph.D. in organizational psychology. (NY St Cts Filing [NYSCEF] Doc No. 82). Defendant represents that the pursuit of the doctorate was a course of study the parties mutually agreed she would undertake and one that afforded her the flexibility to serve as the child's primary caretaker. (see id).

Defendant earned $66,589 in 2023, as reflected in Exhibit L (NY St Cts Filing [NYSCEF] Doc No. 94), and approximately $71,000 in 2024, as reflected in Exhibit M (NY St Cts Filing [NYSCEF] Doc No. 95). She states that when Motion Sequence 001 was filed, her only secured income for the year was approximately $47,000 through an academic grant, and that she thereafter undertook three teaching assistant positions and consulting opportunities that ran only through August, adding approximately $30,000. (NY St Cts Filing [NYSCEF] Doc No. 89). She has been offered and has accepted a twelve-month post-doctoral position, evidenced by the offer annexed as Exhibit O, which commenced on November 3, 2025 and runs through October 31, 2026 at an annual salary of $90,000, and which she identifies as her only secured income for 2026. (NY St Cts Filing [NYSCEF] Doc No. 97). She accordingly anticipates 2025 earnings of approximately $92,000. The most she earned during the marriage was $127,287 in 2019, before the birth of the child. (NY St Cts Filing [NYSCEF] Doc No. 82). Her Statement of Net Worth, dated February 28, 2025, is annexed as Exhibit P. (NY St Cts Filing [NYSCEF] Doc No. 98).

Since the execution of the So-Ordered Stipulation in May 2025, Plaintiff has paid Defendant $8,000 per month in unallocated, tax-free support. (NY St Cts Filing [NYSCEF] Doc No. 105). Plaintiff also pays one hundred percent of the child's preschool tuition, unreimbursed medical expenses, extracurricular activities, and agreed-upon camp and summer activity expenses; fifty percent of the monthly loan payment to Defendant's parents; one hundred percent of Defendant's and the child's health insurance premiums; and eighty-five percent of the cost of the child's babysitter and nanny. (NY St Cts Filing [NYSCEF] Doc No. 105). Plaintiff represents that these sums aggregate approximately $16,000 per month and that, prior to the Stipulation, he had been paying virtually all family and household expenses, including the mortgage, homeowners' insurance, utilities, and cooperative maintenance for the marital apartment in which Defendant and the child reside. (see id).

Defendant paid her present counsel a retainer of $25,000, which she states she borrowed from her parents and must repay. (NY St Cts Filing [NYSCEF] Doc No. 82). She affirms that no individual has promised to pay her counsel fees. (NY St Cts Filing [NYSCEF] Doc No. 81). She notes that the parties previously borrowed $100,000 from her parents pursuant to an Unsecured Promissory Note, annexed as Exhibit Q (NY St Cts Filing [NYSCEF] Doc No. 99), which is being repaid and toward which each party is responsible for one half under the So-Ordered Stipulation. Plaintiff, for his part, observes that no promissory note has been produced with respect to the retainer funds and suspects that the funds are in truth a gift, and he further contends that Defendant's Statement of Net Worth is outdated and overstates expenses that he in fact pays. (NY St Cts Filing [NYSCEF] Doc No. 105).

D. The Fees Incurred and the Scope of Anticipated Work

Defendant's present counsel bills at the following rates: lead counsel at $1,095 per hour; a second partner at $875 per hour; and associates at rates between $595 and $705 per hour, with the associate principally assigned billing at $695 per hour. Plaintiff's papers identify a fourth attorney billing at $705 per hour, and compute an aggregate hourly rate of $3,370. (NY St Cts Filing [NYSCEF] Doc No. 82). Lead counsel was graduated from law school in May 1995, was admitted to the Bar in April 1996, has confined his practice substantially to matrimonial law since 1997, and is a Fellow of the American Academy of Matrimonial Lawyers. (see id). The second partner has practiced exclusively in matrimonial and family law for nearly seventeen years and served as Principal Law Clerk to the Supervising Judge of the Matrimonial Parts in Suffolk County from October 2018 through October 2021. (see id). The associate principally assigned was graduated cum laude from law school in 2020 and practices exclusively in matrimonial and family law. (see id).

As of the filing of the moving papers, Defendant had exhausted $21,817 of her $25,000 retainer, of which approximately $15,339 was attributable to the preparation of this application. (see id). The firm's time records, redacted for privilege and confidentiality, are annexed as Exhibit R. (NY St Cts Filing [NYSCEF] Doc No. 100). In reply, counsel represents that an additional $20,208 was expended in reviewing the file to prepare a comprehensive settlement proposal transmitted on November 20, 2025, in reviewing the opposition papers, in meeting with the client, and in preparing the reply papers, and that the outstanding balance owed to the firm is $12,942.35, with the updated records annexed as Exhibit T. (NY St Cts Filing [NYSCEF] Doc No. 118; 121). Counsel further represents that his firm has expended approximately fifty hours since its retention.

With respect to prior counsel, the papers filed in Motion Sequence 001 reflect that Defendant had incurred $107,822 in counsel fees as of May 5, 2025, and reply counsel represents that prior counsel expended approximately 227 hours. Plaintiff computes Defendant's aggregate incurred fees at not less than $129,639. (NY St Cts Filing [NYSCEF] Doc No. 106). Plaintiff, by contrast, has paid his counsel the sum of $60,840 between April 2023 and October 31, 2025, consisting of $10,080 for non-litigation services and $50,760 for litigation services rendered between April 2024 and October 31, 2025, with billing records annexed as Exhibit 11. (NY St Cts Filing [NYSCEF] Doc No. 117). The hourly rate of Plaintiff's counsel on this matter is $625, and reply counsel represents that Plaintiff's counsel expended approximately ninety-nine hours between April 25, 2023 and October 31, 2025 and that three attorneys or support staff have worked on Plaintiff's matter.

As to prospective work, Defendant's counsel represents that although document productions have been exchanged, updated discovery is required to obtain a complete picture of Plaintiff's finances, likely on a rolling basis, and that third-party subpoenas may become necessary should production not be forthcoming; that a notice for Plaintiff's deposition must be prepared and that substantial preparation, including document review and client conferences, will be required; that further motion practice may be necessary depending upon the trajectory of the matter; and that a trial encompassing both custody and financial issues may prove unavoidable.

E. Plaintiff's Opposition

Plaintiff opposes the application in its entirety. He characterizes this as a straightforward divorce arising from a short-term marriage, unburdened by financial or custodial complexity. He represents that he has never objected to Defendant having primary physical custody of the child, has never objected to paying child support, and has never sought to cap his child support obligation at the guideline amount, indicating instead a willingness to deviate upward. (NY St Cts Filing [NYSCEF] Doc No. 105). He states that the marital estate consists of a cooperative apartment, which has been appraised, retirement accounts, and bank accounts, that he has been willing to assume virtually all of the substantial marital debt other than the mortgage and the loan from Defendant's parents, and that in the two and one-half years the action has been pending there have been no depositions, no mental health evaluations, no appointment of an attorney for the child, no forensic evaluator, and no appraisals apart from that of the marital apartment. (see id). He observes that Defendant has not served a deposition notice in the twenty-nine months since commencement and that her articulation of anticipated work is speculative. (NY St Cts Filing [NYSCEF] Doc No. 106).

Plaintiff further contends that he is not the monied spouse when the reallocation of resources effected by the So-Ordered Stipulation is taken into account, that the combination of $96,000 per year in tax-free unallocated support, virtually complete coverage of the child's add-on expenses, and Defendant's own income of at least $92,000 leaves her with greater available resources than he retains, and that he simply lacks the funds from which to pay her legal fees. (NY St Cts Filing [NYSCEF] Doc No. 105). He characterizes the aggregate sum of $215,000 sought across the two applications as appalling, emphasizes that Defendant's new attorneys nearly exhausted the $25,000 retainer upon the preparation of this motion before undertaking substantive work, and contends that the combined billing rate of $3,370 per hour is unreasonable for a matter of this character. (see id). In support of the reasonableness of his own litigation positions he annexes his settlement letter of September 2, 2025 as Exhibit 1 (NY St Cts Filing [NYSCEF] Doc No. 107) and recites certain of the parties' negotiating positions.

F. Defendant's Reply

Defendant replies that Plaintiff's opposition improperly discloses and relies upon settlement communications in contravention of CPLR § 4547, and requests that the Court disregard all such references. She contends that Plaintiff agreed to pay interim support only after she was compelled to prepare, file, and fully brief a pendente lite application and only after the urging of the Court, some two years after commencement, and that a substantial portion of the fees incurred with prior counsel was attributable to the necessity of that motion. She contends that it was Plaintiff's refusal to consent to the filing of a supplemental affirmation in Motion Sequence 001, and his refusal to contribute any portion of her interim fees, that compelled the preparation of an entire fee application. She disputes the suggestion that her attorneys bill simultaneously for identical tasks, noting that a review of the time records reflects otherwise and that she is not in fact charged $3,370 per hour.

III. Conclusions of Law

A. The Settlement Communications Are Not Properly Before the Court

As a threshold matter, the Court addresses Defendant's request that the settlement communications appearing in Plaintiff's opposition be disregarded. CPLR § 4547 provides that evidence of accepting, or offering or promising to accept, any valuable consideration in compromising or attempting to compromise a claim which is disputed shall be inadmissible as proof of the validity or invalidity of the claim, and that evidence of any conduct or statement made during compromise negotiations shall likewise be inadmissible. Detailed references to such negotiations fall within the statutory proscription (see Gottbetter v Crone Kline Rinde, LLP, 162 AD3d 579 [1st Dept 2018]; CIGNA Corp. v Lincoln Natl. Corp., 6 AD3d 298 [1st Dept 2004]). A court is reminded that, except in very limited circumstances, it cannot consider settlement negotiations among the parties in its order (see Matter of Shayne FF. v Julie GG., 221 AD3d 1202 [3d Dept 2023]).

The correspondence annexed to Plaintiff's opposition as Exhibit 1 bears the legend that it is for settlement purposes only and is not to be used in litigation (NY St Cts Filing [NYSCEF] Doc No. 107). Plaintiff's recitation of the parties' respective negotiating positions concerning custody, parenting time, maintenance duration, the valuation of the marital residence, and the deviation from the child support guideline amount is a detailed reference to compromise negotiations. The Court has accordingly disregarded NY St Cts Filing [NYSCEF] Doc No. 107 and all references in the opposition papers to the substance of the parties' settlement negotiations, and has not considered that material in determining the merits of the application. The Court observes that Defendant, having invoked the statute, is bound equally by it, and the Court has likewise disregarded her characterizations of the substance of Plaintiff's settlement positions. What remains admissible, and what the Court has considered, are the objective facts of the parties' respective financial circumstances, the procedural history of the litigation, and the counsel fees actually incurred.

B. The Statutory Framework Governing Interim Counsel Fees

Domestic Relations Law § 237 [a] provides that in any action or proceeding brought for a divorce the court may direct either spouse to pay counsel fees 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 due regard to the circumstances of the case and the respective parties, and that there shall be a rebuttable presumption that counsel fees shall be awarded to the less-monied spouse. Interim awards exist to ensure parity of resources during the pendency of the litigation so that the merits of each party's claims, rather than the depths of a party's pockets, determine the outcome.

The Court of Appeals has explained that the authority to direct one spouse to pay the counsel fees of the other is designed to redress the economic disparity between the monied spouse and the non-monied spouse and to ensure that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet (see Frankel v Frankel, 2 NY3d 601 [2004], quoting O'Shea v O'Shea, 93 NY2d 187 [1999]). The Court of Appeals has further observed that more frequent interim counsel fee awards would prevent the accumulation of bills, and that the practice of deferring pendente lite fee applications to the trial court delays the awarding of fees until final settlement or judgment and often compromises the non-monied spouse's ability to adequately litigate the case (see Frankel v Frankel, 2 NY3d at 601 [2004]). The realities of contentious matrimonial litigation require a regular infusion of funds (see Prichep v Prichep, 52 AD3d 61 [2d Dept 2008]).

The Appellate Division has instructed that a motion court errs when it relies unduly upon the parties' current incomes without weighing the earning history and earning potential of both parties and without properly considering their assets (see Saunders v Guberman, 130 AD3d 510 [1st Dept 2015]). Relevant considerations include the disparity in the parties' respective incomes, the contentiousness of the litigation, and the likelihood that the matter will be protracted (see Kaufman v Kaufman, 131 AD3d 939 [2d Dept 2015]). The non-monied spouse cannot be expected to exhaust all, or a large portion, of the finite resources available to her in order to pay her attorneys, particularly where the other spouse is able to pay his own legal fees without substantial impact upon his lifestyle (see Prichep v Prichep, 52 AD3d 61 [2d Dept 2008]; Charpie v Charpie, 271 AD2d 169 [1st Dept 2000]). Presiding Justice Prudenti's instruction in Prichep that the monied spouse not be permitted to employ a superior financial position to wear down the non-monied spouse through attrition and endless litigation remains the animating principle of the statute (see Prichep v Prichep, 52 AD3d 61 [2d Dept 2008]). Courts have accordingly awarded substantial interim fees where economic disparity is established (see Wechsler v Wechsler, 19 AD3d 157 [1st Dept 2005]; Mitnik v Mitnik, 144 AD3d 428 [1st Dept 2016]; Evgeny F. v Inessa B., 127 AD3d 617 [1st Dept 2015]; Carlin v Carlin, 120 AD3d 734 [2d Dept 2014]; Gober v Gober, 282 AD2d 392 [1st Dept 2001]).

The presumption, however, is not a license for unlimited and indiscriminate awards. The statute requires the court to consider all of the facts and circumstances of the case, including the merits of the parties' respective positions, and the jurisprudence is intended to ensure a just resolution by creating a more level playing field rather than a perverse incentive for one party to litigate without regard to cost (see Sykes v Sykes, 41 Misc 3d 1061 [Sup Ct, New York County 2013]). The determination remains one committed to the sound discretion of the trial court, controlled by the equities and circumstances of each particular case (see Patete v Rodriguez, 109 AD3d 595 [2d Dept 2013]).

C. Plaintiff Is the Monied Spouse

Upon this record the identification of the monied spouse is not a close question. Plaintiff's own sworn submissions establish earnings of $694,033 in 2022, $743,373 in 2023, and $796,945 in 2024, and further establish that even in the two years preceding that period his income exceeded $427,000 and $440,000 respectively. Defendant earned $66,589 in 2023 and approximately $71,000 in 2024, and the most she earned at any point during the marriage was $127,287 in 2019. Accepting Plaintiff's present representations at face value, his 2025 compensation consists of a base salary of $380,000, a signing bonus of $50,000, an administrative stipend of approximately $50,000 annually, and consulting income of between $1,200 and $1,500 per month, without regard to any extra shifts. Defendant's calculation that Plaintiff's minimum current income approximates $495,000 derives entirely from Plaintiff's own admissions and is not meaningfully controverted. Against that figure stands Defendant's anticipated income of approximately $92,000 for 2025 and her secured salary of $90,000 for the post-doctoral appointment running through October 31, 2026.

It bears emphasis, as Saunders instructs, that the inquiry is not confined to present income but extends to earning history and earning potential (see Saunders v Guberman, 130 AD3d 510 [1st Dept 2015]). Plaintiff does not dispute that both the reduction in his earnings and his relocation to Arizona were voluntary. The Court does not, on this interim application, resolve whether that reduction was undertaken in good faith, and expressly makes no finding on that question, which is reserved for trial. For the limited purpose of this application it suffices that a physician who earned nearly $800,000 in the year preceding the reduction, and who continues to earn in the vicinity of half a million dollars, plainly possesses an earning capacity that dwarfs that of a doctoral student and post-doctoral fellow whose peak marital earnings were $127,287. Notably absent from Plaintiff's opposition is any documentary substantiation of his present earnings; he has not produced his 2024 returns, his 2024 W-2s or 1099s, or a current paystub, while Defendant has furnished her 2024 tax information and her employment offer.

D. The Presumption Has Not Been Rebutted

Plaintiff's principal argument is that the reallocation of resources accomplished by the So-Ordered Stipulation has shifted the parties' relative positions such that the presumption is rebutted, invoking the reasoning of Scott M. v Ilona M., 31 Misc 3d 353 [Sup Ct, Kings County 2011], and Margaret A. v Shawn B., 31 Misc 3d 769 [Sup Ct, Westchester County 2011]. The argument does not withstand scrutiny on this record. In Margaret A. the presumption was found rebutted in circumstances that included the monied spouse no longer working, and even there the court granted the non-monied spouse's application for interim counsel fees notwithstanding the shift in financial resources. Plaintiff continues to work, continues to earn several multiples of Defendant's income, and retains the earning capacity reflected in his own tax history.

The Court has considered the actual resource shift produced by the So-Ordered Stipulation. The $8,000 in monthly unallocated support, together with Plaintiff's direct payment of substantial child-related expenses, materially improves Defendant's ability to meet household needs, and the Court does not discount that improvement. Those payments, however, cannot reasonably be treated dollar for dollar as unrestricted funds available for litigation, because they support both Defendant and the parties' four-year-old child and discharge obligations already fixed by this Court. Moreover, even crediting Plaintiff's methodology in full, the comparison remains approximately $150,000 against approximately $445,000, and that comparison is drawn before any consideration of the parties' markedly different earning histories and earning capacities (compare A.G. v G.S., 84 Misc 3d 1246(A) [Sup Ct, New York County 2024], in which an interim award of $100,000 issued where the monied spouse's income was $294,148.22 and the less-monied spouse's income was $104,147.16).

Nor does Plaintiff's recitation of his debt service rebut the presumption. The obligations he identifies, including the installment payments on the tax liability of $219,799, the student loans, the credit cards, and the personal loan taken to satisfy the 2022 taxes, are real and the Court does not minimize them. Defendant has raised a genuine question, by reference to the Tax Indemnification Agreement annexed as Exhibit S, whether the principal component of that liability is marital at all. The Court need not and does not resolve the character of that debt on this application. It is enough that Defendant likewise reports obligations, including one half of the loan payment to her parents and the $25,000 borrowed from them to fund her retainer, and that the record does not establish that Plaintiff is unable to make a contribution to his spouse's fees without substantial impact upon his circumstances. Defendant should not be required to exhaust the modest liquid assets available to her, or to incur further indebtedness to her parents, in order to litigate on equal footing (see Prichep v Prichep, 52 AD3d 61 [2d Dept 2008]; Charpie v Charpie, 271 AD2d 169 [1st Dept 2000]).

As to the parties' respective holdings, the record establishes that the marital estate consists of a cooperative apartment, which has been appraised pursuant to the stipulation contained in the Preliminary Conference Order and the valuation of which Defendant contests, together with retirement accounts and bank accounts. Neither party alleges that the other conceals assets. Defendant reports no credit card or other unsecured indebtedness apart from the mortgage and relatively modest student loans, and is responsible under the So-Ordered Stipulation for one half of the monthly payment upon the $100,000 Unsecured Promissory Note held by her parents. Plaintiff reports the tax liability of $219,799, student loans, credit cards, and the personal loan taken to satisfy the parties' 2022 taxes. The Court has reviewed the parties' respective Statements of Net Worth, including their reported cash and bank accounts, securities, retirement assets, interests in the marital cooperative apartment, and liabilities. Those assets and liabilities do not eliminate the substantial disparity in the parties' income, earning history, and earning capacity. A significant portion of the parties' reported assets consists of retirement assets and equity in the marital residence, which are not presently liquid and remain subject to equitable distribution. Moreover, Defendant's need to borrow $25,000 from her parents in order to fund the retainer of present counsel is probative of the limited liquidity available to her. Having considered the parties' income, assets, liabilities, support arrangements, and access to litigation funds, the Court finds that Plaintiff remains the monied spouse and that the statutory presumption has not been rebutted.

At the same time, the Court declines to adopt Defendant's characterization of Plaintiff as a litigant pursuing a strategy of attrition. Unlike the husband in Mitnik, there is no allegation here that Plaintiff conceals assets or has heavily litigated the matter before the motion court (see Mitnik v Mitnik, 144 AD3d 428 [1st Dept 2016]). Unlike the petitioner in Evgeny F., there is no evidence that Plaintiff has litigated to purposely delay the proceedings so as to cause Defendant to spend her more limited resources (see Evgeny F. v Inessa B., 127 AD3d 616 [1st Dept 2015]). Unlike the husband in Gober, Plaintiff's wealth is not in the millions of dollars, nor has it continued to amass during the pendency of the action (see Gober v Gober, 282 AD2d 392 [1st Dept 2001]). And the gross disparity that animated the award in Carlin rested upon a husband whose income exceeded $27,000,000, a figure bearing no resemblance to the present record (see Carlin v Carlin, 120 AD3d 734 [2d Dept 2014]). These distinctions do not defeat the presumption, but they bear directly upon the quantum of the award.

E. Neither the Substitution of Counsel Nor the Prospective Character of the Fees Bars an Award

Plaintiff's suggestion that Defendant is disentitled to fees because she has been represented by three law firms is unavailing. An award of counsel fees may be granted even where an attorney is discharged without cause, and incoming counsel is likewise permitted to seek fees (see Frankel v Frankel, 2 NY3d 601 [2004]; Clements v Clements, 2014 NY Slip Op 50581(U) [Sup Ct, Monroe County 2014]). The potentiality or actuality of a voluntary change of counsel is not among the factors properly considered in fixing the amount of the fee to be paid by the other spouse (see Provenzano v Provenzano, 71 AD2d 618 [2d Dept 1979]; Upbin v Upbin, 213 AD2d 629 [2d Dept 1995]).

Equally unavailing is the contention that fees may not be awarded for anticipated work. Domestic Relations Law § 237 permits the less-monied spouse to seek prospective counsel fees where the services and the amount are reasonably anticipated and sufficiently identified to permit an award in a specific dollar amount (see Avedon v Avedon, 270 AD2d 65 [1st Dept 2000]; LeRoy v LeRoy, 276 AD2d 442 [1st Dept 2000]; Feinstein v Merdinger, 305 AD2d 115 [1st Dept 2003]; Messinger v Messinger, 24 AD3d 631 [2d Dept 2005]). So too, the award of fees for time reasonably spent in making the application for counsel fees, and in proceedings relative thereto, comports with the general purpose of the statute and falls within its scope, for otherwise the more economically advantaged spouse could frustrate the statute by engaging in protracted proceedings upon the fee application itself and thereby burdening the less affluent spouse with onerous fees (see Wyser-Pratte v Wyser-Pratte, 160 AD2d 290 [1st Dept 1990]). That principle answers Plaintiff's complaint that Defendant's new counsel devoted the greater part of the retainer to the preparation of this motion, although, as set forth below, it does not answer the separate question of how much of that effort was reasonably necessary. The Court has accordingly confined the prospective portion of the award to the document discovery, deposition preparation, and near-term motion practice specifically identified in counsel's affirmation, and has fixed that portion in a sum certain rather than as an open-ended percentage of fees yet to accrue.

Finally, the Court addresses the sufficiency of the moving papers. Although Defendant's Statement of Net Worth was not contemporaneously updated with this application, the Court finds good cause to dispense with a further statement because the record contains ample current information permitting an informed assessment of the parties' relative financial circumstances. That information includes Defendant's 2024 tax information annexed as Exhibit M, her employment offer of November 2025 annexed as Exhibit O, the So-Ordered Stipulation of May 2025 fixing the support she receives annexed as Exhibit C, Plaintiff's own Statement of Net Worth filed at NY St Cts Filing [NYSCEF] Doc No. 108, and Plaintiff's sworn opposition detailing his present compensation and financial obligations. Plaintiff had access to each of these submissions and identifies no substantial right prejudiced by the age of Defendant's statement. The retainer agreement with present counsel is annexed as Exhibit A, and the billing records annexed as Exhibits R and T identify the services performed. The Court distinguishes between the two requirements. The retainer-agreement requirement has been satisfied. Although Defendant did not submit a contemporaneously updated Statement of Net Worth, the Court finds good cause to dispense with a further updated statement because the record contains ample current financial information and Plaintiff identifies no prejudice to any substantial right (see Park v Butkow, 249 AD3d 452 [1st Dept 2026], in which an interim counsel fee award was vacated without prejudice to renewal upon proper papers; A.G. v G.S., 84 Misc 3d 1246(A) [Sup Ct, NY County 2024]; CPLR § 2001). The Court makes these findings expressly so that the basis for proceeding upon the papers as submitted appears of record.

F. The Amount of the Award

The presumption favoring an award having gone unrebutted, there remains the question of amount, which is confided to the Court's discretion and governed by the equities and circumstances of the particular case (see Patete v Rodriguez, 109 AD3d 595 [2d Dept 2013]). Several considerations counsel an award materially below the $100,000 requested.

First, this is not a matter of great complexity. The marriage endured three years and nine months as measured to the date of commencement. The marital estate consists of a cooperative apartment, which has been appraised, retirement accounts, and bank accounts. No party has alleged that Plaintiff conceals assets or underreports income in the sense contemplated by Mitnik, and no valuation of a closely held business or professional practice is required, distinguishing this matter from Kaufman, where unresolved questions surrounding the accuracy of the monied spouse's gross income and the valuation of his law firm supported an enhanced award (see Kaufman v Kaufman, 131 AD3d 939 [2d Dept 2015]). In the twenty-nine months since commencement there have been no depositions, no appointment of an attorney for the child, no forensic evaluation, and no appraisals other than that of the marital apartment.

Second, a substantial portion of the fees incurred by present counsel has been consumed by this application rather than by the substantive prosecution of the action. Of the $21,817 expended before the motion was filed, approximately $15,339 is attributable to the application itself, and a further $20,208 was expended thereafter, a portion of which was devoted to the reply. While Wyser-Pratte establishes that fees incurred in applying for fees are compensable, the Court must still assess whether the effort expended was proportionate. An interim fee application in a matter of this character, brought upon a record largely assembled in Motion Sequence 001 and expressly incorporating the affirmations submitted in that motion, ought not to have consumed the greater part of a $25,000 retainer.

Third, the Court is not persuaded that Defendant is being charged an effective rate of $3,370 per hour. That figure is an arithmetic aggregation of four separate hourly rates rather than a measure of what is actually billed, and Plaintiff's own matter has been staffed by three attorneys or support personnel. The individual rates charged are not shown to be inconsistent with those ordinarily charged for matrimonial services in New York City by practitioners of comparable experience. Nevertheless, the deployment of four timekeepers upon a matter of this scope is a circumstance the Court may weigh in fixing a reasonable contribution, and it does so.

Fourth, and weighing in Defendant's favor, the record establishes a real prospect of continued litigation expense. Updated financial disclosure from Plaintiff is warranted, particularly given the absence of his 2024 tax documents and current paystubs. A deposition has not yet been taken. The parties remain apart on maintenance duration, the valuation of the marital residence, the division of retirement and bank accounts, the quantum of child support, and the parenting schedule attending Plaintiff's residence more than two thousand miles from the child. The Court is mindful that delaying the award of fees until final resolution often compromises the non-monied spouse's ability to litigate adequately, and that more frequent interim awards prevent the accumulation of bills (see Frankel v Frankel, 2 NY3d 601 [2004]; Prichep v Prichep, 52 AD3d 61 [2d Dept 2008]).

Fifth, the Court is obliged to consider Plaintiff's actual capacity to pay. He services an installment obligation to the Internal Revenue Service, carries other indebtedness, and discharges support and add-on obligations aggregating approximately $16,000 per month. An award payable in a single sum within ten days, as the moving papers request, would be inconsistent with the equities. A structured payment better accommodates the competing interests of affording Defendant a regular infusion of funds and avoiding the imposition upon Plaintiff of an obligation he cannot meet. The Court finds that two installments of $25,000 are feasible upon this record. Plaintiff's recurring annual compensation, computed from his own sworn opposition, approximates $445,000 before any extra shifts, against approximately $192,000 in annual support and add-on obligations, and his earnings in each of the three years preceding the reduction exceeded $690,000. A contribution of $50,000 discharged over sixty days represents a fraction of that recurring compensation and does not, upon this record, imperil his ability to meet his support obligations, his living expenses, or his installment agreement with the Internal Revenue Service.

Balancing the substantial and unrebutted income disparity and the disparity in earning capacity against the comparative simplicity of the issues, the absence of any showing that Plaintiff has litigated abusively, the disproportionate share of present counsel's time devoted to the fee application itself, and Plaintiff's demonstrated cash-flow constraints, the Court determines that an interim award of $50,000, payable directly to Defendant's counsel, represents a just and appropriate contribution at this juncture. The award is allocated as follows: $12,942.35 satisfies the outstanding balance presently owed to Defendant's counsel as represented in the reply papers, and the remaining $37,057.65 constitutes a reasonable contribution toward the document discovery, deposition preparation, and near-term motion practice specifically identified in counsel's affirmation and reasonably anticipated in this action. The updated time records annexed as Exhibit T reflect an outstanding balance of $12,942.35 after application of the retainer and all payments, credits, and adjustments reflected therein, and the Court accepts that sworn and documented balance as the amount presently due. The award preserves to both parties the incentive to bring this matter to an efficient conclusion. The award is made with leave to apply for such additional fees as may become necessary. This award determines only the fees incurred and reasonably anticipated by Defendant's present counsel, and it makes no determination concerning the reasonableness or allocation of the fees incurred by prior counsel. The request in Motion Sequence 001 remains pending and shall be determined upon its own record and upon the circumstances existing at the time of that determination, including the payment status of this award, Plaintiff's then-current ability to pay, and the need to avoid duplication.

The Court has considered the parties' remaining contentions and finds them either unpersuasive or unnecessary to the determination reached.

IV.Conclusion and Decretal Paragraphs

Accordingly, upon the foregoing findings of fact and conclusions of law, it is hereby

ORDERED that the branch of Defendant's application requesting that the Court disregard the settlement communications and the detailed references to settlement negotiations set forth in Plaintiff's opposition papers is GRANTED, and NY St Cts Filing [NYSCEF] Doc No. 107, together with all references in the opposition papers to the substance of the parties' settlement negotiations, has not been considered by the Court; and it is further

ORDERED that Defendant's application pursuant to Domestic Relations Law § 237 for an award of interim counsel fees is GRANTED to the extent set forth herein, and is otherwise DENIED; and it is further

ORDERED that Plaintiff shall pay the sum of FIFTY THOUSAND ($50,000.00) DOLLARS as and for a contribution to Defendant's interim counsel fees directly to Defendant's counsel of record, said sum to be paid in two equal installments of TWENTY-FIVE THOUSAND ($25,000.00) DOLLARS each, the first installment payable within thirty (30) days of service of a copy of this Decision and Order with notice of entry, and the second installment payable within sixty (60) days of service of a copy of this Decision and Order with notice of entry; and it is further

ORDERED that Defendant's request for an award of interim counsel fees in the sum of $100,000 is DENIED to the extent that it exceeds the sum awarded herein; and it is further

ORDERED that leave to apply for such additional counsel fees as may become necessary as this matter progresses is GRANTED; and it is further

ORDERED that this award is without prejudice to the pending branch of Motion Sequence 001 seeking an award of interim counsel fees payable to Defendant's prior counsel, which application shall be determined separately upon its own record and upon the circumstances then presented; and it is further

ORDERED that any relief requested and not expressly granted herein is DENIED; and it is further

ORDERED that Defendant shall serve a copy of this Decision and Order with notice of entry upon Plaintiff's counsel by NYSCEF within ten (10) days after entry thereof.

This constitutes the Decision and Order of the Court.

Dated: September 8, 2026

New York, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT

Ronald Castorina, Jr., J.