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Supreme Court, Appellate Division, First Department, New York.

IN RE: Scott BALBER, Petitioner–Appellant, v. Elise ZEALAND, Respondent–Respondent.


Decided: February 14, 2019

Renwick, J.P., Manzanet–Daniels, Oing, Moulton, JJ. Kaminer Kouzi & Associates LLP, New York (Jennifer Kouzi of counsel), for appellant. Advocate, LLP, New York (Jason A. Advocate of counsel), for respondent.

Order, Supreme Court, New York County (Laura E. Drager, J.), entered June 29, 2017, which awarded respondent mother $ 35,000 in interim counsel fees;  and order, same court and Justice, entered April 12, 2018, which, to the extent appealed from as limited by the briefs, awarded her additional interim counsel fees of $ 85,000, unanimously affirmed, without costs.

Supreme Court appropriately relied on Domestic Relations Law § 237(b) in awarding the mother fees on her initial application, and could have relied on it again in its second award.  The statute's plain language disproves appellant father's arguments about the statute's inapplicability to custody disputes between unmarried parents, as it contemplates a fee award to a “spouse” or “parent” in custody proceedings either arising under Domestic Relations Law § 240 or otherwise.  Brentrup v. Culkin, 167 Misc.2d 211, 639 N.Y.S.2d 247 (Sup. Ct., N.Y. County 1996), which held that § 240 does not apply to children of unmarried parents, only highlights the wider breadth of § 237, which covers not only § 240 proceedings, but other custody proceedings as well.

Pierot v. Pierot, 49 A.D.2d 838, 373 N.Y.S.2d 592 (1st Dept. 1975), cited by Brentrup, did not concern custody.  Unlike here, it concerned parties who were once married.  Moreover, as it predated the Equitable Distribution Law, it is superceded.

This and other courts have accordingly awarded counsel fees to an unmarried parent in a custody dispute on Domestic Relations Law § 237(b) grounds (see e.g. Matter of Brookelyn M. v. Christopher M., 161 A.D.3d 662, 77 N.Y.S.3d 390 [1st Dept. 2018];  Matter of Renee P.-F. v. Frank G., 161 A.D.3d 1163, 79 N.Y.S.3d 45 [2d Dept. 2018], lv denied 2018 N.Y. Slip Op. 90461, 2018 WL 6494308 [2018];  Evgeny F. v. Inessa B., 127 A.D.3d 617, 8 N.Y.S.3d 182 [1st Dept. 2015];  Matter of Ralph D. v. Courtney R., 123 A.D.3d 635, 999 N.Y.S.2d 416 [1st Dept. 2014];  Allen v. Farrow, 197 A.D.2d 327, 611 N.Y.S.2d 859 [1st Dept. 1994], lv denied 86 N.Y.2d 709, 634 N.Y.S.2d 443, 658 N.E.2d 221 [1995] ).  Family Court Act article 4, as the father contends, is limited to support proceedings;  however, the mother did not base her pendente lite application on Family Court Act § 438.  In any case, the issue is academic since the $ 85,000 fee award was authorized under Domestic Relations Law § 237(b).

The $ 120,000 total award, far less than the $ 225,000 total fees requested, was well within the court's discretion (see Matter of Thomas B. v. Lydia D., 120 A.D.3d 446, 991 N.Y.S.2d 512 [1st Dept. 2014] ).  The father conceded he was the more affluent party, and the court providently exercised its discretion so as “to further the objectives of litigational parity” (O'Shea v. O'Shea, 93 N.Y.2d 187, 193, 689 N.Y.S.2d 8, 711 N.E.2d 193 [1999] ).  It expressly took into consideration the very issues raised by the father on appeal, including that the mother had made most of the motions in the case, that she did not include, in her scheduled assets, the diamond engagement ring he had given her, that she had tried to involve the Administration for Children's Services based on unfounded allegations, and that she had further proliferated the litigation by commencing an action in Connecticut and serving subpoenas unlikely to result in relevant discovery.  The court properly took these factors into consideration in awarding her only 53% of the fees she sought.

The father faults the mother for not saving more money to pay her own fees, but even if she “had the funds to pay her attorneys, that is not in itself a bar to an award of counsel fees” (Anna–Sophia L. v. Paul H., 52 A.D.3d 313, 315, 860 N.Y.S.2d 510 [1st Dept. 2008] ).  He reasonably complains about her failure to timely disclose her job offer to the court, but her lack of candor had no apparent impact.  The court expressed skepticism that she had been seeking employment as diligently as she claimed, and thus at least impliedly rendered its decision with her earning potential in mind (Saunders v. Guberman, 130 A.D.3d 510, 14 N.Y.S.3d 334 [1st Dept. 2015] ).

An evidentiary hearing was not required before making these interim awards (Brookelyn M., 161 A.D.3d at 663, 77 N.Y.S.3d 390).

We have considered the parties' remaining arguments and find them unavailing.