Frase v Frase

[*1] Frase v Frase 2009 NY Slip Op 51759(U) [24 Misc 3d 1235(A)] Decided on July 31, 2009 Supreme Court, Westchester County Jamieson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 31, 2009
Supreme Court, Westchester County

Laura Frase, Plaintiff,

against

Jeffrey Frase, Defendant.



7915/2008



Clair, Greifer LLP

Attorneys for Plaintiff

555 Madison Avenue, 9th Floor

New York, NY 10022

Ira E. Garr, P.C.

Attorneys for Defendant

777 Third Avenue

New York, NY 10017

Linda S. Jamieson, J.

Plaintiff seeks $100,000 in interim counsel fees, as well as an order directing defendant to comply with all discovery demands, including providing copies of his check register and legal fee invoices. In response, defendant's cross-motion seeks a declaratory judgment that his employment contract and earnings associated with his employment at Lehman Brothers be found to be his separate property.

Attorneys' Fees

This case is more than a year old, with at least a dozen appearances thus far. The litigation commenced in rather a heated way, see the Decision and Order of May 9, 2008, necessitating a number of Court appearances through the summer and fall of 2008. Plaintiff states that as of April 30, 2009, she had already incurred $226,688 in attorneys' fees (essentially all of which she has paid). Defendant has only contributed $20,000 thus far to plaintiff's fees. Defendant has himself incurred over $184,000 as of May 2009 (nearly all of which was paid as of the date of the Exhibit A attached to defendant's motion). While this case is trial-ready, with a Settlement Conference presently scheduled for August 11, 2009, it is hardly close to being [*2]concluded, absent a settlement: after the Settlement Conference there will be a Pretrial Conference, with its significant document requirements (Joint Statement of Undisputed Facts, Joint Statement of Proposed Disposition, Exhibit Lists, Witness Lists, and all other requirements listed in the Court's Part Rules). Thereafter there will be the trial, and then post-trial memoranda, not to mention any possible appeals — all of which indicates that there will continue to be extensive attorneys' fees incurred by both sides (again, unless the parties choose to resolve this action).

Plaintiff presently has access to $1.3 million in assets (some of which is marital), and claims that defendant has access to "at least" $5.7 million in assets. In response, defendant states that he really only has access to $2.3 million "in cash and common equity." He does not deny that his present income is (inclusive of future bonuses and restricted stock) in the millions. In contrast, plaintiff has no income whatever, aside from the not-insubstantial support that she receives from defendant.

DRL § 237 provides for the payment of "such sum or sums of money directly to the attorney of the other 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. Such direction must be made . . . prior to final judgment where it is shown that such order is required to enable the petitioning party to properly proceed." As the Second Department held in Prichep v. Prichep, 52 AD3d 61, 65, 858 NYS2d 667 (2d Dept. 2008), there is no need for a detailed inquiry at this point as to "whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation."[FN1] Rather, the Court need only look at the disparity in resources between the parties, as well as look to whether "the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case." Id. at 65-66, 858 NYS2d 667. As the above recitation of the future course of litigation demonstrates, there is a good deal of legal work to come, and substantial additional fees are inevitable, absent a settlement. The factors articulated by the Second Department in Prichep are, thus, present here.

The Court in Prichep went on to state that the wife "cannot be expected to exhaust all, or a large portion, of the finite resources available to her in order to pay her attorneys, particularly when the husband is able to pay his own legal fees without any substantial impact upon his lifestyle." Id. at 66, 858 NYS2d 667. This statement perfectly applies to the instant case. (The papers show that defendant has traveled extensively for pleasure, often being accompanied by a companion for whom he pays at least certain expenses. He has also recently acquired a second car, according to plaintiff.) Accordingly, the Court awards plaintiff $50,000 in interim counsel fees, to be paid by defendant to plaintiff's counsel on or before August 10, 2009.

Discovery

With respect to the issues concerning discovery, defendant states that he will produce "any outstanding documents for [sic] which plaintiff is entitled." Accordingly, defendant will produce his 2009 check registers, attorney billing records (with any privileged materials [*3]redacted), and benefits information from Barclay's and JP Morgan Chase on or before August 10, 2009.

Defendant's Motion

With respect to defendant's motion to declare that his Lehman Brothers earnings are his separate property, the Court determines that, as defendant apparently concedes, the attorneys' agreement as to the cut-off date is not binding on the Court or the parties. However, the Court does find that that agreement is indicative of the parties' views at that time, and can certainly take it into account in fixing the appropriate valuation dates for any assets in this case. See Taverna v. Taverna, 56 AD3d 461, 867 NYS2d 479 (2nd Dept. 2008).

Next, the Court rejects plaintiff's position that the date on which defendant signed his contract with Lehman Brothers, May 10, 2007, was the date that defendant earned the right to the compensation. This position makes no sense in light of the fact that this compensation arises in the context of an employment agreement, where the compensation relates directly to defendant's work for the company; with no work, there would be no compensation, regardless of the agreement. See generally American Capital Access Service Corp. v. Muessel, 11 Misc 3d 1066(A), 816 NYS2d 693, 2005 WL 3878980 (Sup. Ct. NY Co. Oct. 18, 2005) (employment agreement was executory contract, with performances due on both sides). Plaintiff's position equates an employment agreement with a contract for the sale of goods, which this certainly is not. Therefore, the Court determines that defendant did not become entitled to his Lehman Brothers earnings on May 10, 2007, but only after he began work there.

Lastly, on these papers, the Court cannot determine the issue of whether any of these assets were commingled, such that the post-commencement earnings became marital property. It appears that defendant never placed any of this income in any joint account. Yet plaintiff argues that because some marital funds were in defendant's sole accounts, at the time that the earnings were deposited therein, the income became marital by commingling with the marital funds that defendant had in his sole accounts. Plaintiff cites no case law in support of this position — nor, for that matter, does defendant cite any cases in support of his position. Should the parties proceed to trial on this issue, counsel will be directed to submit memoranda of law in support of their respective positions.

All other requests for relief are denied. The foregoing constitutes the decision and order of the Court.

Dated:White Plains, New York

July, 2009

____________________________

HON. LINDA S. JAMIESON

Justice of the Supreme Court

To:

Clair, Greifer LLP

Attorneys for Plaintiff

555 Madison Avenue, 9th Floor

New York, NY 10022 [*4]

Ira E. Garr, P.C.

Attorneys for Defendant

777 Third Avenue

New York, NY 10017 Footnotes

Footnote 1:Unfortunately, the parties did precisely this in their blame-filled papers. However, as the Court is rather familiar with the course of the proceedings, the detailed recitation of who was responsible for which explosion was unnecessary at best.