Medina v Medina
Annotate this CaseDecided on December 17, 2013
Supreme Court, Westchester County
AGNIESZKA MEDINA, Plaintiff,
against
JOSEPH MEDINA, Defendant.
2162/2011
Marcia E. Kusnetz, Esq.
Attorney for Plaintiff
800 Westchester Avenue, Suite 412-S
Rye Brook, New York 10573
Isaiah Vallejo-Juste, Esq.
Law Offices of Steven E. Rosenfeld, P.C.
Attorneys for Defendant
777 Third Avenue, 24th Floor
New York, NY 10017
Charles D. Wood, J.
This action for divorce was commenced on January 4, 2011. During six days of May and June, 2012, a non-jury trial was conducted on the issues of parental access, equitable distribution, allocation of marital debt and tax arrears, child support and maintenance (and arrears of both). The plaintiff ("wife"), and the defendant ("husband"), were represented by counsel. On March 29, 2013, this court rendered its Decision After Trial, and advised the parties to attempt to resolve the issue of attorney fees before seeking court intervention. On November 18, 2013, after the parties had no success, a hearing was held on the wife's application for counsel fees. Both parties and their attorneys were present, and the parties testified and were cross-examined. The court considered the testimony elicited at the trial and the fee hearing, the exhibits entered into evidence, and the parties' post trial submissions in making its determination.
By way of background, the parties were married on November 10, 2001, in a civil ceremony in White Plains. The parties have one minor child, who is now five years old. Both parties are 38 years old. The wife attained the equivalent of a bachelor's degree in Poland. During the marriage, she earned her real estate license. For the last two years, she has worked selling real estate directly for a developer. Before that, she was unemployed for a year and a half, after having worked in a sales position for another developer for six years. In 2011, she earned $87,000, and in 2010, $58,936.
Prior to the marriage, the husband held licenses to sell insurance, securities, and a Series 7 certification. The day before commencement of this matrimonial action, the husband was laid off as an investment advisor with the firm for whom he had been working since 2006. In 2011, the husband worked for a securities firm, and earned $87,911.47. He now works for another securities firm, where his income is based solely on commissions.
NOW, based upon the foregoing, the wife's application for counsel fees is decided as follows:
During the counsel fee hearing, the court observed that the husband's testimony alternated between disingenuous and incredible (not unlike his testimony at the trial in this matter). Among other things, the husband feigned ignorance of a letter to the wife's counsel that he obviously wrote, refused to acknowledge his own handwriting, and generally gave evasive answers and shrugged his shoulders. On the other hand, the wife was candid and forthcoming in her responses. After carefully evaluating the evidence and assessing the credibility of the witnesses, the court finds the wife to be infinitely more credible than the husband.
The court now considers the merits of the wife's application for an award of counsel fees of over $63,000, of which the wife has already paid $25,000, to her counsel. To support the instant counsel fee application, the wife's attorney submitted time sheets that show the [*2]voluminous time spent by the wife's counsel in this matrimonial matter, and that her hourly rate is $400 per hour.
"An award of counsel fees pursuant to Domestic Relations Law §237(a), is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case" (Prichep v. Prichep, 52 AD3d 61,64 [2d Dept 2008]); Carr-Harris v. Carr Harris, 98 AD3d 548,552 [2d Dept 2012]). In other words, in determining the application, the court will consider the financial circumstances of both parties, together with all other circumstances of the case, including the relative merit of the parties' positions, "their ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances" (Grumet v. Grumet, 37 AD3d 534,536 [2d Dept 2007]).
The intent of the provision is to create a more level playing field with respect to each party's ability to pay counsel fees, and "to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence" ( Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL C237:1). The amount that a party receives in equitable distribution is relevant to the issue of counsel fees (Morrongiello v. Paulsen, 195 AD2d 594, 597 [2d Dept 1993]). A court may also take into consideration a party's large distributive award, and possession of substantial assets which are sufficient to enable that party to pay litigation expenses, especially if after an equitable distribution award the parties' financial condition is fairly similar (Grumet v. Grumet, 37 AD3d 534, 536-537 [2d Dept 2007]; Chase v. Chase, 208 AD2d 883,885 [2d Dept 1994]). Moreover, the court may consider a party's superior earning power and whether a party engaged in conduct or tactics which unnecessarily prolonged the litigation resulting in the other party incurring otherwise unnecessary legal fees (Nee v. Nee, 240 AD2d 478,479 [2d Dept 1997]; Chamberlain v. Chamberlain, 24 AD3d 589,595 [2d Dept 2005]; Powers v. Wilson, 56 AD3d 639,641 [2d Dept 2008]). In considering a counsel fee application, the trial court must review "the difficulty of the questions involved, the skill required to handle the case, specifics as to the time and labor required, the attorney's experience, ability and reputation, and the customary fee charged for similar services" (Sand v. Lammers, 150 AD2d 355,356 [2d Dept 1989]).
"Matrimonial litigation in New York is expensive. It has been repeatedly recognized that in a fiercely contested case, the costs of the litigation can consume the marital estate of even an affluent couple" (Charpie v. Charpie, 271 AD2d 169, 170-171 [2d Dept 2000]). "An award of an attorney's fee is designed to redress the economic disparity between the spouses, it is not intended to address a party's decision to proceed to trial rather than agree to a settlement" (Comstock v. Comstock, 1 AD3d 307, 308 [2d Dept 2003], citing O'Shea v. O'Shea, 93 NY2d 187 [1999]).
Here, the husband clearly earned more than the wife during the marriage. In 2008, the wife gave birth to the parties' son, and only worked half the year. She also stayed home with the child in 2009.
During the course of this litigation, the husband unnecessarily escalated the wife's counsel fees in some of the usual, unsurprising, garden-variety ways. He failed to comply with court orders; he was constantly in arrears on support; and he failed to pay the wife significant unreimbursed medical and child care costs. He was late to court. He failed to timely comply [*3]with discovery requests and deadlines, and also failed to provide financial disclosures.
Beyond the typical conduct of a bitter and entrenched matrimonial litigant, the husband found new and unique ways of causing higher and unnecessary counsel fees to be incurred by the wife. For example, only while under cross-examination, the husband stared blankly, and either was confused or feigned confusion. His demeanor virtually confirmed the wife's testimony regarding the husband's alcohol and drug abuse. Frankly, at times he appeared to be having trouble getting the synapses in his brain to fire, yet it never seemed to inhibit his ability to be combative. He repeatedly offered only vague and obtuse answers, making it nearly impossible to assess his true earnings and earnings capacity. In eight years as a full-time judgepresiding in multiple counties over matrimonial, criminal, and civil cases—this witness was the most consistently obstructive, least cooperative, cagiest, least candid witness that the court has observed. He frequently smirked and appeared to enjoy himself as he engaged in what appeared to him to be a verbal boxing match with opposing counsel. However, all too often the husband's false bravado and clownish behavior only left his chin exposed. Presumably, the husband read the court's Decision After Trial. But like a thoroughly beaten boxer hearing the judges' lopsided unanimous decision go against him, and then having had plenty of time to consider retirement, he's back. The husband eagerly stepped back in the ring with opposing counsel, punch-drunk as ever, for the hearing on fees. If nothing else, he was consistent, except this time he took a pratfall onto the canvas, mere moments after the bell rang.
In sum, the husband's willingness to lie was only exceeded by his arrogance, which apparently permits him to believe that the court might possibly buy the bridge he is selling. The world in which Mr. Medina lives, is at best in a parallel universe. Based upon the record, the court finds that the husband prolonged the litigation in bad faith, causing the wife to incur significantly higher attorneys fees than reasonably should have been necessary.
In this matrimonial action, the marital property was indeed equitably distributed, and support to the wife was properly calculated. However, the financial circumstances of the parties at the end of the day are not on par, based upon the husband's earnings potential, and the continued financial difficulties he continues to bring upon the wife due to his failure to meet his obligations. Therefore, even after taking into consideration the maintenance and child support already awarded to the wife, the court finds that the husband has superior earning power. The court has considered the financial circumstances of the parties, and that the wife was subjected to higher fees due to the conduct of the husband. Thus, the court believes that this is an appropriate case to award counsel fees. The wife's counsel properly submitted her time records and set forth appropriate evidence of the services provided in this matrimonial litigation (Cervone v. Cervone, 74 AD3d 1268,1269 [2d Dept 2010]).The court also reviewed the value of counsel's services, her history before the court in other matrimonial matters, the immense time and effort devoted to the action, the nature of the services, the complexity of the matters and the results achieved. The wife's counsel made many attempts to determine the husband's finances, by sending discovery requests, interrogatories, and subpoenas, but was stymied by the husband's lack of cooperation. In light of the husband's recalcitrance and obstructionist tactics, which delayed the proceedings and increased the legal fees incurred by the wife, including the wife having to bring actions to enforce the court's orders, the court awards the wife $53,000 in counsel fees. This sum shall be paid by the husband directly to the wife, within 90 days of this Decision [*4]and Order. The court deems this award of counsel fees and expenses to be reasonable under these circumstances (Theroux v. Theroux, 145 AD2d 625,628 [2d Dept 1988]). NOW, therefore, it is hereby:ORDERED, that, in the event that the husband, Joseph Medina, fails to comply with payment of counsel fees of $53,000 to the wife, Agnieszka Medina as directed, upon such default, Agnieszka Medina may enter a judgment against Joseph Medina in the amount of $53,000 plus interest, less any credits for any sums paid toward this counsel fee award, without further notice. Upon service of a copy of this Order, and an appropriate affidavit of default upon the Clerk of the Court, the Clerk is directed to enter said money judgment in favor of Agnieszka Medina, and against Joseph Medina, and Agnieszka Medina shall execute thereon.
CONCLUSION
The court has considered the additional contentions of the parties not specifically mentioned herein and finds them to be without merit.
This constitutes the Decision and Order of this Court.
Dated:White Plains, New York
December 17, 2013
HON. CHARLES D. WOOD
Justice of the Supreme Court
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
