Maher v Maher

[*1] Maher v Maher 2014 NY Slip Op 24398 Decided on December 18, 2014 Supreme Court, Rockland County Eisenpress, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 18, 2014
Supreme Court, Rockland County

Junelli Maher, Plaintiff,

against

Edward Maher, Defendant.



2014-00002



Appearances of Counsel:

Robert S. Sunshine, P" target="_blank">Gregory v. Gregory, 109 AD3d 616, 970 N.Y.S.2d 603 (2d Dept. 2013) the Court addressed this issue in the context of counsel fees in a child support case. The parties litigated a child support proceeding in Family Court and reached a resolution of their issues. An order of support was signed and the parties executed an agreement, without the attorney's knowledge, in which each party agreed to pay his or her own counsel fees. The attorney subsequently filed a motion for counsel fees and both the Support Magistrate and the Family Court Judge dismissed the motion on the basis that the attorney's claim was barred by [*2]virtue of the parties' agreement. The Appellate Division, Second Department held that "the stipulation of settlement executed by the petitioner and the respondent was not binding on [the attorney], who was not a party to the stipulation." 109 AD3d at 616 (brackets added). The matter was remitted to the Family Court to consider whether the attorney was entitled to fee pursuant to F.C.A. § 438. Thus, the law is clear that simply because parties agree that they will not seek counsel fees from the other, an attorney is not barred from making an application for fees from the adverse spouse where appropriate.

Here, Mr. Sunshine argues that D.R.L. § 237 is the appropriate basis upon which he may make his application for fees. Former counsel relieved without cause in a matrimonial action is undoubtedly permitted to seek counsel fees from a monied spouse in a divorce case. See Frankel v. Frankel, 2 NY3d 601, 814 N.E.2d 37, 781 N.Y.S.2d 59 (2004). While Mr. Sunshine clearly has standing to seek fees, this Court must determine whether it is appropriate to award "interim" counsel fees to a former attorney under D.R.L. § 237 when all issues in the case have been resolved via stipulation, and when the case is on the cusp of being fully concluded.

The statute itself states that fees should be awarded to "enable the other party to carry on or defend the action or proceeding" and "to assure that each party shall be adequately represented." D.R.L. § 237(a). This suggests that the intent of the statute was to assist the financially disadvantaged spouse from being able to retain and maintain counsel throughout the entirety of the divorce action. However, the Court of Appeals noted in O'Shea v. O'Shea, 93 NY2d 187, 192, 711 N.E.2d 193, 196, 689 N.Y.S.2d 8, 11 (1999) that D.R.L. § 237 specifically deleted the clause "during the pendency" of the action and that this

deletion is critical . . . . The statute allows the court to [award fees] at any time after the start of the action up through the entry of final judgment. Our interpretation is based on the Legislature's obvious and purposeful omission of the phrase "during the pendency," in support of its goal of expanding judicial discretion in allocating legal expenses.

(Ellipses and brackets added). The Court held in O'Shea that the wife was entitled to seek fees not only for her representation during the pre-trial proceedings and the 12-day trial but also for counsel fees hearings in connection with her requests for the husband to pay all of her counsel fees for the entirety of the legal proceedings. Id. In so holding, the Court stated that "it is a matter of discretion, to be exercised in appropriate cases, to further the objectives of litigational parity, and to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation. This is in keeping with this Court's holding in DeCabrera v. Cabrera-Rosete, 70 NY2d 879 (1987), that flexibility and judicial discretion are essential devices in adjusting financial disparities in litigation." Id. at 194 (internal citations omitted)(emphasis added).

In the instant case, Mr. Sunshine contends that Defendant engaged in certain dilatory tactics, such as refusing to comply with discovery demands, which resulted in prolonged litigation and more fees. If those allegations are true, then the Court of Appeals' language in [*3]O'Shea, supra, suggests that this Court ought to consider evening the playing field and awarding fees to Plaintiff's former attorney for such tactics on Defendant's part.

Five years later in Frankel, supra, the Court of Appeals once again had to determine the issue of counsel fee awards in matrimonial cases pursuant to D.R.L. § 237. In that case, the parties tried their custody case over 32 days and the trial court had issued two interim counsel fee awards in the wife's favor during the litigation. 2 NY3d at 605. Eighteen days after the conclusion of the trial, the wife discharged her counsel without cause and the attorney filed an application for fees against the husband. Id. The trial court ordered hearing on the issue of counsel fees. On appeal, the Appellate Division determined that the former attorney lacked standing to pursue the adverse party for counsel fees. Id. The Court of Appeals reversed and held that the former attorney had standing to seek fees in a divorce case from the other spouse. The Court stated, "If lawyers terminated without cause lose their right to petition the court for a fee award from an adversary spouse, the less affluent spouse would suffer the consequences. The spouse with ready and ample funds would have a wide choice of counsel, and the financial wherewithal to maintain the litigation, while the nonmonied spouse would struggle to find a lawyer who might have to go unpaid." Id. at 607. The Court indicated that the broad discretion given the trial court to award fees pursuant to D.R.L. § 237 anytime prior to entry of the final judgment "enable a global settlement that takes into account property distribution and other equities that affect the outcome. Otherwise, the case would be `settled,' leaving unadjudicated the amount of the attorney's rightfully earned fees and shifting the venue to a plenary proceeding—another lawsuit, with the unpleasant prospect of a judgment against the nonmonied spouse." Id. Such language suggests that despite the resolution of ancillary issues to the divorce, precluding the attorney of a less-monied spouse to seek counsel fees from the other spouse prior to entry of a final judgment of divorce may lead to a financially inequitable outcome for the financially disadvantaged spouse.

There is no evidence in the record that Defendant has stipulated to an award of counsel fees being made solely on the basis of affirmations and affidavits. To the contrary, his submission of the Plaintiff's notarized statement in which she accepts full responsibility for the counsel fees owed Mr. Sunshine demonstrates that he is objecting to any orders directing him to pay fees to Plaintiff's former counsel. Accordingly, Defendant is entitled to an evidentiary hearing on the issues presented in Mr. Sunshine's motion. See O'Connor v. O'Connor, 89 AD3d 703, 932 N.Y.S.2d 147 (2d Dept. 2011); Sommers v. Sommers, 25 AD3d 685, 807 N.Y.S.2d 308 (2d Dept. 2006). This Court will hold a hearing to "explore the relative financial circumstances of the parties and to afford the defendant a meaningful way of testing the attorney's claims relative to time and value." Patterson v. Patterson, 302 AD2d 507, 508, 755 N.Y.S.2d 280, 281 (2d Dept. 2003)(internal quotation marks, citations and brackets omitted). The matter is hereby scheduled for an evidentiary hearing on January 13, 2015 at 2:00 p.m., and all parties shall appear on that date unless Defendant submits to this Court evidence that he stipulates to this Court determining the issue of counsel fees on the submitted papers without further hearing. Plaintiff is not a party to this application, so her appearance at the hearing is not required.

Dated: December 18, 2014

SO ORDERED:

____________________________________

Hon. Sherri L. Eisenpress, A.J.S.C.