Susan K. v Marvin H.
Annotate this CaseDecided on December 22, 2004
Supreme Court, Nassau County
SUSAN K.,
against
MARVIN H., Defendant.
203964/00
Elaine Jackson Stack, J.
This is an application by Alfred Reinharz, Esq., Law Guardian for M., born April 26, 1989, A., born May 11, 1992 and T., born January 26, 1998, the children of the parties to this action, for an order providing him counsel fees, to defend against an appeal instituted by the Plaintiff.
This action for divorce, and ancillary relief, was tried before this court on February 26, 27, March 7, 11, 20, 26, April 29, May 15, 16, 28, 29, September 24, 26, October 16, 17, 30, November 1, 14 and December 11, 2002. The Court rendered a Decision After Trial on February 24, 2003; and, [*2]an Order was entered on July 30, 2003. A Judgment of Divorce dated October 30, 2003 was then entered on November 6, 2003, providing, in pertinent part, for the parties to have joint legal custody of the three children of this marriage, and for the Defendant to have residential custody of the parties' sons, M. and T. The Plaintiff filed a Notice of Appeal dated December 22, 2003, indicating her intention to appeal, inter alia, from the custody provisions in the Judgment of Divorce, set forth hereinabove. By letter dated September 20, 2004 counsel for Plaintiff notified counsel for Defendant and the Law Guardian, that Plaintiff decided to perfect her appeal, and that she must do so by October 13, 2004.
The Law Guardian now seeks an order directing the payment to him of $9,000.00 as counsel fees and $1,000.00 for the disbursements in the defense of the Plaintiff's appeal, on behalf of the parties' children. Plaintiff opposes the motion. Defendant supports same.
Plaintiff sets forth four basis for opposing this motion: (1) the Law Guardian's role in this matter was terminated upon the entry of the Judgment of Divorce and he is no longer involved in this proceeding; (2) the Law Guardian's application for fees on this appeal is improperly brought before this court; (3) the requested fee is in excess of the limitations of Judiciary Law § 35(3); and, (4) Plaintiff lacks the ability to pay the requested fee. These arguments will be addressed seriatim.
Plaintiff's reliance on Blauvelt v. Blauvelt, 219 AD2d 694, 631 N.Y.S.2d 760 (2nd Dept. 1995) and Matter of D. Children, 60 NY2d 838, 470 N.Y.S.2d 142 (1983) is misplaced. Neither of those cases involved an appeal of the underlying proceeding. Each involved the continuation of the appointment of the Law Guardian or Guardian Ad Litem beyond the termination of the proceeding involved. Contrasted with those decisions, it has been recognized that the "defense of an appeal is part of the carrying on or defense of the underlying action or proceeding" (Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law §237, at 23). See, Holloway v. Holloway, 307 AD2d 405, 762 N.Y.S.2d 681 (2nd Dept. 2003). This, apparently has been recognized by Plaintiff's counsel, who continues to notify the Law Guardian of the status of the Plaintiff's appeal and to serve the Law Guardian with all documents related to the appeal.
Similarly, the Law Guardian's application for fees to defend against the Plaintiff's appeal must be brought before this court, not the Appellate Division. Mulcahy v. Mulcahy, 255 AD2d 565, 681 N.Y.S.2d 66 (2nd Dept. 1998); Palumbo v. Palumbo, 298 AD2d 373, 751 N.Y.S.2d 401 (2nd Dept. 2002); Taft v. Taft, 135 AD2d 809, 522 N.Y.S.2d 913 (2nd Dept. 1987).
Judiciary Law § 35(3) is addressed to the assignment of counsel to indigent persons. The statute, however, "allows the court to utilize an alternative method to compensate attorneys who have been assigned to represent individuals with the financial ability to retain counsel." Plovnick v. Plovnick, 10 AD3d 84, 781 N.Y.S.2d 360 (2nd Dept. 2004). In the appointment of a Law Guardian for the parties' children, the court is "not constrained to award the statutory rates set forth in Judiciary Law § 35(3)" Stephen v. Stephens, 249 AD2d 191, 671 N.Y.S.2d 268 (1st Dept. 1998).
Having sat through nineteen (19) days of trial, resulting in a transcript in excess of 1558 pages, exclusive of the numerous motions in this matter (Affidavit of Alfred Reinharz, 10/8/04 ¶ 9), heard testimony regarding the parties' finances, and made extensive financial determinations based thereon, this court is thoroughly familiar with the Plaintiff's financial circumstances, and relies upon same, as well as its own knowledge and experience in determining the [*3]reasonableness of the Law Guardian's request. LeRoy v. LeRoy 276 AD2d 442, 715 N.Y.S.2d 231 (1st Dept. 2000); Delgado v. Delgado, 160 AD2d 385, 553 N.Y.S.2d 750 (1st Dept. 1990).
The Law Guardian's estimate of requiring thirty (30) hours to review a transcript in excess of 1558 pages, plus an additional thirty (30) hours to review the Plaintiff's briefs and to prepare a brief on behalf of his clients is not unreasonable. The request to be compensated for his services at $150.00 per hour and for $1,000.00 for the costs associated with the appeal, are not unreasonable.
Based upon the foregoing, the Plaintiff is directed to pay to the Law Guardian a retainer of $9,000.00, plus $1,000.00 in anticipated expenses, without prejudice to any further reasonable application for additional fees at the conclusion of the Plaintiff's appeal. These sums are to be paid directly to the Law Guardian within thirty (30) days of the service of this order with Notice of Entry.
In the event the Plaintiff fails to pay in accordance with this order, the clerk is directed to enter a judgment against Plaintiff Susan K. and in favor of Alfred Reinharz, Esq. for such amount upon the Law Guardian's filing an affidavit of noncompliance. DRL § 244.
Upon the completion of his services in defending against Plaintiff's appeal, the Law Guardian shall provide Plaintiff with an itemized statement of his services. If the Law Guardian's services did not exceed sixty (60) hours he shall refund to Plaintiff that portion of the retainer not earned. If the Law Guardian's costs did not exceed $1,000.00, he shall refund the balance to the Plaintiff.
This constitutes the decision and order of this court.
DATED: Mineola, New York
December 22, 2004
Elaine Jackson Stack
J.S.C.
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