Justin v Justin
Annotate this CaseDecided on April 20, 2010
Supreme Court, New York County
Andrew Justin, Plaintiff,
against
Tricia Justin, Defendant.
311142/08
Appearances of counsel:
For the Husband:
Ira Garr, P.C.
777 Third Avenue
New York, NY 10017
For the Wife:
Schlissel Ostrow Karabatos, LLC
200 Garden City Plaza, Suite 301
Garden City, NY 11530
Deborah A. Kaplan, J.
In this action for divorce and ancillary relief, defendant-wife Tricia Justin moves, pursuant to Domestic Relations Law § 237 (a), for an order awarding her an interim award of counsel fees and disbursements in the amount of $31,691.43.
In its order dated April 15, 2009, this court ordered the husband to pay $85,000 towards the wife's counsel fees in three equal installments. Since the husband failed to make these payments, the wife sought enforcement of the order, which resulted in the issuance of two separate money judgments entered on July 27, 2009, and July 28, 2009, in the amounts of $56,666, and $28,333, respectively. To enforce the money judgments, the wife's former counsel, Schlissel Ostrow Karabatos, PLLC, retained Strassberg & Strassberg P.C. (the Strassberg Firm). After paying collection fees to the Strassberg Firm, the Schlissel firm sustained a net loss of $17,276.47.
The wife now seeks an order awarding her additional pendente lite counsel fees for the outstanding fees owed to the Schlissel Firm, consisting of the collection fees paid to the Strassberg Firm, together with additional fees incurred to, inter alia, enforce the husband's obligations of pendente lite support and counsel fees, and his compliance with court-ordered discovery. The wife acknowledges that she previously received an award of interim counsel fees in the instant action. She, maintains, however, that she requires additional interim counsel fees, since she has been forced to expend the fees previously awarded, not only to defend the action, [*2]but to also collect the fees ordered by this court, due to the husband's obstructionist conduct in failing to comply with court orders. She alleges that her income, consisting of the pendente lite support ordered by this court, is inconsistently paid by the husband, thus requiring her to incur significant liabilities to third parties for her living expenses. She further contends that, without an award of counsel fees, she, as the non-monied spouse, will be at a complete disadvantage in this action.
The wife's counsel maintains, inter alia, that the husband's pattern of withholding court-ordered payments in this action is consistent with his behavior in the parties' previous Nassau County matrimonial action, wherein he refused to pay the pendente lite support awarded to the wife in that court; in that action, the wife was forced to obtain a money judgment for the support arrears of $171,000, and retain a collection attorney to enforce the judgment. Counsel further contends that the husband's recalcitrant conduct in this action required time and resources to be expended in seeking his compliance with payments and discovery ordered by this court, and mandated the retainment of the Strassberg Firm to collect on the money judgments issued in this action. The wife's counsel thus argues that the husband's obstructionist actions, together with the disparity in the parties' financial circumstances, warrant the granting of the wife's instant application for a further award of pendente lite counsel fees.
The husband's counsel opposes the wife's application, contending that the Schlissel Firm has secured its right to collect its fees by agreeing to accept a charging lien for the release of the file, and therefore, the Schlissel Firm should not be provided with another remedy. Counsel further maintains that the wife should be able to pay her counsel from her recent collection of a money judgment in the amount of $177,000 for support arrears awarded by the Nassau County Supreme Court in the prior matrimonial action.
An award of interim counsel fees is within the discretion of the court (DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]; Dodson v Dodson, 46 AD3d 305 [1st Dept 2007]). Pursuant to Domestic Relations Law (DRL) § 237 (a), a court in a divorce action may award counsel fees to a 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." This section "is designed to redress the economic disparity between the monied spouse and the non-monied spouse" (O'Shea v O'Shea, 93 NY2d 187, 190 [1999]). It also allows an attorney who has been discharged without cause, as in the instant case, to proceed against the monied spouse in the matrimonial litigation for an award of counsel fees (Frankel v Frankel, 2 NY3d 601 [2004]). Further, the Schlissel Firm's agreement to accept a charging lien for the release of the file does not preclude it from pursuing its other remedies to recover for its legal services (see Levy v Laing, 43 AD3d 713 [1st Dept 2007]; Butler, Fitzgerald & Potter v Gelmin, 235 AD2d 218 [1st Dept 1997]).
Here, the wife is the non-monied spouse, whose sole source of income is derived from the pendente lite support ordered by this court, which according to the wife, and not disputed by the husband, has been inconsistently paid by the husband. The husband's net worth statement discloses that he has significantly greater financial resources at his disposal than the wife. Additionally, aside from the in-court activities, the detailed invoices of the Schissel Firm reflect that phone calls, letters, and repeated court intervention were required to obtain the husband's compliance with this court's orders for interim counsel fees, real estate appraiser fees, and [*3]discovery production, in addition to time spent to prepare opposition papers in response to the husband's various unsuccessful motions. Thus, this court finds that the wife was required to incur substantial legal fees for additional hours expended by the Schissel Firm, and expenses by the Strassberg Firm for the enforcement of the money judgments for counsel fees, that were clearly caused by the contentious and recalcitrant conduct of the husband. Thus, under the circumstances of the within action, an award herein is necessary to prevent the monied spouse from wearing down the non-monied spouse (see Karas-Abraham v Abraham, 46 AD3d 296 [1st Dept 2007]; Stella v Stella, 16 AD3d 109 [1st Dept 2005]).
While the husband's counsel argues that the wife has funds available due to her recent collection of a money judgment for support arrears, she should not be expected to exhaust all or a large portion of the finite resources available to her in order to pay her counsel fees, particularly when the husband is primarily responsible for the additional fees and the protracted litigation.
Therefore, the wife's application for additional interim counsel fees is granted, and the court awards her the sum of $31,691.43 as and for her additional interim funds to be paid by the husband directly to the Schlissel Firm within 20 days of the date of entry of this decision.
The wife also seeks leave to enter judgment against the husband for the fees awarded, without further court intervention, in the event that he fails to pay the court-ordered sum as directed. This court is aware of the husband's failure to comply with court-ordered directives, including his support obligations in the prior matrimonial action in the Nassau County Supreme Court, and the previous counsel fees awarded in the instant matrimonial action. Since this court finds that the husband has been obstructionist in complying with court orders, this branch of the wife's application is also granted.
Accordingly, it is
ORDERED that the wife's application for additional interim counsel fees is granted, and the husband is directed to pay the Schlissel Firm the sum of $31,691.43 within 60 days of the date of entry of this decision; and it is further
ORDERED that, in the event that the husband fails to comply with payment of the counsel fees awarded to the wife as directed, the Schlissel Firm, upon such default, may thereafter enter a judgment against the husband in the amount of the ordered counsel fees, less any credits for any sums paid toward counsel fees, 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 Schlissel Ostrow Karabotos, PLLC and against the husband Andrew Justin, and Schlissel Ostrow Karabotos, PLLC shall execute thereon.
This constitutes the decision and order of this court.
Dated: April 20, 2010
ENTER:
_______________________
J. S. C.
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