Gluck v Gluck
Annotate this CaseDecided on January 7, 2013
Supreme Court, Nassau County
Kristen Gluck, Plaintiff,
against
Michael Gluck, Defendant.
202229/2010
Attorney for Plaintiff
Lisa R. Schoenfeld, Esq.
Schlissel, Ostrow, Karabatos, PLLC
200 Garden City Plaza, Ste. 301
Garden City, NY 11530
Attorney for Defendant
Mary Ann Aiello, P.C.
666 Old Country Road, Ste. 302
Garden City, NY 11530
Daniel R. Palmieri, J.
The motion of defendant-husband for an award of legal fees pursuant to DRL §237 is granted to the extent set forth herein. The Cross Motion by plaintiff-wife for counsel fees and sanctions is denied.
Following a trial of 13 mostly consecutive days in August - September 2012, immediately after which the Court delivered its decision on the record, the parties agreed by written stipulation that the Court could consider legal fee applications from both parties on submitted papers. These motions ensued. Redgrave v. Redgrave, 304 AD2d 1062, 1066 (3d Dept. 2003); Osborn v. Osborn, 144 AD2d 350 (2d Dept. 1988); cf., Hill v. Hill, 74 AD3d 189 (2d Dept. 2010).
Defendant requests that the plaintiff pay $125,000.00 in counsel fees for services rendered by two different law firms that he had engaged to represent him in this action.
The trial was conducted by Mary Ann Aiello, Esq., (Aiello) who was retained on January 2, 2012, and who represents defendant on this application. [*2]
Specifically, in his notice of motion, defendant seeks a total of $125,000.00 of which $53,000.00 should be payable to Aiello and the balance to him.
Before retaining attorney Aiello, defendant had engaged Klemanowitz, Holmquist & Vande Stouwe, LLP (KHV) from September 2010 - January 2012, for whom he seeks fees of $19,284.50, included in the $125,000.00 figure.
On October 24, 2012, after the Court issued its Decision and Order on the issues of custody and parental access the parties entered into a stipulation regarding child support and certain holidays, thus obviating the order of this Court regarding the submissions of written memoranda on the child support issue. Pursuant to the latest stipulation, certain child care expenses were apportioned 80% to plaintiff and 20% to defendant and the Court adopts these proportions as appropriately based on the incomes of the parties..
As noted, the trial was conducted by Aiello, who also negotiated stipulations in March 2012 regarding the sale of the marital residence and in August 2012, on the issues of equitable distribution and maintenance, thus, eliminating those issues from the trial. After the trial, the parties settled the issue of child support and certain holiday visitation.
Defendant's application is supported by his own affidavits, the affirmations of Aiello, copies of retainer agreements and billing statements from each of the above law firms which reflect a range of hourly billing rates from $350.00 (KHV) up to $400 (Aiello). However, notably absent from defendant's submission is any affidavit or evidence from KHV, attesting to or in support of the rates billed, the time expended, the reasons for the time expended or the goals achieved.
In opposition, plaintiff contends that defendant's obstructionist tactics and unreasonable demands unnecessarily prolonged and delayed the action, and unnecessarily added to her total fees.
Each party has submitted copies of their 2011 income tax returns showing defendant's income at $89,695.00 and plaintiff at $365,287.00. Defendant has also submitted a 2012 year to date statement dated November 2012 showing wages of $82,123.00 (including medical and dental deductions). Although defendant's income tax return shows a slightly lower amount, the Court has employed the income amount in his submission.Neither side has made any claims that any additional income should be imputed to the other.
Plaintiff states in her affidavit that she has incurred legal fees in excess of $200,000.00 and has attached copies of numerous bills rendered to her in the past three years. Neither party has claimed that the bills of opposing counsel are excessive or not reflective of work performed. Plaintiff's principal objection to defendant's claim is that defendant engaged in obstructionist tactics by going to trial and unreasonably refusing to settle.
The authority to award attorney's fees in an action for divorce is contained in DRL §237(a) which permits a Court to direct that counsel fees may be awarded to enable a party to carry on or defend the action. This section requires affidavits from the party [*3]seeking the award, as well as, their respective attorneys. Defendant has satisfied the affidavit requisites as to himself and Aiello but not as to KHV, his prior counsel.
The billing statements of KHV constitute inadmissible hearsay and thus do not support defendant's claim for reimbursement for such fees. Denton v. Barr, 89 AD3d 630 (1st Dept. 2011); Rzepecki v. Rzepecki, 6 AD3d 1134 (4th Dept. 2004); Kalish v. Kalish, 289 AD2d 202 (2d Dept. 2001). Hence, the amount of fees claimed to be incurred to KHV is deducted from the total amount requested.
An award of counsel fees pursuant to DRL §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. In determining whether to award counsel fees, the court should review the financial circumstances of both parties, as well as, the other circumstances of the case as noted, which may include the relative merit of the parties' positions. A counsel fee award generally will be warranted where there is a significant disparity in the financial circumstances of the parties. The Court may also consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceeds or unnecessary litigation. Fredericks v. Fredericks, 85 AD3d 1107 (2d Dept. 2011). The Court may also consider the merit of the positions taken by the parties. Moccia v. Moccia, 82 AD3d 1064 (2d Dept. 2011); see also Baron v. Baron, 71 AD3d 807 (2d Dept. ) and Blay v. Blay, 51 AD3d 1189 (3d Dept. 2008).
An award of attorney's fees is designed to redress economic disparity between the spouses and may also include fees incurred in pursuit of an award for legal fees. O'Shea v. O'Shea, 93 NY2d 187, 197 (1999). Moreover, it is now settled that an attorney discharged without cause may proceed directly against the monied spouse. Frankel v. Frankel, 2 NY3d 601 (2004). However, that is not the present situation.
While it is conceivable that a counsel fee award to a nonmonied spouse could be reduced, based on frivolous or wasteful conduct, it is improper to require the nonmonied spouse to pay a portion of the fees of the monied spouse. Silverman v. Silverman, 304 AD2d 41 (1st Dept. 2003). See also Wells v. Serman, 92 AD3d 555 (1st Dept. 2012).
The Court finds that Aiello's rates are reasonable in comparison to the rates of the other attorneys, and since this Court presided at the trial, also finds that Aiello expended the substantial portion of the time and effort she claims.
An award of attorney's fees 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 (1st Dept. 2003); citing O'Shea v. O'Shea, 93 NY2d 187 (1999).
Here, the Court finds that defendant did not engage in unnecessary litigation simply because a settlement was not reached and the record of the proceedings is, as it should be, silent with respect to the settlement postures of the parties. Cf., Fredericks v. Fredericks, 85 AD3d 1107 (2d Dept. 2011). A finding that a party has engaged in obstructionist tactics requires more than a mere refusal to settle. Cf Johnson v. Chapin, [*4]12 NY3d 461, 467 (2009), modifying 49 AD3d 348 (1st Dept. 2008), and Baron v. Baron, 71 AD3d 807, 810 (2d Dept. 2010).
The Court declines plaintiff's invitation to speculate on defendant's motive for contesting custody, and the record of this action does not support a finding that defendant acted in bad faith by so doing. Milteer v. Milteer, 280 AD2d 530 (2d Dept. 2001); Leabo v. Leabo, 203 AD2d 254 (2d Dept. 1994). Bad faith should not be inferred simply because the Court ruled against defendant on certain of his contentions.
Plaintiff's argument that no award of fees is appropriate because defendant's family assisted in the payment of his fees fails to rebut the presumption in favor of the defendant as the lesser monied spouse. Khaira v. Khaira, 93 AD3d 194, 201 (1st Dept. 2012). Hence, whether defendant's family gave him money or loaned funds to him is not relevant to the inquiry.
Applying the foregoing tenets, the Court finds it appropriate to award defendant counsel fees incurred as a result of work performed by Aiello only and not to HVK, and in the same proportion that the incomes of the parties bear to the total of their joint incomes utilized by them in their child support stipulation, i.e., 80% plaintiff and 20% defendant.
Plaintiff is ordered and directed to pay to defendant on account of counsel fees owed or owing to Aiello in connection with this action in the sum of $84,572.40, of which $53,000.00 shall be paid to Aiello and the balance to defendant. Payment shall be made within 30 days after the date of this Decision and Order, failing which defendant and his counsel may enter judgments against her for such amounts as are payable to each, together with interest from the date of this Decision and Order at the rate of 9% per year and any allowable statutory costs and disbursements.
However, in view of the size of the above amounts, plaintiff may, if she elects, pay the foregoing sums to defendant and Aiello in 24 equal monthly installments to each of them, beginning on February 15, 2013. Shen v. Shen, 21 AD3d 1078 (2d Dept. 2010).
Upon notice by plaintiff of her intent to make monthly installment payments, such notice to be given prior to expiration of the 30-day period for full payment, and provided plaintiff complies with the foregoing payment schedule, enforcement of any judgments entered by defendant and/or Aiello shall be stayed. Such stay shall be vacated if any payment is received later then 5 days after payment is due. No notice by either defendant or Aiello is required for vacatur of the stay to be effective under this paragraph.
Defendant is not permitted to offset, deduct or take a credit against any amounts owed by him to plaintiff pursuant to the Stipulation Regarding Child Support et al dated October 24, 2012.
In view of the above determinations, plaintiff's cross motion for counsel fees and sanctions is denied.
Any request not specifically addressed is denied.
This shall constitute the Decision and Order of this Court. [*5]
E N T E R:
DATED: January 7, 2013
_____________________________
Hon. Daniel Palmieri
Supreme Court Justice
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