A.P. v C.M.

[*1] A.P. v C.M. 2016 NY Slip Op 51673(U) Decided on November 18, 2016 Family Court, Bronx County Bing, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 18, 2016
Family Court, Bronx County

A.P., Petitioner

against

C.M., Respondent



xxxxx



Lance H. Meyer, New Hyde Park, for Petitioner, Ms. A.P.

Atty K. Bruggemann, New York, for Respondent, Mr. C.M.
Tracey A. Bing, J.

The Petitioner filed a motion seeking payment of counsel fees under Domestic Relations Law Section 237 (b) for legal representation in a custody matter. She also seeks an order directing that the Respondent pay the counsel fees. The motion was filed by Lance H. Meyer, Esq., counsel for the Petitioner, on or around June 3, 2016. An affirmation in opposition to the Petitioner's motion was filed by Atty K. Bruggemann, Esq., counsel for the Respondent, on May 27, 2016. Reply papers were filed by the Petitioner's counsel on or around June 3, 2016.

On August 18, 2016, both counsels appeared before the Court to argue the motion. During this court appearance, Mr. Meyer stated that he was willing to reduce his invoice by $6,900.02. Ms. Bruggemann contested the invoice amount and did not consent to counsel fees. She argued that it was unclear whether services rendered under the invoice amount included services rendered during the child support proceedings. Both counsels waived a hearing and consented to the Court making a decision based on the motion, affirmation, affidavits and exhibits and the opposition and reply affidavits, affirmations and exhibits. A stipulation waiving the hearing was signed by counsel and submitted to the Court on October 20, 2016.

The parties have two children in common: one-year-old twins. The Petitioner's underlying custody matter was conferenced on October 6, 2015, February 4, 2016, April 11, 2016, and June 9, 2016.[FN1] The Petitioner also filed paternity and child support matters which [*2]were pending before a support magistrate simultaneously. On July 6, 2016, the parties were scheduled for trial. On that date, the parties and counsel signed a stipulation for a final order of custody and visitation. After allocution of the parties, counsel could not agree on counsel fees. This decision shall address the motion for counsel fees.

The Court reviewed and considered the following documents in its determination for Petitioner's motion for counsel fees:

a) Petitioner's affidavit dated April 15, 2016,

b) Petitioner's attorney Mr. Lance Meyer's affirmation in support of motion, dated April 15, 2016 and exhibits listed below,

c) The signed retainer agreement between the Petitioner and Mr. Meyer, dated April 14, 2015 (Exhibit A),

d) Petitioner's financial disclosure form dated April 11, 2016 (Exhibit B).

e) Mr. Meyer's invoice for services in the amount of $15,680 dated April 7, 2016,

f) Petitioner's affidavit in reply to Respondent counsel's answer dated June 4, 2016,

g) Mr. Meyer's affirmation in reply to Respondent counsel's opposition affirmation and Respondent's affidavit dated June 3, 2016,

h) Mr. Meyer's amended invoice in the amount of $16,440 for services rendered dated June 3, 2016 (Exhibit A),

i) Mr. Meyer's invoice in the amount of $24,200 dated August 17, 2016,

j) Respondent's affidavit in opposition dated May 24, 2016,

k) Respondent's attorney Ms. Atty K. Bruggemann's affirmation in opposition to the motion dated May 25, 2016 and exhibits listed below,

l) Exhibit A, Texas District Court Petition to Adjudicate Parentage, undated,

m) Exhibit B, Family Court Stipulation for visits dated February 4, 2016,

n) Exhibit C, Respondent's Employment Contract and Contract Information Form dated [*3]August 6, 2014 (term one year effective September 1, 2014, with second year option),

o) Exhibit D, Texas District Court Agreed Order Adjudicating Parentage, undated, certified, sealed and dated for November 24, 2015 by District Clerk of Harris County, and

p) Bronx Family Court petition for custody, filed March 13, 2015.

Legal Analysis and Discussion: Domestic Relations Law Section 237 (b) permits the Court to use its discretion to award counsel fees directly to the Petitioner's attorney to enable the party to carry on or defend the proceeding as justice requires. The Court shall have "regard for the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse." Family Court Act Section 651 (b) gives Family Court jurisdiction to "determine in accordance with DRL 240 (1) the same powers possessed by the Supreme Court in addition to its own powers . for determination of custody or visitation."

The Court is required to consider many factors, including the financial circumstances of the parties, the moving party's ability to pay counsel fees, the overall circumstances of the case, and the merit of the parties' positions. The Court may also look at the legal complexity of the case, counsel's reputation, experience, and competence and whether the party requesting counsel fees caused delays and the unnecessary litigation due to his/her actions. The Court should not consider who was successful in the litigation. (See O'Shea v Parker, 16 AD3d 50, [2d Dept 2005], Evgeny F. v Inessa B, 127 AD3d 617, [1st Dept 2015]; and Matter of Feng Lucy Luo v Yang, 104 AD3d 852, [2d Dept 2013].)

The Court reviewed counsel's invoices submitted which included counsel's hourly rate at $400, hours spent in rendering professional services and dates such services were rendered. The retainer agreement dated April 13, 2015 and April 14, 2015 was signed by Mr. Meyer and the Petitioner. Mr. Meyer and the Petitioner agreed that she would pay Mr. Meyer's $400/hour fee for legal representation in paternity, custody and support matters in Bronx Family Court. This Court is making a determination for counsel fees solely for representation in the custody matter.

The Petitioner submitted an affidavit and her counsel Mr. Meyer submitted an affirmation with the court detailing their financial arrangement for his representation in their retainer agreement, including Mr. Meyer's hourly rate and amounts paid and outstanding.

The Court reviewed Mr. Meyer's revised invoice dated August 17, 2016. His proposed deductions for appearances in the paternity and child support matter are very close to the Court's determination of fees outstanding. Mr. Meyer's revised invoice dated August 17, 2016 requested $24,200.00 for attorney fees. This invoice did not include $3,280 in deductions for 8.20 hours for legal services that Mr. Meyer provided in the paternity and child support matters.The Court notes that Mr. Meyer made that deduction in his June 3, 2016 invoice submitted with his reply affirmation. This Court reduces the invoice by $3,280. The Court made an additional deduction [*4]of $4,800 for Mr. Meyer's appearances for conferences scheduled with a beginning and end time (usually 30 minutes), appearances for the paternity and child support proceedings and requests for excessive amounts.[FN2] The Court reduces the final invoice by $8,080 for a total outstanding amount of $16,120. See Jones v Jones, 133 AD2d 217, [2d Dept 1987] and Dalessandro v O'Brien, 248 AD2d 468, [2d Dept 1998].

The Court notes that the Petitioner did not pay the initial retainer deposit of $10,000 as per her affidavit dated April 11, 2016 (See Motion). She provided a financial disclosure affidavit which lists child support as her sole income at $2,000 per month. She stated that she was unemployed as the primary caretaker of the then fourteen month old twin girls. It is reasonable to conclude that the Petitioner was a stay at home full time caretaker of the young children. She also stated that she did not file taxes. She did not provide bank account or additional asset information. Respondent argues that she does not list the $30,000 received for retroactive child support payments under the Texas Parentage [and Child Support] stipulation and order dated November 12, 2015.[FN3] (See Exhibit D and affidavit in opposition.) The Court is not clear why the Petitioner did not provide the $30,000 arrears or bank account information.

All discussion regarding details of facts underlying the Texas parentage order and counsel fees paid in that proceeding are irrelevant for this decision. This Court cannot reconsider underlying information in that matter as a Texas Judge signed the parties' stipulation of settlement and order. While the Petitioner did not list installment payments for retroactive child support, the Court notes that child support money cannot be used for counsel fees. This proceeding is not an appeal of that stipulation and order.

The Respondent did not provide a financial disclosure affidavit, income tax returns, information about his assets or bank statements. Counsel for the Respondent did not provide her retainer agreement, legal fees paid or a ledger showing legal services performed and the associated costs as requested by Petitioner's counsel. He provided an Employment Contract dated August 6, 2014, effective for one year, effective September 1, 2014, with a second year option. The Respondent argues that he only received $2,000 per week. The Court does not credit this statement. Pursuant to page two, paragraph 3 (b) of the contract entitled "Compensation", the employer agrees to pay the employee $2,000 per week, for up to four or five weeks, prior to the commencement of the regular season while the employer is in attendance at training. The contract also provides that the Respondent's current base compensation for 2014-2015 was $1,145,685 and $1,270,964 in 2015-2016 for the option year. (See Exhibit C, Respondent's affidavit in opposition.)

The Respondent further states that he "recently suffered a potentially career ending injury to [his] hand. I am trying to rehabilitate this injury now and [work] again, but there is no guarantee. The only income I have right now is that I am being paid out of the remainder of my [*5]contract from the 2014/2015 season. I receive $2,000 per week gross salary, and this is scheduled to end in November 2016. After November, I will have no income whatsoever unless I can [work] again." (See Respondent's May 24, 2016 affidavit in opposition.) The Respondent did not provide documentation of his injury, medical treatment or salary that he received during the 2014-2016 contract periods. The Court expects the Respondent to provide more detailed financial information. He disputes the Petitioner's argument that he earns significantly more income than the Petitioner and should pay her reasonable counsel fees. The Respondent is represented by counsel who likely is charging the same or higher rate as the Petitioner's counsel. The Court concludes that based on the Respondent's statement in his May 24, 2016 affidavit, he received some portion of the $1,145,685 base compensation for 2014-2015, in addition to the $2,000 per week for attending training prior to the start of the season.

The Respondent argues that the Petitioner's behavior caused the counsel fees to escalate. The alleged behavior he cites — the Petitioner filing a support petition in Bronx Family Court in March 12, 2015 which required multiple appearances before the Support Magistrate and counsel fees while the Respondent's paternity matter was pending in Texas and allegedly failing to provide medical information for the children pursuant to the February 4, 2016 stipulation in this matter — even if true did not escalate this litigation. The Court finds that the fees expended in the support litigation are not relevant in its determination for the custody matter. The children were born on February of 2015. In addition, the parties did not settle the Texas matter until November 12, 2015. This Court notes that both parties had counsel in the Texas and New York paternity and support matters. Finally, there was only one custody proceeding filed, the Petitioner's matter in New York. Thus, whatever issues surfaced in the paternity and support matters should not be considered in this Court's determination for counsel fees exclusively in the custody matter. The Texas Parentage order states that New York is the home state for the children. It is reasonable and foreseeable that a custody petition could be filed in New York, where the children live, after a parentage and support petition is filed in the state where the Respondent lived. The Court also notes that the Respondent filed a parentage and support petition in Texas more than five months prior to the birth of the children. The parties' parentage stipulation and order is detailed in sixteen pages. Because both parties had legal representation in the Texas and New York paternity and support matters, this Court does not conclude that the Petitioner and her New York counsel's legal decisions and her actions were designed to prolong litigation and accumulate excessive legal fees for custody litigation in New York. This Court believes that the proper inquiry is whether the Petitioner's actions in the custody matter caused delay and escalation of fees. The Court finds that the Petitioner's actions did not cause delay and escalation of fees.

The parties were represented by counsel when the issue arose regarding medical records. The Petitioner states in her affidavit in reply that she signed the appropriate medical release so that the Respondent could obtain medical records for the children. The Court does not address Respondent's arguments about the Respondent's financial eligibility as she allegedly received public assistance benefits, medical benefits and home health care for the children. It is not a factor that this Court should consider in awarding counsel fees. The Court does not agree with the Respondent that the Petitioner's behavior alone has caused fees to escalate.

Finally, when comparing the financial disparity of income between the parties and the Petitioner's ability to pay for counsel, this Court concludes that justice requires that the Respondent pay counsel fees for the Petitioner in the custody matter. The adjusted fees are reasonable based on 40.3 hours of legal work performed. The Respondent's failure to provide a [*6]financial disclosure affidavit is significant. The Court notes that the Respondent was also represented by an experienced New York counsel. Petitioner's counsel fees are not excessive or unreasonable.

ORDER:

The Court grants the Petitioner's motion for counsel fees in the amount of $16,120 payable to the Petitioner by the Respondent. The amount is payable within forty-five days from the date of notice of entry of this order.

Failure to comply with the order may result in a finding of civil contempt. A finding of civil contempt may result in fines or up to six months of incarceration.

ENTER:

DATED: BRONX, NEW YORK

NOVEMBER 18, 2016

________________________

HON. TRACEY A. BING

J.F.C. Footnotes

Footnote 1:The Court notes that while the petitions were filed on March 17, 2015, it was transferred to this jurist on July 1, 2015 to be heard on September 2, 2015. In addition to the two matters in this court, the parties also had pending paternity and support matters in Texas. That matter was filed by the Respondent on August 28, 2014 prior to the birth of the children. This Court could not proceed on the custody petitions until paternity was resolved. A final order of paternity and child support was entered in Texas on November 12, 2015. Adjournment requests were made by the Petitioner's counsel for court appearances on September 2, 2015 and December 15, 2015. The Respondent's counsel requested an adjournment for the January 14, 2016 court conference. The Court granted the adjournment requests for good cause reasons. The case was conferenced on the merits of the case on February 4, 2016.

Footnote 2:The Court reduced the counsel fees by twelve (12) hours at $400 per hour or $4,800 as follows: 2 hours on 7/1/15, 1.6 hours on 10/6/15, 2 hours on 12/15/15, 2 hours on 2/4/16, .5 hour on 4/11/16, 1.6 hours on 6/9/16 and 2.8 hours on 7/6/16.

Footnote 3:The order provides that the Respondent shall pay the Petitioner $2,000 per month in child support commencing on November 1, 2015. The Respondent shall also pay $30,000 in retroactive child support for medical and prenatal expenses due and owing through October 31, 2015 as follows: $7,500 on November 1, 2015, $7,5000 on February 1, 2016, $7,500 on May 1, 2016 and $7,500 for August 1, 2016. Both parties were represented by counsel in this matter filed by the Respondent on August 28, 2014. The petition was filed prior to the birth of the twins.