Vereen v Vereen

[*1] Vereen v Vereen 2017 NY Slip Op 50876(U) Decided on June 27, 2017 Supreme Court, Kings County Sunshine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2017
Supreme Court, Kings County

Benjamin Vereen, Plaintiff,

against

Andrea Vereen, Defendant.



50330/16



Hennessey & Bienstock LLP

Attorney for Plaintiff

551 Madison Avenue, 11th Floor

New York, New York 10022

Mayerson, Abramowitz & Kahn, LLP

Attorney for Defendant

275 Madison Avenue, Suite 1300

New York, New York 10016
Jeffrey S. Sunshine, J.

The following papers numbered 1 to 15 read herein: Papers Numbered

Notice of Motion/Order to Show Cause/ Petition/Cross Motion

Affidavits (Affirmations) Annexed 1 - 7

Opposing Affidavits (Affirmations) 8 - 9

Reply Affidavits (Affirmations/Affidavits) 10 - 12

Other Papers

Additional Affirmations 13 - 14

Transcript (Dated December 22, 2016) 15

Motion sequence numbers 1, 2 and 3 are consolidated for disposition. Defendant Andrea Vereen moves for an order: (1) directing plaintiff Benjamin A. Vereen to pay Mayerson Abramowitz and Kahn, LLP, herein after referred to as (MAK), the current outstanding balance for legal services rendered to her in the amount of $25,468 through August 31, 2016; [*2](2) directing plaintiff to pay MAK prospective counsel fees in the amount of $15,000; and (3) reserving defendant's right to seek further counsel fees as necessary. Plaintiff moves for an order, pursuant to CPLR 3217 (b), discontinuing this action with prejudice on the ground that the parties were previously divorced by judgment dated August 24, 1974 and entered in the Office of the County Clerk in New York County Supreme Court on August 28, 1974 (the Judgment of Divorce). Defendant cross-moves for an order directing plaintiff to pay MAK the entirety of counsel fees, costs and disbursements (hereinafter collectively referred to as attorneys' fees) incurred as a result of its representation of defendant in this action.

Facts and Procedural Background

Plaintiff is an entertainer. Defendant is a minister. The parties were married on February 10, 1965 in Cecil County, Maryland. Plaintiff was 18 years old; defendant was 14 years old. The parties' only child, a son, was born in July 1965.

Mr. Vereen contends that the parties permanently separated in 1966. Ms. Vereen contends that they continued their relationship "off and on" until 1975. Similarly, the parties offer differing accounts of the amount of time plaintiff spent with their child, the nature and quality of his relationship with the child and the amount of support that he provided for defendant and the child. There is no dispute, however, that defendant had another child with another man while she and plaintiff were separated; that plaintiff remarried in 1976 after what defendant characterizes as their last reconciliation and had three daughters with his second wife; and that plaintiff maintained some contact and provided some support for defendant and/or the child over the years.

Mr. Vereen explains that in August 2015, Ms. Vereen contacted him and told him that when she applied for social security benefits, she was told that she was still married to him. In an effort to resolve the matter, plaintiff retained counsel on September 3, 2015 and endeavored to negotiate a settlement. As a "good faith gesture," Mr. Vereen advanced a retainer of $7,500.00 to MAK, which he alleges he borrowed from his manager. When the matter could not be resolved by agreement, plaintiff commenced the instant action on January 22, 2016. By answer dated June 9, 2016, defendant sought a judgment of divorce in her favor, along with pendente lite and permanent maintenance, a determination of separate and marital property, equitable distribution and counsel fees.

By order to show cause dated September 8, 2016, defendant made her first motion, seeking interim attorneys' fees. Mr. Vereen opposed that motion by affidavit dated October 11, 2016. Although he attached Westlaw docket information sheets indicating that he had commenced a divorce action against Ms. Vereen in 1972 (New York County Sup Ct, Index No. 30196/72) and that Ms. Vereen had commenced a divorce action against him in 1974 (New York County Sup Ct, Index No. 31898/74) (the 1974 Action), he did not allege that a Judgment of Divorce had previously been granted or seek discontinuance of this action. Plaintiff thereafter substituted new counsel on October 26, 2016.

After receiving Mr. Vereen's affidavit in opposition, MAK submitted an authorization to obtain the records for the two divorce actions. When obtained, the records revealed that the Judgment of Divorce had been granted to Ms. Vereen on August 21, 1974 in the 1974 Action. As is relevant herein, that Judgment noted that Mr. Vereen appeared in the action by his attorney, but had not answered. Further, the Judgment recites that Ms. Vereen appeared in court on June [*3]3, 1974 and gave satisfactory testimony supporting the allegations of her complaint. The Judgment accordingly granted Ms. Vereen a divorce and awarded her custody of the child; she was not awarded any child support, spousal support or property.

On October 28, 2016, a copy of the Judgment of Divorce and Findings of Fact and Conclusions of Law were provided to plaintiff. By order to show cause dated November 16, 2016, Mr. Vereen moved to discontinue this action. Ms. Vereen then cross moved for an order awarding MAK all of the attorneys' fees incurred in defending this action through December 9, 2016 in the amount of $62,795.96. At the direction of this court during oral argument on December 22, 2015, MAK submitted an affirmation stating that through January 10, 2017, Ms. Vereen incurred attorneys' fees in the amount of $75,115.40, of which $7,500.00 had been paid by Mr. Vereen. Both parties, through counsel, waived their right on the record to an evidentiary hearing regarding counsel fees and consented to the Court utilizing the information in the original motion for "the facts and circumstances as to the underlying ability to pay and the definition of the monied spouse" during oral argument on December 22, 2016.

Mr. Vereen's Contentions

In support of his motion to discontinue this action and in opposition to defendant's demand for attorneys' fees, Mr. Vereen argues that it cannot be seriously disputed that he and defendant separated nearly 50 years ago, after a brief marriage of two years and the birth of their son. He further alleges that both parties believed that they had been divorced in the 1970s. He does not, however, have any divorce documents; the attorney who represented him at that time is now deceased and the whereabouts of the divorce file is unknown. Plaintiff thus argues that since defendant obtained a Judgment of Divorce in 1974, the instant action should be dismissed pursuant to CPLR 3217 (b), with no costs or fees awarded to either party.

In so arguing, Mr. Vereen reasons that attorneys' fees may not be awarded after the abatement of a divorce action by the death of a party. He contends that the facts of this case, where the parties were already divorced before the action was commenced, are analogous to a case in which an action is abated by reason of death. Mr. Vereen asserts that this conclusion is reasonable, since it has been held that after a party to a divorce action dies, no relief may be granted because the court is without power to alter a marital relationship that does not exist.

Mr. Vereen goes on to argue that since this action is at an end, the court should not look to the standard that governs an award of interim counsel fees, but should instead use the standard that governs an award of fees after trial. In this regard, in making its determination, the court should consider the relative merit of the parties' positions and whether either party engaged in conduct or took a position that resulted in the delay of the proceeding or unnecessary litigation. After such consideration, the court should recognize that this action has no merit, since there is no marriage to be dissolved. Moreover, even if the parties had not been divorced in 1974, there has been no economic partnership between them since at least that time, so that plaintiff would not be entitled to an award of support or equitable distribution at this time, even if they were still married. (See Campbell v. Campbell, 2017 NY Slip Op 02956 [Sup Ct, Bronx County 2017]).

Pursuant to his statement of net worth, dated November 25, 2015, plaintiff listed income of $166,115.00 and lists significant liabilities.

Ms. Vereen's Contentions

In partial opposition to plaintiff's motion, Ms. Vereen argues that it was plaintiff who [*4]commenced this action, which he actively litigated. Defendant notes that in plaintiff's complaint, Mr. Vereen alleged that no judgment of divorce had been granted to either plaintiff or defendant. Her papers opposing the motion to discontinue also include a copy of an order to show cause dated May 6, 1980, submitted by Mr. Vereen in the 1974 Action, seeking to obtain joint custody of the child; neither party advises the court of the disposition of that motion.

Ms. Vereen contends that she should be awarded the attorneys' fees that she incurred in defending this action because Mr. Vereen is the monied spouse. In this regard, she argues that MAK has standing to make this motion pursuant to that portion of Domestic Relations Law § 237 (a) that provides that "[a]ny applications for fees and expenses may be maintained by the attorney for either spouse in his or her own name in the same proceeding." She further argues that since an application for attorneys' fees can be made after an attorney is discharged without cause, this court has the authority to award counsel fees under the circumstances of this case. Further, Ms. Vereen contends that it is well settled that the court can award attorneys' fees notwithstanding the dismissal of a plaintiff's request for a judgment of divorce. Finally, she argues that it cannot be disputed that the court has discretion to award attorneys' fees pursuant to Domestic Relations Law § 237. Significantly, Plaintiff, through counsel, concedes both in his reply affirmation dated December 20, 2016 and during oral argument on December 22, 2016, that defendant does have standing to seek counsel fees. According to defendant's statement of net worth, dated August 31, 2016, she is unemployed and receives $234.00 in month from Social Security and an additional $1,000.00 per month in income from her daughter.

Discontinuance

Since the parties were divorced by the Judgment entered in the 1974 Action on August 21, 1974, there is no marriage to be dissolved. CPLR 3217 (b) provides that "an action shall not be discontinued by a party asserting a claim except upon order of the court and upon terms and conditions, as the court deems proper."

Accordingly, under these facts, plaintiff's motion seeking an order discontinuing his action pursuant to CPLR 3217 (b) is granted. In so holding, the court notes that defendant does not oppose this demand for relief.

Attorneys' Fees

As a threshold issue, the court notes that although each party blames the other for litigating this action in spite of the fact that their marriage had already been dissolved, both parties participated in the 1972 and/or 1974 Actions. Similarly, both parties apparently appeared in the post-judgment proceeding in the 1974 Action in which Mr. Vereen sought to obtain joint custody of their son. Likewise, it cannot be denied that Mr. Vereen commenced this action after the parties had been divorced. Ms. Vereen does not, however, deny plaintiff's contention that he commenced this action to resolve a problem that she claimed existed when she told him that they were still married and it was this revelation that this 2016 divorce action was predicated upon. It is also noted that in seeking affirmative relief in her counterclaim, defendant herself states that no judgment of divorce had been granted. Further, it is beyond dispute that it was Ms. Vereen who obtained the Judgment of Divorce in the 1974 Action, having testified in open court to substantiate the allegations set out in her complaint. Thus, both parties must bear some responsibility for the situation in which they now find themselves.

The court further notes that pursuant to Domestic Relations Law § 237 (a), it has the [*5]discretion to award attorneys' fees in a matrimonial action. In addition, CPLR 3217 (b) permits the court to grant a motion for voluntary discontinuance "upon terms and conditions, as the court deems proper." This provision has been interpreted as giving the court discretion to condition discontinuance upon payment of defendant's legal fees, costs, and disbursements (Beigel v Cohen, 158 AD2d 339, 340 [1st Dept 1990]). Because this is a matrimonial action, however, the court will analyze defendant's request for attorneys' fees in accordance with the standards developed under the Domestic Relations Law.

In so doing, the court first notes that the law is clear that "[a]n award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse" (Gober v Gober, 282 AD2d 392, 393 [1st 2001]). "Such awards are '"designed to redress the economic disparity between the monied spouse and the non-monied spouse" and ensure that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet'" (Kaplan v Kaplan, 28 AD3d 523 [2d Dept 2006], quoting Frankel v Frankel, 2 NY3d 601, 607 [2004], quoting O'Shea v O'Shea, 93 NY2d 187, 190 [1999]). As argued by Mr. Vereen, since this action is at an end, this standard is inapplicable. The Court need not analogize or rely upon, as plaintiff avers, to those cases that deal with abatement by death.

Accordingly, the question of whether to award Ms. Vereen counsel fees and if so, in what amount, is a matter within the sound discretion of the trial court (see e.g. Matter of Catto v Howell, 144 AD3d 1146, 1147 [2d Dept 2016]). "In determining whether to award such a fee, the court should 'review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions'" (Gruppuso v Caridi, 66 AD3d 838, 839 [2d Dept 2009], quoting DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]; see also Dochter v Dochter, 118 AD3d 665, 666 [2d Dept 2014]; Matter of Feng Lucy Luo v Yang, 104 AD3d 852, 852 [2d Dept 2013]).

In applying this standard, the court finds that the position taken by Ms. Vereen in seeking to obtain support and equitable distribution is lacking in merit. As a threshold issue, it is noted that the Equitable Distribution Law did not come into effect until July 19, 1980 (Domestic Relations Law § 236 [B]; see De Jose v De Jose, 66 NY2d 804, 806 [1985]). Accordingly, at the time the parties separated and divorced, Ms. Vereen had no right to equitable distribution and that the Judgment of Divorce did not give her a property settlement.

Further, once the Judgment of Divorce was found to exist, it must be given res judicata effect (see Graham v Graham, 293 AD2d 345, 346 [1st Dept 2002], lv denied 98 NY2d 692 [2001]; Mormile v Mormile, 149 AD2d 573, 573-574 [2d Dept 1989]). There is no basis to find that the doctrine of res judicata should not apply in this case because the law has since been amended to provide for an award of equitable distribution. In this regard, it is also significant to note that even had the Judgment of Divorce post-dated the enactment of the equitable distribution law, the court is without authority to modify an award of equitable distribution (see Smulczeski v Smulczeski, 128 AD3d 671, 672 [2d Dept 2015]; Wasserman v Wasserman, 103 AD3d 793 [2d Dept 2013]).

The court further finds that even if the parties were still married when this action was commenced, Ms. Vereen cannot establish the existence of an economic partnership that would entitle her to an award of equitable distribution or support. Even assuming the truth of her [*6]assertion that the parties did not permanently separate until 1975, they had not been living together for more than 40 years at the time this action was commenced. Moreover, in 1975, both parties were still young and Mr. Vereen's career was just beginning. In now seeking equitable distribution, Ms. Vereen makes no mention of the economic circumstances of the parties when they separated, but instead relies upon the success that Mr. Vereen achieved as a performer and entertainer thereafter in seeking monetary relief. Similarly, Ms. Vereen does not identify any assets that the parties owned in 1975, but instead looks to the assets acquired by Mr. Vereen after the separation, as, for example, his pension rights with SAG.

In denying any award of equitable distribution to a wife under facts similar to those herein, the Appellate Division, Second Department, held that:

"The parties had lived separate and apart for 37 years at the time of the commencement of this action. They had no assets at the time of their separation, and in no way contributed to each other's acquisition of assets during the course of their 37-year separation. During those 37 years, the wife lived with another man, bore him a son, and acquired title to a house purchased by him. Under the circumstances of this case, the determination of the court that each party retain ownership of the assets under his or her dominion and control was equitable (see, Oliver v Oliver, 206 AD2d 967 [4th Dept 1994]; Gross v Gross, 160 AD2d 976 [2d Dept 1990])."

(Francis v Francis, 286 AD2d 749, 750 [2d Dept 2001]; see also Mark-Weiner v Mark, 1 AD3d 158, 158-159 [1st Dept 2003] [the court properly exercised its discretion in awarding each party 100% of what he or she acquired after their separation, since they no longer functioned as an economic partnership after that time]; C.U. v E.U., 26 Misc 3d 1235[A] [NY Sup Ct 2010] [applying DRL § 236 (B) (5) (d) (7) and (B) (5) (d) (14), the court held that no award of equitable distribution or maintenance was appropriate where the parties had been physically, although not legally, separated for approximately 30 years; although the husband was a very wealthy man who owned several companies and properties in Nigeria, the wife's 30-year delay in seeking money or property from him was insufficient to warrant an award of the requested relief; because the economic partnership of the parties ended three decades ago, it would be inequitable to make any award of money or property to plaintiff where the husband's wealth did not result from her direct or indirect contributions]). Accordingly, since Ms. Vereen had no basis in fact or law to expect an award of equitable distribution or support at this point in time, having lived separate and apart from Mr. Vereen for so long, an award of the attorneys' fees must take into account the efficacy of that theory.

Finally, the Court finds that since both parties came into court without having taken steps that would have lead to the discovery of the Judgment of Divorce sooner, before such significant attorneys' fees had been incurred by either party, an award of attorneys fees should be limited. The Court though must recognize that plaintiff did bring this action for divorce, but he did so at the defendant's request and that his earnings exceed the defendant's significantly. He too had an obligation to conduct a thorough search of the records to establish if there was a prior judgment, especially in light of the two (2) prior proceedings. It mystifies the Court as to how these two parties, absent proof to the contrary, could "forget" that they had been divorced previously and then proceed to engage in significant litigation.

The purpose of a counsel fee award in matrimonial proceedings pursuant to DRL § 237 is [*7]to ensure a just resolution of the issues by creating a more level playing field with respect to the parties' respective abilities to pay counsel, and "to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence" (Silverman v. Silverman, 304 AD2d 41, 48, 756 N.Y.S.2d 14 [1 Dept., 2003], quoting Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL C237:1, at 6, quoting O'Shea v. O'Shea, 93 NY2d 187, 689 N.Y.S.2d 8 [1999]; see also DiBlasi v. DiBlasi, 48 AD3d 403, 852 N.Y.S.2d 195 [2 Dept., 2008]). Defendant herein does not have the "power of the wallet." As the Court of Appeals noted in Frankel v. Frankel (309 AD2d 65, 69, 764 N.Y.S.2d 135, [2dDept.,2003]) rev'd, 2 NY3d 601, 814 N.E.2d 37 [NY 2004]), the statute "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, 689 N.Y.S.2d 8, 711 N.E.2d 193 [NY 1999]). One party to a matrimonial action should not have the advantage simply because he or she has greater financial resources; thus, the Legislature gave trial courts discretion "to make the more affluent spouse pay for the legal expenses of the needier one" (O'Shea v. O'Shea 93 NY2d 187 at 190). In the case at bar the award of counsel fees must be viewed in the context of a final award. There is a public policy that awards of counsel fees are predicated upon. Without the benefit of Defendant having competent counsel the discovery of the 1974 divorce would have never come to fruition and the litigation would have ensued. The public policy worked. The plaintiff voluntarily provided the initial retainer of $7,500.00. That being said, for this court not to award an additional fee would defeat the public policy rationale of the statute. The fact also remains plaintiff earned $166,115.00 in 2015 and defendant earns $1,234.00 per month from SSI and assistance from her daughter; there is a clear disparity in income (see Domestic Relations Law § 237 (a)).

As such, defendant's counsel is awarded $10,000.00 in counsel fees in addition to the previously provided $7,500.00. The payment in this award of counsel fees of $10,000.00 shall be made directly from the plaintiff to the defendant's counsel within forty-five (45) days of service of notice of entry of this decision and order. The financial resources of the plaintiff, given his age, present liabilities and income, does not permit this Court to award fees beyond this $10,000.00. If the plaintiff fails to make the payment in compliance with this decision and order the defendant's attorney may enter a judgment for the full amount due and owing, plus statutory interest from the date of the breach, with the Clerk of the Court upon fourteen (14) days written notice by certified and regular mail to plaintiff's counsel and without further application to this Court.

Conclusion

Plaintiff's motion seeking an order discontinuing this action is granted. Defendant's motions seeking counsel fees is granted to the extent indicated herein and defendant's application for an additional award of attorneys' fees beyond the initial $7,500.00 is granted to the extent of an additional $10,000.00.

This shall constitute the decision, order and judgment of this court.

Dated: June 27, 2017

Hon. Jeffrey S. Sunshine

J. S. C.