Kinney v Kinney

[*1] Kinney v Kinney 2018 NY Slip Op 50023(U) Decided on January 5, 2018 Supreme Court, Monroe County Dollinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 5, 2018
Supreme Court, Monroe County

Jerri L. Kinney, Plaintiff,

against

Kenneth M. Kinney, Defendant.



17/2904



Alexander Korotkin, Esq.

Attorney for Plaintiff

Rochester, New York

Jennifer Fazio, Esq.

Attorney for Defendant

Rochester, New York

Marla Pilaroscia, Esq.

Attorney for the Child(ren)

Rochester, New York
Richard A. Dollinger, J.

Every matrimonial litigant needs "a horse in the race" or, as one of my colleagues suggested, "skin the game", as it vests them in the result and engenders a risk-sharing analysis that motivates them be cautious and perhaps more amenable to a reasonable pretrial settlement.[FN1] But, how much "skin" a matrimonial litigant should have in the game, when the contestants have [*2]yet to commence trial, is, to mix metaphors, "a horse of a different color."[FN2]

In this matter, a litigant, awaiting trial, seeks an award of additional interim attorneys fees. The applicant husband is the lesser-moneyed spouse and hence, under the Domestic Relations Law, is the beneficiary of a rebuttal presumption that he is entitled to an award of attorneys' fees. NY DRL § 237(a); Hof v. Hof, 131 AD3d 579 (1st Dept 2015). Domestic Relations Law § 237 (a) authorizes this court to:

direct either spouse . . . to pay such sum or sums of money directly to the attorney of the other 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.

Id. While the husband is the lesser-moneyed spouse, there is a triable issue concerning the extent of his lesser-moneyed status. The wife, who earned in excess of $69,000 in 2016, argues that the husband understated his income for the same year. The husband earned $27,219 as a W-2 wage earner for a landscape company in 2016 and also received $5,506 in unemployment compensation. The resulting income in excess of $32,000 is less than half the wife's income, but the wife, in a prior affidavit to the court, alleges that the husband works under the table and earns additional income. In her prior affidavit, she claims that his income is "closer to $40,000" annually. In view of these allegations, the issue of the husband's actual earnings and income will be a trial issue in the near future.

However, even if the allegations are proven, the wife concedes that the husband's income will not exceed $40,000, which still makes her the more-moneyed spouse under the DRL. As a further factor justifying an award of interim fees, the husband notes that he borrowed the original retainer for his counsel fees. He also had to make a prior motion for production of the wife's statement of net worth and payment of fees at the commencement of the action because the wife declined to forward the statement and advance fees. The court ordered the production of the net worth statement and the payment of the interim fees of $2500. Finally, the husband argues that his counsel forwarded the wife a detailed settlement proposal months ago and more than a month went by and the wife failed to respond. The husband claims that the wife's conduct evinces a "lack of cooperation" that further justifies fees. See Ahmad v. Naviwala, 14 AD3d 819 (3rd Dept 2005); Holbrook v. Holbrook, 226 AD2d 831 (3rd Dept 1996) (fees awarded when lack of cooperation during discovery forced the ex-wife to incur additional counsel fees to obtain the information).

In response, the wife argues that the husband misled the court in his statement of net worth, under-reporting his actual earnings, and failed to produce his counsel's billings to the court or demonstrate that he did not have the ability to pay fees for a trial. The wife's counsel also notes that she had previously paid $2500 in fees to the husband. Given these facts, the wife argues that this court cannot award fees without a full hearing on the husband's income and other aspects of the fee request.

The New York courts, guided by the legislative presumption in favor of fees to a lesser-moneyed spouse, have strongly supported interim fee awards for matrimonial litigants, even after a case is well out of the starting gate. See Vereen v Vereen, 2017 NY Misc. LEXIS 2519 (Sup. Ct. Kings Cty. 2017) (awarding additional interim fees to a lesser monied spouse). An award of interim counsel fees ensures that the non-monied 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 Dept 2001). These awards are '"designed to redress the economic disparity between the monied spouse and the non-monied spouse." Kaplan v Kaplan, 28 AD3d 523 (2nd Dept 2006); O'Shea v O'Shea, 93 NY2d 187, 190 (1999) (interim fees ensure that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet). Other courts have awarded a second dose of interim fees, even after a more-moneyed spouse ponied up fees at the commencement of the action. Hof v. Hof, 131 AD3d 579 (1st Dept 2015) (awarding wife $20,000 in additional attorney fees). At least one court has suggested that delaying an award of fees to the time of trial handicaps the lesser-moneyed spouse and may prevent them from even reaching the quarter pole,[FN3] much less crossing the finish line. The court in Gaetano D. v. Antoinette D., 37 Misc 3d 990 (Sup. Ct. Westchester Cty. 2012) awarded additional interim fees when the trial was just around the bend. The court emphasized that the award of interim fees was designed to "create parity in the divorce litigation." The Second Department gave all courts a lead pony for resolving this issue in Prichep v Prichep, 52 AD3d 61, 65 (2nd Dept 2008) in which the court resoundingly advised trial courts "not to defer the issue of counsel fees (in divorce cases) to the trial court." See A.S. v K.S., 2016 NY Misc. LEXIS 4666 (Sup. Ct. Kings Cty. 2016). Furthermore, the argument advanced by the wife — that the husband's income is uncertain and awaits a trial determination - is the exact type of "detailed inquiry" that the Second Department advised lower courts to avoid when considering an award of interim fees:

When a party to a divorce action requests an interim award of counsel fees, as opposed to a final award, no such detailed inquiry is warranted. An award of interim counsel fees ensures that the non-monied spouse will be able to litigate the action, and do so on equal footing with the monied spouse.

The logic underlying admonition in Prichep v. Prichep is unassailable in view of the presumption under the DRL. If a court has to hold a hearing on the request for interim fees, the cost to the non-moneyed spouse will increase and the disparity in incomes could be more pronounced. Accordingly, courts should not defer requests for interim counsel fees to the trial court, and should normally exercise their discretion to grant such a request made by the non-monied spouse, in the absence of good cause - for example, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the [*3]case - articulated by the court in a written decision.

Id. at 65. Carlin v Carlin, 120 AD3d 734 (2nd Dept 2014). To hold the hearing on the entitlement to fees before trial, as the wife requests, would be a classic case of putting the cart before the horse.

In this instance, the court declines to make further inquiry into the husband's finances and notes that the wife delayed the resolution by causing unnecessary motion practice in the early discovery stage of this matter. The requested interim fees are reasonable: the husband's counsel rates are comparable with other community rates for matrimonial litigation, his counsel is an accomplished matrimonial attorney and the claimed fees are not disproportionate to the work to prepare for and fully participate at trial.

This case is past the final turn: the court must create a reasonable parity for the stretch run, while the parties and their counsel jockey for position on the merits. An award of $3000 in additional fees, paid by the wife to the husband's counsel no later than January 15, 2018, will even the odds. If this award saddles the wife with excessive costs, the court reserves its right to re-allocate fees after trial when the court can determine who has prevailed on which issues and examine the tote board of equitable distribution to determine a final allocation of these otherwise necessary costs. This award still leaves the husband with "a horse in the race" - his exposure to additional fees during trial and the potential for reallocation of fees against his interest after trial - that should nose him - and his soon-to-be ex-wife (who faces the same choices) - closer to the finish line.

The husband's motion for an award of fees is granted as set forth above.

SUBMIT ORDER ON NOTICE. 22 NYCRR §202.48.

DATED: January 5, 2018

Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1: See Sykes v. Sykes, 41 Misc 3d 1061, 1068-69, n. 2 (Sup. Ct. New York Cty. 2013)(noting that the phrase, widely used in financial circles with regard to an individual's stake in an investment, is often attributed to famed investor Warren Buffett); P.S. v M.S., 2016 NY Misc. LEXIS 4688, p. 13, n. 3 (Sup. Ct. Orange Cty. 2016)(the phrase "skin in the game," refers to the belief that the best way to insure that a party to a divorce will litigate reasonably and responsibly is to require the party to share in the cost of the litigation).

Footnote 2: In Act II, Scene 3 of Twelfth Night, Maria says, "My purpose is, indeed, a horse of that colour." It's believed the phrase evolved from there or that the idiom already existed and William Shakespeare was simply twisting it. The Origins of 12 Horse-Related Idioms, http://mentalfloss.com/article/56850/origins-12-horse-related-idioms (last visited 1/4/19).

Footnote 3: The "quarter pole" is a standard feature in horse racing, identified by a red and white striped post a quarter mile from the finish line. The metaphor is new to New York law but older case law from other states have used the phrase in horse racing cases. James v. Columbia County Agricultural, Horticultural & Mechanical Ass'n, 178 A 329 (Superior Ct. Pa. 1935); Lane v. Minnesota State Agricultural Soc., 69 NW 463 (Minn. 1896). Suffice to say, this litigant, preparing for trial with an imminent trial date, has passed the quarter pole and entered the home stretch in this litigation.