B.S. v A.S.

[*1] B.S. v A.S. 2018 NY Slip Op 50136(U) Decided on February 1, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2018
Supreme Court, Kings County

B.S., Plaintiff,

against

A.S., Defendant.



xxxxxx



Barbara J. Schaffer, Esq [FN1].

Outgoing Attorney for Plaintiff

225 Broadway, Suite 1515

New York, NY 10007

Jeffrey A. Kaplan, Esq.

Attorney for Defendant

60 East 42nd Street, #4600

New York, NY 10165

Mindy L. Gress, Esq.

Attorney for the Children

44 Court Street, #905

Brooklyn, NY 11201
Jeffrey S. Sunshine, J.

As stated on the record during oral argument on December 13, 2017, the only remaining issue before this Court in the underlying motion (motion sequence #6) is defendant's counsel fee application. The plaintiff, who is himself an attorney and is represented by counsel, argues that because the defendant has taken what he asserts to be an unreasonable position as relates to custody and her refusal to resolve the issue, she should be denied any additional counsel fees pendente lite.

The parties have been married for twelve (12) years. Plaintiff is forty (40) years of age and is an attorney and defendant is thirty-eight (38) years of age and is currently unemployed. The parties have two (2) children, B.S. who is six (6) years of age, and R.S. who is four (4) years of age.

At oral argument on December 13, 2017, Plaintiff indicated he has paid his attorneys $100,000.00 thus far. Defendant has paid her attorneys $40,000.00 and is requesting $56,116.00. The payments to defendant movant's counsel were made in the following amounts and from the following sources: $10,000.00 from defendant as an initial retainer, $20,000.00 from the plaintiff pursuant to a May 31, 2017 consent stipulation and an additional $10,000.00 from the movant defendant which came from the $75,000.00 defendant received from plaintiff as an advance against equitable distribution pursuant to the same May 30, 2017 stipulation. Additionally the defendant has not contributed towards the fees for the attorney for the children nor the appraisal of plaintiff's business.

Plaintiff asserts that imputed income should be assessed to the defendant as she was previously employed as a middle school counselor during the marriage although defendant contends she has been a 'stay at home parent' since 2013 after the birth of their second child. It should be noted that plaintiff has also paid $5,500.00 in fees towards his own designated vocational expert. Defendant asserts that she planned on going back to work once the children are older.

Domestic Relations Law §237(a), as amended, provides with specificity:

"There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding."

The plaintiff's assertions that the defendant should not be granted counsel fees because of the position she takes in litigation certainly does not overcome the rebuttable presumption articulated in DRL §237(a). This is especially significant in the context of a plaintiff who paid $107,000.00 to his own counsel and recently retained new substituted counsel. Here there is a clear disparity in income; defendant has not been employed since 2013 and plaintiff, a partner in a law firm he founded, has earned approximately one million dollars ($1,000,000.00) in 2015 and more than two million dollars ($2,000,000.00) in 2016.

As such the Court grants the defendant additional counsel fees in the amount of $40,000.00 to be paid by plaintiff. This award of $40,000.00 to the defendant-wife for additional pendente lite counsel's fees is without prejudice to future applications for additional counsel fees, as necessary at the time of trial or sooner, upon the requisite showing (see DRL § 237; Prichep v. Prichep, 52 AD3d 61, 858 N.Y.S.2d 667 [2nd Dept.2008]; Kesten v. Kesten, 234 AD2d 427, 650 [*2]N.Y.S.2d 807 [2nd Dept.1996]; Dodson, 46 AD3d at 305; Jorgensen v Jorgensen, 86 AD2d 861, 861 [2 Dept.,1982]).

The plaintiff may of course at trial raise the issue that the determination of equitable distribution should take into account the amount of fees paid pendente lite and the fact that those fees were unwarranted. The Court then would be in a better position to consider the reasonableness of the defendant's position as the trial would have already occurred (see Ciampa v. Ciampa, 47 AD3d 745, 748, 850 N.Y.S.2d 190 [2d Dept. 2008]; Gober v. Gober, 282 AD2d at 393, 724 N.Y.S.2d 48 [2st Dept. 2001]; Plawner v. Plawner, 208 AD2d 408, 617 N.Y.S.2d 172 [1st Dept. 1994]; Maharam v. Maharam, 177 AD2d 262, 264—265, 575 N.Y.S.2d 846 [1st Dept. 1991]).

To award less than $40,000.00 would continue to place the plaintiff in a position to utilize the power of his income to determine the outcome of the case by depriving defendant access to counsel inasmuch as the custody trial is scheduled to commence shortly. The Court is reluctant to deny individuals access to the Court based upon the positions they take in litigation because of the chilling effect such an action could have on the right to counsel. Payment shall be made directly from the plaintiff to the defendant's counsel within twenty-one (21) days of service of notice of entry of this decision and order. 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, with the Clerk of the Court seven (7) business days from the date of default by written notice, by overnight mail next business day a.m. delivery, to the plaintiff and without further application to this Court.

This shall constitute the decision order of the Court.

Dated: February 1, 2018

Hon. Jeffrey S. Sunshine

J.S.C. Footnotes

Footnote 1: Since the submission of the within application the plaintiff has substituted counsel for new counsel Aimee Richter, Esq. of Lee Anav Young Chung White Kim Ruger & Richter LLP. The Court is not aware of the retainer amount if any paid to plaintiff's new counsel.