Goldman v Abramova-Goldman

[*1] Goldman v Abramova-Goldman 2021 NY Slip Op 21303 Decided on November 4, 2021 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on November 4, 2021
Supreme Court, Kings County

Gary Goldman, Plaintiff,

against

Elena Abramova-Goldman, Defendant.



Index No. 55468/2019



Donald Steven Campbell, Esq.

Law Office of Richard A. Danzig

Attorney for the Plaintiff

1 N Broadway Floor 12

White Plains, NY 10601

Yonatan S. Levoritz, Esq.

Levoritz Law Group

Attorney for the Defendant

140 Broadway Floor 46

New York, NY 10005

Deborah Marie Garibaldi, Esq.

Attorney for the Child

7519 Myrtle Ave

Glendale, NY 11385
Jeffrey S. Sunshine, J.

The following papers read herein:

NYSCEF DOCKET NO.,

Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1 [NYSCEF 253]

Opposing Affidavits (Affirmations) 2 [NYSCEF 255]

Reply Affidavits (Affirmations)

Affidavit (Affirmation)

Other Papers

Introduction

The Attorney for the Child, Deborah Garibaldi Esq. moved by order to show cause [NYSCEF #253], in motion (mot.) sequence (seq.) 8, for an order: "(1) Increasing the hourly rate of DEBORAH M. GARIBALDI, ESQ., court appointed attorney for the child, to $400.000 effective September 1, 2021; (2) Ordering the parties to each pay DEBORAH M. GARIBALDI, ESQ. an additional retainer of $10,000.00; and (3) Such other and further relief as to this Court may seem just and proper." Plaintiff-father filed opposition [NYSCEF #255]. Defendant-mother did not file any affidavit in opposition or support of the application.

The issues of custody and parenting time are scheduled for trial on November 8, 2021 at 2:15 P.M., November 9, 2021 at 2:15 P.M., November 10, 2021 at 2:15 P.M., November 15, 2021 at 2:15 P.M., November 16, 2021 at 2:15 P.M., November 17, 2021 at 2:15 P.M., November 18, 2021 at 2:15 P.M., November 22, 2021 at 10:00 A.M., and November 30, 2021 at 10:00 A.M.

Background Facts

The parties were married on August 21, 2011, in a religious ceremony and one (1) child (currently seven (7) years old) was born to the marriage. On September 24, 2015, plaintiff commenced the instant divorce action in Queens County Supreme Court by filing a summons and complaint under Queens County Index No. 11641/2015.

Procedural History

On March 4, 2019, after holding a hearing on the matter, Queens County Supreme Court Justice Jodi Orlow issued a decision and order which granted plaintiff's motion for an order awarding him temporary exclusive use and occupancy of the parties' marital home located in Queens County. This order was subsequently affirmed by the Appellate Division, Second Department (Goldman v Abramova-Goldman, 185 AD3d 1012 [2020]).

On April 17, 2017, June 22, 2018, June 25, 2018, and February 21, 2019, a hearing on the issue of custody was held before Justice Orlow; however, before the custody hearing was completed, Justice Orlow recused herself from the case. On October 17, 2019, then Deputy Chief Administrative Judge for the Courts Inside the City of New York George J. Silver issued Administrative Order #318 transferring this case from Queens County Supreme Court to this Justice in his capacity as the Statewide Coordinating Judge for Matrimonial Cases. Thereafter, the case was assigned Kings County Index No. 55468/2019.

Attorney for the Child's Contention

The movant, the attorney for the child, argues: "To date, the Plaintiff Father is current with his share of my fees. The Defendant, Mother, owes your affiant, as of this date, a Judgment granted by this Court for $11,554.63 plus billable hours to date of $1,092.50 to which her share is $1,072.50 for a total of $12,627.13 in monies owed your affiant." She further notes: "It is highly unlikely that this case will be resolved and as such has been scheduled for nine (9) days of trial, (thus far) seven of the nine court dates are half day and two are full days. In addition to the days of actual trial, there will be hours of trial preparation. The file is voluminous and I have been involved since 2016." She notes that a retainer for the anticipated hours to be spent range from $16,000.000 to $20,000.00 dollars, which she refers to that amount as "a paltry sum in light of the parties combined legal fees to date that exceed or are close to $1,000,000.00."

Plaintiffs Partial Opposition

Plaintiff's Counsel in partial opposition states: "Should this Court direct that the parties pay trial retainers to Ms. Garibaldi, only Plaintiff would comply and pay the trial retainer. In all [*2]likelihood, based on the history of these protracted proceedings, Defendant will not pay any trial retainer to Ms. Garibaldi despite being directed to do so." He further states: "Therefore, a direction by the Court that the parties pay any amount of trial retainer to Ms. Garibaldi will inequitably prejudice Plaintiff inasmuch as he will be the only party monetarily impacted. The Defendant will not be monetarily impacted by such an Order because she will simply choose not to pay it just as she has chosen not to pay Ms. Garibaldi's past legal fees." Additionally, counsel argues: "Plaintiff respectfully objects to an increase in the hourly rate charged by Ms. Garibaldi. Ms. Garibaldi's hourly fees already exceed the statutory rates."

The Law

In Plovnick v Klinger, 10 AD3d 84 [2d Dept 2004] the Second Department ruled, even prior to the enactment the Judiciary Law 35(8), if an Attorney for a Child (previously called the Law Guardian) could be appointed on a private pay basis in Family Court the same authority exists for the Supreme Court to appoint an Attorney for the Child paid for by the parties privately.

Thereafter the legislature enacted Judiciary Law 35(8) which states:

Whenever supreme court shall exercise jurisdiction over a matter which the family court might have exercised jurisdiction had such action or proceeding been commenced in family court or referred thereto pursuant to law, and under circumstances whereby, if such proceedings were pending in family court, such court would be required by section two hundred sixty-two of the family court act to appoint counsel, supreme court shall also appoint counsel and such counsel shall be compensated in accordance with the provisions of this section.

Appointments of Attorney for the Children are governed by the Rules of the Chief Judge Part 07. Law Guardians §7.2 Function of the attorney for the child which provide in part: (b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation.

Plaintiff contends that the rate for the attorney herein is beyond the statutory rate and therefore should not be increased. The amount of reimbursement from the State of New York for attorneys appointed pursuant to statute in Family and Matrimonial cases is $75.00 per hour. The last time they received an increase in the statutory amount was in 2004. The statutory amount is woefully inadequate and has been inadequate for quite some time. If the court system is going to attract attorney's to be members of our panels or to remain on the panels with the depth and breadth of experience that this Attorney for the Child has, to pay the $75.00 an hour rate that counsel requests on a private pay basis would be detrimental to the role of Attorney for the Child. This rate is not sufficient or reasonable for government paid counsel.

The Court notes that the Attorney for the Child currently received a retainer of $2,000 and $200 per hour pursuant to the Order of Justice Pam Jackman Brown on February 17, 2016 appointing Ms. Garibaldi as the privately paid attorney for the Child. The Court further notes that Mr. Campbell's firm charged a retainer fee of $25,000 and $350.00 for Counsel, $250.00-$350.00 for Junior Partners and Associates, Law clerks/paralegals $125.00-$150.00 and Richard A Danzig, Esq. $500.00 per hour. Mr Levoritz's firm charged a retainer of $5,000.00.

The Court, in a prior decision dated June 14, 2021, noted as follows:

vast sums of money have been expended by these parties on this litigation. The Court [*3]upon hearing at oral argument that there were substantial sums due and owing to the Attorney for the Child directed counsel to provide an accounting of payments made by each party to date. According to the Attorney for the Child the Plaintiff paid $15,710.07 and currently owes the Attorney for the Child $230 while the Defendant owes the Attorney for the Child $11,784.63. According to the Plaintiffs affidavit he has paid his present attorney Richard A. Danzig's of The Law Offices of Richard A. Danzig $373,049.25, $316,694.98 of it paid by himself and $87,406.27 paid for by relatives and still owes $14,267.50. He has also paid expert fees of $11,500.00, $5,002.00 in appellate costs in connection to Defendant's appeals and he asserts $14,550.00 to the Attorney for the Child. According to Defendant's affidavit the Defendant has paid or owes approximately $714,445.77 over the course of this case she has had 8 different attorneys [6 trial counsel and 2 appellate counsel] and firms, court appointed forensic expert fees, court appointed Attorney for the Child fees and forensic peer review fees. The Defendant has used her own salary, bank loans and loans from friends and family to pay these fees and still owes a substantial sum. The Defendant has already paid Jeffrey Straus Esq., of Wachtel Missry LLP, approximately $47, 325.00 ($37,325.00 paid by the Defendant and $10,000.00 paid by a Banker Health Care Loan), Richard Hause Esq, of Samuelson Hause & Samuelson, LLP approximately $70,000 ($30,000 paid in loans from a relative, $30,000 paid by a Banker Health Care Loan and $10,000 paid by a loan from a separate relative) , Sadatu Salami-Oyakhilome, Esq., approximately $7,000 ($7,000 paid by the Defendant), Michael Freeman, Esq., approximately $15,000 ($15,000 paid in loans from a relative), Gemelli Gross & Dujmic, P.C., approximately $50,036.00 ($15,000 paid in loans from a relative, $5,000 paid in loans by a friend and $30,000 paid by a Banker Health Care Loan), Chris Chimery, Esq., approximately $10,000.00 ($10,000 paid in loans from a relative), The Law Office of Anthony Capetola approximately $15,000 ($15,000 paid in loans by a relative) and the Levoritz Law firm (her current counsel) approximately $229,000.00 ($209,000 by in loans by a relative and $20,000 paid directly from the Defendant). The Defendant continues to owe Jeffrey Straus Esq., of Wachtel Missry LLP, approximately $113,214.08, Richard Hause Esq, of Samuelson Hause & Samuelson, LLP approximately $7,000, Gemelli Gross & Dujmic, P.C., approximately $10,000 and the Levoritz Law firm approximately $85,561,80. The mother has actually paid approximately $453,361.00 in counsel fees to her attorneys alone, in expert fees she has paid $17,500.00, in Attorney for the Child fees $15,600.13 and still has $11,139.63 she owes to the Attorney for the Child. The role of the Attorney for The Child is an important one to say the least. She is the independent voice of the child and the order appointing her is at an hourly rate far less than the standard hourly rate for attorneys. For the other attorneys to be retained at substantial retained amounts and the AFC not to be paid by the mother is problematic and will not be sanctioned."

The Court herein increases the hourly rate of assigned counsel to $300.00 per hour retroactive to the date of this application. The Honorable Pam Jackman Brown's appointment order dated February 17, 2016 ordered the parties to be equally (50/50) financially responsible for the payment of the fees of the attorney for the child subject to reallocation: this ratio shall continue subject to reallocation. A rate more aligned with costs in 2021 vs. 2016 and certainly far less than the hourly rates being paid to the counsel for the parties where there are sufficient resources to pay their privately retained counsel hundreds of thousands of dollars. The attorney [*4]for the child has a right to be paid in an amount more closely aligned with that of an attorney for a parent. This is especially true where there are sufficient means to pay their own attorneys.

The Court rejects plaintiff's contention that because defendant has not met her obligations to the attorney for the child in full that he should not be required to pay his share at this time: there are remedies available to the attorney for the child if she so desires to seek additional enforcement, including contempt.

The Court herein orders an additional retainer in the amount of $10,000.00 within ten (10) days, to be paid in accordance with the ratio (50/50) in the appointment order, subject to the reporting requirements in Park 36.1 of the Chief Judge. The Court notes that the first day of trial on the issues of custody and parenting time is scheduled to commence on Monday, November 8, 2021. This is a court order and this Court expects full compliance.

Private pay attorneys for the children while considered fiduciaries and subject to the limits imposed by part 36.1 of the rules of the Chief Judge are different from other types of court appointed fiduciary appointees. Many fiduciaries are paid from the proceeds of the case they are involved in and the proceeds cannot be distributed from the recovery without court approval. In other words, the guardian ad litem, court evaluator or receiver's fees are often secured by assets collected and disbursed upon an accounting approved by the Court. Private pay attorneys for the children, who must report all appointments and whose fees must be approved, are left to collect those fees at the conclusion of the case and at times seek judgments for monies due and owing.

Under these unique circumstances where parties are willing to pay hundreds of thousands of dollars for lawyers and experts to protect their interests but are reluctant to pay the attorney for the child, to protect the child's interest, an additional retainer is warranted. The Court notes that defendant has spent more than $450,000 in counsel fees on her behalf but has failed to comply with her share of the counsel fees for the appointed private-pay attorney for the child which has resulted in a judgment in the sum of $11,554.63.[FN1]

It is clear that both parties are intent on fully litigating this dispute, which is their right; however, the attorney for the child does not have to underwrite the costs of a trial.

This constitutes the decision and order of the court.

HON. JEFFREY S. SUNSHINE

J. S. C. Footnotes

Footnote 1:The attorney for the child indicates that as of August 26, 2021 she was owed an additional $1,072.50 by defendant in addition to this judgment.