Opinion
Index No. 55821/2020
12-11-2023
C.A.W., Plaintiff, v. P.W., Defendant.
Ressler & Associates counsel for pltf Nancy D. Kellman Esq counsel for deft
Unpublished Opinion
Ressler & Associates counsel for pltf
Nancy D. Kellman Esq counsel for deft
HON. ROBERT S. ONDROVIC, J.S.C.
The following papers were considered in connection with the parties' competing motions for an award of counsel fees:
PAPERS NUMBERED
Order to Show Cause, Affidavit of Plaintiff, 1 - 19
Attorney Affirmation, Memorandum of Law, Exhibits 1 - 15
Order to Show Cause, Affidavit of Defendant, 20 - 29
Attorney Affirmation, Exhibits A - F, Memorandum of Law
Affidavit of Plaintiff in Opposition, Exhibits 30 - 35 16 - 20
Reply Affidavit of Defendant 36
The parties entered into two separate stipulations, which were so-ordered on December 12, 2023 and December 26, 2023, pursuant to which they resolved all ancillary issues related to this divorce action with the exception of each party's request for an award of counsel fees. The parties waived the right to a hearing on the issue, which would be determined on the basis of papers.
In support of her application, the plaintiff submitted, among other things, her own affidavit, an attorney's affirmation, and a memorandum of law. In her affidavit, the plaintiff requested a final counsel fee award of $200,000. Billing invoices from the plaintiff's counsel reflect that the plaintiff has paid $303,680.90 since the commencement of this action in June 2020 through September 30, 2023. The plaintiff noted that she also paid 60% of the fees charged by the Attorney for the Child (hereinafter the AFC), which amounted to $17,661, and 60% of the fees charged by the forensic evaluator, which amounted to $22,912. The plaintiff asserted that the defendant refused to agree to an evaluator that was more reasonably priced and the appointment of an AFC and evaluator were necessary because of the defendant's refusal to agree to a reasonable access schedule, notwithstanding his undisputed substance abuse and mental health issues.
The plaintiff contended that the defendant's dilatory and obstructionist tactics prolonged this litigation and caused her to incur unnecessary legal fees. She further argued that the defendant adopted unreasonable positions on the issues of maintenance, access, and equitable distribution. She emphasized that the defendant's insistence that he was entitled to a share of the survivorship benefit of her pension plan, despite expert proof that the benefit cannot be valued, cost her over $30,000 in legal fees. The plaintiff claimed that her attorney was required to do the lion's share of the work and constantly had to follow up with defendant's counsel to move the case forward. The plaintiff argued that there is not a great disparity between her income of $141,035 in 2021, and the defendant's income of $101,291 in 2021.
The plaintiff asserted that to account for her separate property credit of $126,000, the parties finally entered into an agreement pursuant to which she was awarded 60% of the parties' bank accounts, the net proceeds from the sale of the marital residence, the marital portion of her retirement accounts and the parties' brokerage and investment accounts were, and the defendant was awarded the remaining 40%. She noted that the defendant also retained a $39,000 inheritance and, after painstaking negotiations, is receiving his full Majauskas share of the joint and survivor annuity and 25% of the pre-retirement death benefit, with the remainder being left to the parties' child via a trust. The plaintiff noted that she paid 100% of the fees to set up the trust and has been forced to spend down her distributive share to fund this litigation.
In an affirmation, the plaintiff's attorney added that the plaintiff will incur at least another $5,000 in legal fees for the preparation of this motion and uncontested divorce papers.
In support of his application, the defendant submitted, among other things, his own affidavit, an attorney's affirmation, and a memorandum of law. The defendant averred in his affidavit that his income is consistently $72,670 per year, as reflected on his 2022 income tax return. Billing invoices from the defendant's counsel reflect that the defendant has paid the total amount of $139,000 in legal fees. The defendant stated that he has also paid $18,000 to Jeffrey Wittmann, PhD., an expert he retained to analyze the forensic evaluator's report, and $3,000 to Carolyn D'Agostino, Esq. to prepare a report and provide testimony concerning the value of the plaintiff's pensions and to dispute the plaintiff's claims that the joint and survivor annuity and pre-retirement death benefits are not marital property. The defendant added that he has paid a total of $20,000 for supervised visitation with the parties' child through Supervised Visitation Experts and the parties' custody agreement requires seven additional months of once a month supervised visitation through July 2023.
In a memorandum of law, the defendant argued that the plaintiff is clearly the monied spouse and has earned an annual salary double that of his for the last several years. He noted that the plaintiff earns 67% of the parties' combined total income, is a tenured public school teacher, lives in a $700,000 home purchased by her parents and unencumbered by a mortgage, and is going to inherit approximately $300,000 from the sale of her paternal grandmother's home. The defendant asserted that his employment as a billing analyst is not guaranteed and his income will remain substantially the same for the indefinite future.
The defendant also argued that the plaintiff caused the parties to incur unnecessary legal fees by filing a motion on March 14, 2022, seeking mandates with which he was already complying. He further argued that he incurred more than $20,000 in legal fees having to address the plaintiff's untenable position that pension survivorship benefits are not marital property subject to equitable distribution. The defendant concluded that the plaintiff should be ordered to pay $34,225, which is 100% of the total legal fees he incurred to defend against the March 14, 2022 motion, determine the pension survivorship benefits issue, and prepare the instant motion. He asserted that the plaintiff should also be directed to pay 35% of the remainder of his counsel fees, or $48,650, and 35% of his expert fees, or $14,350.
In an affidavit in opposition, the plaintiff asserted that the parties only agreed to preserve the issue of an award of counsel fees for final determination by the Court and the defendant's request for an award of expert fees is outside the scope of their stipulation. She also argued that the defendant is not entitled to an award for the cost of having to prepare his motion given that the parties agreed to submit the issue to the Court on papers. The plaintiff contended that the defendant is not entitled to an award of counsel fees for having to oppose the March 14, 2022 motion which sought an award of child support and add-on expenses. She emphasized that she was financially supporting the parties' child without any contribution from the defendant and the motion was filed after several failed attempts to resolve the issue.
The plaintiff asserted that she does not, in fact, have an ownership interest in the home in which she resides. She stated that the home was purchased by her parents as an investment property and she pays rent to them and utilities in excess of $3,000 per month. The plaintiff emphasized that she is on a fixed income and is paid at the highest level on the pay scale. She further noted that her grandmother's home was sold, she did not receive any proceeds from the sale, her grandmother is in a nursing home, and the vast majority of her grandmother's assets had to be drawn down to qualify for Medicaid. The plaintiff argued that there is no evidence to support the defendant's self-serving claim that she receives substantial support from her family or that she has access to any separate property.
In an affidavit in opposition, the defendant averred that his position on the issue regarding survivorship benefits was not unreasonable given that it was resolved in his favor. According to the defendant, much of the conflict between the parties related to his requests for increased access time with the child and the plaintiff incurred twice as much legal fees as him due to endless correspondence between her, her attorney, and the AFC. He argued that the plaintiff's request for an award of $200,000 in counsel fees is arbitrary, whereas his request is based on her pro rata share of his fees. The defendant further noted that there can be no dispute that the plaintiff earns double his salary, emphasizing that in 2021, his salary was $68,110, but his adjusted gross income was increased due to a life insurance policy he inherited. He insisted that he complied with all of his financial obligations under the interim order of support dated October 22, 2020.
The defendant denied that his conduct was the cause of any delay in this proceeding and that his attorney failed to provide timely responses to the plaintiff's attorney. He asserted that he has remained sober since the commencement of this action and compliant with treatment. The defendant noted that the invoices submitted by the plaintiff amount to only $284,779.
Analysis
"In determining whether to award final counsel fees at the end of trial, a more detailed inquiry is warranted and the court must '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'" (Duval v Duval, 144 A.D.3d 739, 743 [2d Dept. 2016], quoting DeCabrera v Cabrera-Rosete, 70 N.Y.2d 879, 881 [1987]). "The court may also consider 'whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation'" (Fredericks v Fredericks, 85 A.D.3d 1107, 1108 [2011], quoting Prichep v Prichep, 52 A.D.3d 61, 64 [2d Dept. 2008]). "At that point, the court is in the best position to determine whether counsel fees should be charged to the moneyed spouse, or charged to the less moneyed spouse as an offset against the equitable distribution award ultimately received, or divided between the parties" (Duval v Duval, 144 A.D.3d 739, 743 [2d Dept 2016]). As stated above, the parties waived a hearing on this issue, and agreed to submit their arguments regarding a final award of counsel fees on papers.
Under the circumstances of this case and upon a consideration of all relevant factors, including the significant disparity in the parties' incomes, each party's future earning potential and their access to financial resources, the extent to which the defendant prolonged the litigation with respect to the issue of parental access, the merits of the parties' respective positions, and the equitable distribution awarded under the settlement agreement, the Court grants the defendant's request for an award of counsel fees to the extent of awarding him the amount of only $20,850, to be paid by the plaintiff to the defendant's attorney within 30 days of the date of this decision and order, and denies the plaintiff's request for an award of counsel fees.
The Court rejects the plaintiff's contention that the disparity between the parties' incomes is de minimis. The record demonstrates that the defendant has never historically earned income in excess of $70,000, whereas the plaintiff has always earned approximately double his salary and there is no reason to expect that she will not continue to do so. In addition to the fact that the plaintiff is the monied spouse, the Court has also considered that the draftsmanship of numerous stipulations entered into during the course of this action was undertaken predominantly by the plaintiff's attorney, the defendant's position throughout this litigation on the issue of parental access, which was oftentimes against the recommendations of the AFC and the visitation supervisor, caused many instances of excessive litigation, and a portion of the fees incurred by the plaintiff was a result of constant email communications between the plaintiff, her counsel, and the AFC related to the defendant's requests for increased and/or unsupervised access with the parties' child.
Furthermore, the Court rejects the defendant's contention that the March 14, 2022 motion was unnecessary and finds that with the exception of the issues related to the preretirement death benefit and joint and survivor annuity, the issues involved were not so numerous and complex. Rather, the Court finds that the overall contentious nature of this divorce caused a significant accumulation of legal fees to be incurred by each party. Moreover, contrary to the defendant's contention, the issue regarding the preretirement death benefit and joint and survivor annuity was not resolved in his favor simply because the parties entered into a settlement pursuant to which it was agreed that he would receive a percentage of the ordinary preretirement death benefit. Although the plaintiff was steadfast in her belief that the defendant was not entitled to a share of the preretirement death benefit and join and survivor annuity under New York caselaw, the parties' dispute also centered on the defendant's unsubstantiated claim that the survivorship benefit was capable of being valued in the absence of actuarial factors.
Finally, the Court declines to award the defendant any portion of the expert fees he incurred insofar as the stipulation entered into between the parties only contemplated that the issue of counsel fees would form the basis of the parties' submissions.
Accordingly, it is, ORDERED that the plaintiff's request for an award of counsel fees is denied; and it is further, ORDERED that the defendant's request for an award of counsel fees is granted to the extent that the defendant is awarded the amount of $20,850, to be paid by the plaintiff to the defendant's attorney within 30 days of the date of this decision and order; and it is further, ORDERED that all other relief requested and not decided herein is denied.