Opinion
200706-06.
Decided April 30, 2008.
The application for pendente lite legal fees can be made at any time during litigation — upon commencement, at pre-trial, or at post-trial stages. See, Estis v. Estis , 309 AD2d 829. This motion was prepared and filed after the movant had discharged her attorneys, without cause, according to her affidavit submitted in support of her motion. Notwithstanding such discharge, the outgoing attorneys have standing to make application here ( Frankel v. Frankel , 2 NY3d 601). They seek fees of $34,850.59.
The plaintiff here has also terminated the services of his attorneys (the third such law firm to be fired), and has also filed a motion seeking modification of the stipulation of settlement of custody, entered into several months ago.
The concerns expressed by the Court of Appeals in Frankel , supra, are mirrored here, where the spouse with ready and ample funds — more than $600,000 at the commencement of this litigation — would have "a wide choice of counsel, and the financial wherewithal to maintain the litigation, while the non-monied spouse would struggle to find a lawyer who might have to go unpaid." See, Frankel , supra.
Elimination of the disparity between the monied and the non-monied spouse was intended by Legislative enactment of Domestic Relations Law § 237(a), which provides, in pertinent part:
"In any action or proceeding . . . for a divorce . . . the court may 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."
Interpreting the statute [DRL § 237(a)] to preclude this application, as urged by the plaintiff here, would "confound the collection process and discourage attorneys from representing non-monied litigants." See Frankel , supra. And in this instance, the plaintiff was subsequently able to re-retain her counsel, making this application even more significant.
During the course of the litigation, much time was expended addressing the ramification of plaintiff's surreptitious installation of an electronic surveillance of the defendant and their daughter; a hearing on an order of protection sought by the plaintiff that had no basis in fact or law; countless conferences to address discovery obfuscation with respect to plaintiff's business interests in the manufacturing and distribution of golf clubs, along with delays occasioned by three changes of attorneys. Aside from the in-court activities, the detailed time sheets of defendant's counsel reflect the phone calls, letters, and a myriad of efforts on the part of the defendant to secure plaintiff's compliance with discovery orders of this court — all of which reflect spent efforts occasioned by obfuscation. The additional hours expended by defendant's counsel in this matter were unavoidable consequences of litigation conduct and discovery recalcitrance of the plaintiff. By defendant doing what indeed was needed, the depletion of her legal resources was almost certain to occur. From every perspective, without the Court's steadfast assurance of litigation parity that flows from the "level playing field" (see, O'Shea v. O'Shea , 93 NY2d 187), there is nothing to prevent the repetition of a pattern of litigation behavior that has been productive only of waste and delay.
An appropriate exercise of the Court's discretion in awarding counsel fees under Domestic Relations Law § 237(a) not only secures the "level playing field," but also serves to assure that "the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet." See, O'Shea , supra, at 190.
Accordingly, the defendant's motion is granted to the extend that the firm of Gassman, Baiamonte, Betts Tannenbaum is awarded a money judgment against the plaintiff, Robert Chorne, in the amount of $34,850.59.
Settle judgment on notice to plaintiff.