Opinion
09-12512
04-10-2014
Christine A. Clements, , Plaintiff, v. Kent B. Clements, Defendant
Lewis J. Heisman, Esq. Underberg & Kessler, LLP Rochester, New York Attorney for Plaintiff LaMarr Jackson, Esq. Harris, Chesworth, O'Brien, Johnstone & Welch, LLP Rochester, New York Attorney for Defendant
[*1] 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 This opinion is uncorrected and will not be published in the printed Official Reports. Lewis J. Heisman, Esq. Underberg & Kessler, LLP Rochester, New York Attorney for Plaintiff LaMarr Jackson, Esq. Harris, Chesworth, O'Brien, Johnstone & Welch, LLP Rochester, New York Attorney for Defendant Richard A. Dollinger, J. Courts often face difficult questions during a divorce litigation, even though the matter never comes to trial. In this instance, the tough question is whether a court, in exercising its broad discretion, can impose attorney fees against a party on the grounds that they declined a reasonable settlement offer? The question becomes more complicated when the declining litigant's spouse must spend substantial legal fees in trial preparation only to achieve a final settlement as opening statements are about to begin - a final settlement that is almost exactly the same as what was offered six months prior. This complex question requires threading through the interwoven presumption for an award of legal fees under the Domestic Relations Law and the indisputable right of litigants to choose their own rationale for settling their divorce and to be free from judicial overreaching, in the form of a threatened legal fee award, in the settlement process. In this matter, the plaintiff/wife requests an award of attorneys fees after an extended course of litigation that spanned more than four and a half years. The divorce action was commenced in September of 2009 and was settled by a stipulation between current counsel, with the litigants present, in February 2014. The wife incurred $5,000 in attorneys fees to her past attorney and $30,882.39 to her present one. Because the matter never [*2] came to trial, the court needs to assess the pre-trial conduct of the parties to determine what costs should be shifted from the moneyed spouse to the lesser moneyed spouse in accordance with Section 237 of the Domestic Relations Law. At the date of its final settlement, this matter was one of the oldest cases in the court's inventory. Although the summons with notice was filed in September 2009 (and served the same day on the husband) the matter appeared to be headed to the default calendar. However, the husband retained counsel in late June 2010, and in July 2010, this court conducted a pretrial conference. The court circulated an email summary of the conference and while there were some issues that needed further consideration - the wife's buy-out of the husband's interest in the marital residence and the status of visitation - the case seemed to have few complex issues that would stall resolution. In December 2010, the court again met with the parties. The court noted that final statements of net worth - which should have been submitted at the first conference - were not yet signed. The court set deadlines for completing that process and accelerating the resolution, noting: "We have to keep this long delayed case on the right track." In January 2011, the wife's attorney wrote the court: My client is willing to go forward with the settlement proposal advanced by the court, but asked that instead of paying $10,000 to the husband for the value of her degree that the husband retain her interest in the collectibles. That was the part of the settlement proposal rejected by the husband. I believe that we are in agreement on everything else. If we cannot agree on this issue, the marital portion of the collectibles will have to be sold and funds divided. My client urgently needs the quit claim deed for her refinancing. In essence, at this stage - three years before the final settlement - the wife had signaled her assent to most of the terms of the proposed resolution. In February 2011, the court [*3] emailed again to counsel, advising them: "Please, let's get this done. We need the numbers and payments to keep things moving." When the matter seemed to stall again, the court wrote an email to the attorneys of record, announcing that "the case is all-but done" on March 10, 2011 - almost three years before the final settlement. Eight months passed and little-to-nothing happened. In December 2011, the wife changed counsel. There is no evidence before this court that suggests this change in counsel further delayed an already-well-delayed action. In fact, the wife's new attorney remedied an obvious procedural defect in the case when he drafted, filed, and served a complaint in May 2012. Regardless, while attorneys were changed, both parties at all times were represented by experienced and highly competent counsel. In January 2012, the court received the substitution of counsel and emailed both counsel, commenting, ". . .my records indicate this case was all-but resolved and we were waiting for resolution back in March. What happened?" Husband's counsel, responded via email, "We should be able to put this case to rest easily." In early May 2012, court staff contacted counsel for an update, and wife's counsel responded, advising that additional discovery was required. The court staff requested an update within 30 days. In July 2012, wife's counsel advised the court that a number of issues were unresolved and requested a conference. Three months later, in October 2012, the parties appeared for a conference. At that time, the husband's arrears in child support were a substantial issue that required immediate attention. The court stated in a follow-up email, "Arrears a big issue: figure out what was paid when and go from there. Could be in excess of $20K owed by husband, offset by other debts owed to him by wife." The court recommended that the parties draft an agreement and move quickly to resolve the outstanding disputes. An agreement was drafted in the Fall of 2012, but it remained unsigned and the court scheduled another conference in February 2013. In a pre-conference letter to the court, the wife's attorney noted that the husband was continually late with child support payments, had not yet responded to a written settlement proposal circulated two months earlier, and that the husband had failed to pay his share of daycare expenses. In the conference in February 2013, the parties squabbled over financial disclosure, requiring this court to sign an order requiring both parties to produce their 2012 income tax returns and certain bank records. The court's follow-up email in February 2013 states, "I think we have substantial agreement." Throughout this period of time, the child support and child expense arrears owed to the wife were substantial, in excess of $20,000. During the February conference, the wife first asserted a claim for attorneys fees. In the email summary of that conference, the court noted: No attorneys fees at this point, but if we get to trial, then I expect motion practice to decide that question. . . . It [the matter] should be done. The next step is trial: expensive, perhaps prohibitively, for this couple. When the case failed to settle during the Spring of 2013, the court convened another [*4] conference on August 27, 2013. During this conference, the parties discussed the substantial arrears owed by the husband to his wife. The court recommended, after listening to both sides and comparing documents, that the husband should pay the wife the sum of $47,500. The wife, now almost four years into the divorce action, reiterated her demand for attorneys fees. In the summary of the August 27, 2013 conference, this court warned the parties by email: The wife, the less moneyed spouse, seeks $18,000 in legal fees. I cut that in half - as a compromise - and award $9,000, without prejudice - if we go to trial or go much further she could get more. The court also described the husband's payment of his entire debts to his wife — including support arrears - as follows: Total - all in - no dangling claims equals $56,500, to be paid by the husband within 30 days of the judgment. Wife gets a separate judgment for that amount when divorce is filed - she can enforce right away if she wishes. The email indicated that the "all-in" number of $56,500 included $47,500 in arrears and debits and offsets and $9,000 in an attorney fees award. In a special emphasis, the court took pains to spell out how further delay - to the doorstep of trial - could result in an award of further legal fees. On a final note, I see little upside to further delay. While I could buy a recalculation of the arrears based on then current incomes (I would need to see research on the question), which might reduce the husband's costs, further delay will jump the legal fees and make it less likely that I would require a compromise of that figure. As a matter of law, the wife may be entitled to all reasonable legal fees and given the long course of this matter, further proceedings could result in an award of 75-80% of the outstanding fees (rather than the 50% that I have suggested), a move which would erase any savings from the child support arrears recalculation. Furthermore, the trial of this matter will add significant costs in legal fees that might be transferred to the husband as well. In short, I see that details need to be worked out, but this settlement, as sketched by the court and subject to refining wrinkles as needed, deserves some consideration to resolve this matter. After the August conference, the husband in a series of email exchanges raised several minor issues regarding the child support calculation and daycare expenses. Less than a week after the conference and the court's email regarding the potential for additional legal fees if the matter did not settle, the wife's attorney responded to the husband's [*5] counsel. The wife's counsel agreed to the court's recommended settlement. Wife's counsel also provided some additional information and added, "By agreeing to the court's compromise figure set forth at the last conference, our client is making an effort to save further attorney fees and settle this 4-year-old matrimonial case." A month later (October 2013), husband's counsel again directed an email to the court and wife's counsel, making a claim related to the wife's employment and a buy-out she received, asserting a marital share. However, the facts - easily discernible at the time - demonstrated that the supposed "buy-out" occurred more than four years before the commencement of the action. In the same email, the husband's counsel raised a claim related to an account, formerly held in joint names, that had been "previously divided by the parties when they separated." The division had occurred more than four years earlier and was no longer a subject of discussion in the settlement. Husband's counsel asserted in the email that the husband had other "separate property" interests, but added "apparently he [the husband] is having difficulty obtaining proof [that the accounts were separate]." The "proof" was never submitted. The email also raised an issue regarding the husband's sports memorabilia collection, even though that issue had been resolved with a $5,000 credit to the husband at the October 2012 conference a year earlier. The next serious discussion of settlement occurred less than week before trial. The husband's attorney again advanced an email to opposing counsel, re-asserting claims for the wife's alleged "buy-out," asserting certain property as "separate property," and raising an issue regarding a 2010 tax refund. The wife's attorney responded by email the same day. He advised the husband's counsel that there was no "buy-out" and that all of her income from her prior employer had been deposited in the family accounts five years before the action was commenced. He reminded husband's counsel that he was late in paying support, and that the 2010 tax refund had been the subject of a settlement recommendation from the court more than a year earlier and had never been re-asserted in the conferences or discussion since. In short, the husband, in the wake of the conference and at the lintel of the courthouse door, introduced no new issues. He simply rehashed issues already resolved, in some cases, years beforehand. None of the issues raised by husband's counsel after the August 2013 conference had a foundation in either law or fact. Most had been previously negotiated and resolved during prior conferences - in vernacular of matrimonial negotiation, "already been taken off the table." When both parties and their counsel arrived for trial in February 2014, the court advised both parties that a settlement should be achieved, and gave the parties a short time to iron out the final details. After this final importuning by the court, the parties announced the settlement and recited a stipulation on the record. As part of the stipulation, the parties agreed to let the court decide the question of attorney fees, after written submissions from both sides. [*6] It is undisputed the final stipulated settlement is remarkably similar - if not identical - to the settlement proposal advanced in August 2013. The court has reviewed the "final offer" (made at the August 27, 2013 conference) and the final stipulation in detail. The terms recommended by the court and in almost all cases accepted by counsel and the parties - over the course of more than three years - differed only in minor ways from the final settlement. In August 2013, the court had recommended a $47,500 payment by the husband to his wife for arrears in support and other debts. The "all-in" number referenced in the court's email - $56,500 - was $9,000 higher because it included the recommended $9,000 in legal fees. The only change of any consequence occurred as a result of timing. The child support recommended by the court was modified downward from the court's August 2013 recommendation because the parties used their 2013 income data rather than 2012. The support arrears were reduced because of the use of updated financial information. The cost of the "add-ons," paid by the husband, was also altered because of the new financial data. The use of the new financial data does not deter the court from making a comparison between the "proposed settlement" and the "final resolution." The concepts in the recommended August 2013 settlement did not change, other than the use of updated financial information. Most of the remaining terms were the same: no maintenance, the husband provided the health insurance, the wife was the sole custodian, the use of tax exemptions was exactly as resolved earlier, and the pension calculations were identical. Several of the final terms had been recommended by the court years earlier. A $10,000 credit for the wife's master's degree had been recommended more than three years earlier at a conference in December 2010. A $5,000 credit for the husband's baseball card collection was recommended a year earlier at the October 2012 conference, as was a $4,500 credit for distribution of a disputed tax return. The only significant issue contained in the final settlement that was in dispute after the August 2013 conference was a $1,856 car insurance reimbursement in favor of the husband (the court has earlier recommended $750 as the compromise figure). When all was said and done, the "all-in" settlement figure for arrears and credits was $44,998.65, which included missed child support payments for the first two months of 2014. In short, the lump sum "all-in" payment to the wife (without attorneys fees) was approximately $2,500 less in February 2014 than the court had proposed in August 2013, and the remaining terms were essentially the same. However, what did change in the [*7] interval was the wife's attorneys fees which jumped from approximately $18,000 (requested in August 2013) to more than $31,000 accrued on the date of settlement, as a result of the extensive trial preparation by her counsel. In bottom line terms, the wife received $2,500 less in the final settlement because new 2013 financials were used for support calculations, but she paid approximately $12,000 more in legal fees. As already noted, the court invited both counsel to submit affidavits on the fee application. The wife's attorney noted that on the day before the August 2013 conference, his firm had billed the wife $18,901.54. In the interval between the date of the conference and the final settlement, the wife was billed $11,980.85. The wife's attorney, in his fee affidavit, notes: "The court's recommended terms of settlement at the conclusion of the August 2013 conference essentially are the terms of the stipulation reached by the parties on February 10, 2014 (the date of the trial)." In her affidavit, the husband's attorney admits that the only issue to be resolved was the amount of child support arrears (an acknowledgment where the only question was how much the husband exactly owed to his wife - both parties agreed that the amount of unpaid support easily exceeded $30,000). The husband's attorney highlights that this court, in its August 27, 2013 email, only suggested that "if we go to trial or go much further she could get more." But, while emphasizing the word "could," husband's counsel ignores the second part of the email in which the court projected that even if the child support arrears were calculated downward based on revised income data, the additional pretrial preparation fees awarded to the wife might eliminate any savings. Any reading of the court's email would lead to the conclusion that if the husband required the wife to pay trial preparation costs, he might be liable for those additional costs. The wife's attorney, in his reply affidavit, made the same point, reciting the added terms of the court's warning regarding attorneys fees. The wife's attorney further noted that the delays were occasioned, in part, by the husband's "long-standing refusal to pay child support and daycare reimbursements on—time and in-full." The court must consider whether the husband declining to settle the case in August 2013, only to concede a settlement six months later on essentially the same terms, justifies his payment of a portion of the wife's additional fees incurred in trial preparation. The attorney fees statute, Section 237 of the Domestic Relations Law, permits a court to award counsel fees to the less moneyed spouse in a divorce action, an amount which the spouse with more financial means must pay. It states: 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 are to be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. DRL § 237 (a). Such awards are "designed to create parity in divorce litigation and to prevent a monied spouse from wearing down a non-monied spouse on the basis of sheer financial strength." Rosenbaum v. Rosenbaum, 55 AD3d 713, 714 (2nd Dept. 2008). In determining whether to award counsel fees in this case, the court must evaluate (1) "the [*8] respective financial circumstances of the parties" and (2) "the value of the services rendered." Yarinsky v. Yarinksy, 25 AD3d 1042 (3rd Dept. 2006). In evaluating the respective financial circumstances of the parties, the husband has failed to rebut the presumption that the wife, the less monied spouse, is entitled to an award of attorneys fees. Therefore, the wife is entitled to fees and the only remaining question is, how much? To evaluate the value of services rendered, a court must consider several factors that include the "difficulty of the questions involved, the skill required to handle the case, specifics as to the time and labor required, the [attorney's] experience, ability and reputation, and the customary fee charged for similar services." Moccia v. Moccia, 82 AD3d 1064 (2nd Dept. 2011). In applying these factors to this application, the court notes that the issues present in this case were not complicated: both parties were W-2 wage earners, the marital assets were easily discernible, and there was no significant debt. The only major questions requiring detailed analysis stemmed from the husband's failure to pay support costs which, as noted earlier, ballooned to more than $30,000 by the date of final settlement. This was not a complex case, but it was characterized, in significant part, by delays in payment of support costs by the husband. The chief skill to counter the husband's delays in payment was perseverance, and the wife's attorney persevered. Initially, the court finds that the failure to settle the case in August 2013 resulted in substantial trial preparation costs for wife's counsel. In a review of the wife's attorney's records, the preparation for trial - just in the 10 days before the scheduled start date - consumed $9,052 in fees. The court finds that these fees accurately reflect the value of the services rendered. The hourly rates were not excessive, nor the amounts charged unreasonable. Moreover, no evidence has been presented indicating that the wife's attorney engaged in undue delay or over-litigation. Under the standard set in Moccia v. Moccia, the fees are reasonable and customary, reflect the level of skill of the practitioner, and the difficulty of the case. The husband does not dispute these aspects of the fee request. Because fees are justified, prior appellate decisions give this court broad discretion to decide the amount that should be apportioned to the husband. The difficult question is whether this court should apportion additional fees to him because the August 2013 settlement terms were almost identical to the final settlement stipulated to in February 2014. In that regard, this court finds it difficult to characterize the husband's refusal to accept the proffered settlement in August 2013 as "obstreperous conduct" that would justify additional fees. Yarinsky v. Yarinksy, 25 AD3d 1042 (3nd Dept. 2006). There is no evidence that the husband "abused" the process or engaged in blatant misrepresentations. Karen E. v. Yoram E., 39 Misc 3d 1235 (A) (Sup. Ct. Kings Cty. 2013) (abuse of an ex parte process or blatant misrepresentations and half-truths which unnecessarily prolong litigation results in award of more than 50 percent of the wife's unnecessary legal fees). There is some evidence that the husband delayed providing needed financial disclosure, a factor that can justify additional legal fees. Holbrook v. Holbrook, 226 AD2d 831 (3rd Dept. 1996) (party who was "less than forthcoming" regarding disclosure of assets and against whom a subpoena had to be issued was a factor in awarding fees). However, as the February 2013 order indicates, the court was required - more than three years after commencement - to order both parties to provide financial information. To [*9] disproportionately blame the husband for the lack of disclosure is unfair and inconsistent with the facts. The court acknowledged in the wake of the February 2013 conference that the wife was seeking fees and the court advised that unless a settlement swiftly followed ("if we get to trial"), fees would be appropriate. Thereafter, at the August 2013 conference after more than three years of litigation and with an award of substantial unpaid support arrears looming, the court concluded that fees were justified, recommending $9,000 to the wife. Husband's counsel, at the time, and throughout the remaining process, has never contested the award of $9,000, but challenges any fee award beyond that amount. The court is permitted to assess the relative merits of the husband's position, which was nearly the same in August 2013 - when the final conference was held - as it was in February 2014 - when the stipulation was entered. DeCabrera v. DeCabrera-Rosete, 70 NY2d 879, 881 (1987); Levy v. Levy, 4 AD3d 398 (2nd Dept. 2004) (court may consider the "relative merits" of the parties' claims); Morrissey v. Morrissey, 259 AD2d (2nd Dept. 1999) (court must consider "relative merits" of the parties positions in assessing fees and may consider "stonewalling" conduct that results in unnecessary litigation); see also G.C. v. K.C., 39 Misc 3d 1207 (A) (Sup. Ct. Westchester Cty. 2013) (stonewalling includes spending "an inordinate amount of time on this case due to the defendant's unreasonable and obstructionist conduct" and the court can consider, as evidence of stonewalling, a requesting of a hearing for no purpose other than delay); Prichep v. Prichep, 52 AD3d 61 (2nd Dept. 2008) (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). In some cases courts have focused on a litigant's contentiousness, although there is little precedential guidance to assist this court in differentiating between "contentiousness" and "good faith" hard bargaining. See Beth M. v. Joseph M., 12 Misc 3d 1188 (A) (a fee award denied because spouse's actions had contributed to the "contentiousness" of the action). In this case, there is no evidence of any in-court conduct or out-of-court conduct that would permit the court to draw the conclusion that the husband's conduct was unduly "contentious." In Medina v. Medina, the court wrestled with a panoply of conduct that undercut the flow of the litigation and drove up attorney fees. See Medina v Medina, 42 Misc 3d 1201 (A) (Sup. Ct. Westchester Cty. 2013) (in deciding fees a court may consider whether a party engaged in conduct or tactics which unnecessarily prolonged the litigation resulting in the other party incurring otherwise unnecessary legal fees). The court noted that the husband, against whom fees were assessed:unnecessarily escalated the wife's counsel fees in some of the usual, unsurprising, garden-variety ways: by, for example, failing to comply with court orders; being constantly in arrears on support; and failing to pay the wife significant unreimbursed medical and child care costs, failing to timely comply with discovery requests and deadlines, and also failed to provide financial disclosures. Id. The court concluded that the husband prolonged the litigation in "bad faith, causing the [*10] wife to incur significantly higher attorneys fees than reasonably should have been necessary." Id. The court added that the "recalcitrance and obstructionist tactics" of the husband "delayed the proceedings and increased the legal fees." Id. See also Fredericks v Fredericks, 85 AD3d 1107, 1111 (2nd Dept. 2011) (the plaintiff engaged in unnecessary litigation by contesting the defendant's motion to set aside the parties' initial stipulation of settlement, the terms of which were manifestly unfair to her). The "long and tortured" history of a litigation may be taken into account as well in deciding the amount of fees. Mancinelli v. Mancinelli, 228 AD2d 747 (3rd Dept. 1996). The Court of Appeals however, has cautioned: "A mere request for a hearing should not carry with it a label of intransigence. It is for the court to make such distinctions," O'Shea v. O'Shea, 93 NY2d 187, 194 (1999). In O'Shea the court concluded that the husband - the considerably more affluent spouse - was to blame for protracting the case. Here, the court's focus narrows to just whether the husband's rejection of the August 2013 settlement proposal was motivated by "bad faith" sufficient to justify additional fees. Initially, this court notes that the term "bad faith" is New York's equivalent of a legal chameleon - it appears throughout the case books, but seems to change its complexion as it travels. The Court of Appeals, seeking to give the phrase a definitive hue, could only do so by comparison, noting that "bad faith, the mirror image of good faith, connotes a dishonest purpose." Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, (1983). The court cited the Uniform Commercial Code's definition of "good faith" (defined as "honesty in fact"). NY UCC § 1-201 (19). In what appears to be a "who-done-it" like reference, the court added that bad faith implies an act with a "sinister intention." 58 NY2d at 384-85. Most of New York's prominent law involving bad faith in settlement negotiation stems from the insurance industry, which permits actions against insurance carriers if they exercise "bad faith" in refusing to settle liability claims within the policy limits. In those cases, "bad faith" in a refusal to settle claim only occurs if at the time a settlement is offered, "all serious doubts [about liability] were removed." Pavia v. State Farm Mutual Auto Ins. Co., 82 NY2d 445,454 (1993); Vecchione v. Amica Mutual Ins. Co., 274 AD2d 576 (2nd Dept. 2000); see also Broome St. Lot LLC v 432 Broome St. LLC, 2012 NY Slip Op 33489 (U) (Sup. Ct. NY County. 2012) (bad faith can be implied if the conduct is based solely upon a party's "desire to cause undue hardship" to an opponent). There is little judicial guidance on the standards for a "bad faith" failure to accept a settlement or bad faith in negotiation of a matrimonial settlement. This court can only find one New York case, well-aged, that suggests that a party in making an unreasonably low offer to settle a matrimonial case, and failing to produce any better offer, was chargeable with bad faith. Patino v. Patino, 283 AD 630 (1st Dept. 1954). While addressing the issue of failure to settle a matrimonial matter, given its unique facts, Patino is too brittle a precedent to justify fees in this case. More recent precedents offer some suggestions. In Blake v. Blake, 83 AD3d 1509 (4th Dept. 2011), the court suggested that a finding of "bad faith" sufficient to justify an award of attorneys fees was proper when a party "was otherwise unreasonable in her negotiations" with the spouse. At least one New York court has suggested, albeit indirectly, that the failure to resolve an otherwise "easily resolvable" matrimonial case may be factor in awarding fees. In D.L. v. K.G., 41 Misc 3d 1231 (A) [*11] (Sup. Ct. Kings Cty. 2013), the court, in assessing the factors justifying a fee award, noted that there was "nothing in the record that demonstrates why this case has not been settled." See also G.T. v. A.T., 980 NYS2d 255 (Sup. Ct. Suffolk Cty. 2014) (additional fees awarded against husband who could have settled the child support and real estate matters and made his position clear on the few issues remaining in one or two days rather than the 12-day trial). This court also notes that the 2010 amendment to Section 237(a) of the Domestic Relations Law has raised the stakes for awards of attorney fees. Prior to the amendment, the statute required the attorney fee award "to enable the petitioning party to properly proceed." In the 2010 amendment, that language was deleted, and "rebuttable presumption" was inserted, along with some instruction to judge's "exercising their discretion" when hearing a fee application: In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented . . . so as to enable adequate representation from the commencement of the proceeding. NY DRL §237; see Chapter 329, Laws of 2010. While the statute is directed largely to pendent lite requests for fees, as the Assembly sponsor indicated, the intent of the amendment is to: [B]etter address today's economic and social realities and will help insure that no party to a matrimonial case is strategically at a disadvantage for want of resources to pursue or defend the case. Weinstein, Sponsor's Memorandum in Support of 7569A, Chapter 329, Laws of 2010. In his approval memorandum, Governor Paterson noted that the new law would not change "the legal standard as to whether the financial circumstances of the parties warrant such an award." Paterson, Approval Memorandum, No. 28, Chapter 371, Laws of 2010. The governor cites the Court of Appeals determination in O'Shea v. O'Shea, 93 NY2d 187 (1999) as the continuing touchstone for whether "the financial circumstances of the parties warrant such an award." From this court's perspective, the 2010 amendment, creating a "rebuttable presumption" does not alter the financial justification for an award of fees, as the Governor's approval memorandum states. However, the insertion of this language does suggest that in order to justify an award of fees, pendent lite or a final award, the courts are [*12] no longer required to find "bad faith" or "obstructionist" conduct. The new amendment no longer requires such a finding and a court can award fees for conduct that simply delays resolution and increases fees to litigants if the consequence is a "strategic disadvantage" that undercuts the right to adequate representation. As applied in this case, these precepts require some pause. The litigation in this case clearly took much too long, but the cause of the extensive delays are hard to exactly pinpoint. The husband was represented by the same law firm throughout, although in the last eight months of the action, the attorney appearing on behalf of the husband left the law firm and a second experienced counsel from the same firm was substituted. It would be unfair to accord this change in the attorney appearing in the case any weight in deciding the amount of fees owed in this instance. The wife, perhaps in frustration at the delays, changed counsel two and half years after the action was commenced. Despite that apparent delay, the new counsel had advanced settlement proposals to the husband's counsel two months after the filing of the complaint. The relative delays in bringing the case to trial through August 2013 were incorporated into the court's recommendation for a $9,000 fee award at that time. As noted earlier, the husband, after the court's recommendation for $9,000 in fees, never challenged that amount or the court's justification in recommending it. The recent amendments to DRL Section 237(a) indicate that the Legislature was seeking a method to equalize the financial costs of divorce and prevent either party from using the litigation process as a shield to delay statutory-required payments or to exhaust the resources of the lesser moneyed spouse. In this case, by not paying his obligations during the term of the litigation, and participating in the prolongation, the husband occasioned a financial stress to the wife that is disproportionate to her own litigation conduct. The wife, after the final conference, was willing to settle and end the accrual of attorneys fees to both parties. The husband was not, and the wife's costs piled up in the interval between the final conference and the trial. The emails - before and after the August 2013 conference - gave the husband adequate notice that further delay - beyond the nearly four years that had already elapsed - might result in additional fees. The court made it clear that continued delay might cause the court to abandon its recommendation for a compromise on the issue of legal fees and award further fees. Given these clear warnings, this court can reasonably infer that the husband knew - or should have known - when he rejected the August 2013 settlement offer that he would be subjected to a claim for further fees at the time of trial. Based on the fact that the final settlement nearly mirrors the conference recommendation and that the feeble objections raised by the husband after the conference were on issues that had either been previously settled, or were factually unsustainable, this court can only conclude that the husband's rejection of the August 2013 settlement was a delay tactic. The husband was motivated solely to have the wife expend additional legal fees which had the practical effect of reducing her final pay out from this divorce. Because there appears to be no other motive, this court concludes that the rejection of the settlement was motivated by "bad faith" to prolong the litigation and boost the wife's [*13] attorney fees, which would then reduce her overall net recovery from her husband. Apart from delay, one other undisputed fact compels this court to consider additional fees. What is undisputed is that throughout the course of this litigation the husband accumulated substantial arrears in child support and child-related expenses (largely unpaid daycare costs). In this respect, the husband's delay tactics penalized the wife in two ways. She was shortchanged the needed - and statutorily mandated - child support and daycare expenses, and she had to finance expensive and prolonged litigation to recover those costs and end the divorce. In this court's view, it is difficult to characterize this litigation strategy by the husband as "obstructionist or obstreperous" in the sense that there is no evidence that he impeded depositions, made useless motions, or exhibited recalcitrant behavior. However, from the wife's perspective, the fact that the conduct does not rise to the level of obstructionism does not alleviate the practical consequences of delaying child support payments and driving up the cost of her legal fees. Nehorayoff v. Nehorayoff, 108 Misc 2d 311, 324 (Sup. Ct. Nassau County 1981) (if any party were required to substantially deplete the assets awarded to compensate her attorney, the equity of the distribution would be called into question). This court also acknowledges New York's strong policy preference that the cost of recovering child support and child-related expenses should be shifted to the party who failed to pay. In this case, the missed payments go back years and the wife has had to fund daycare - and other children's expenses - without the husband's legally-mandated contribution. As perhaps the final straw and the ultimate proof of the husband's motives, when he arrived at the February 10, 2014 trial date, he had failed to pay his child support for the two preceding months - both January and February. It is easy to conclude that by not paying substantial support expenses over a long period of time, the husband was not acting in the best interests of his children. The same argument can be made with respect to the award of attorneys fees. Without such an award, the children would be shortchanged on their right to support because as a practical matter, the legal fees paid by the wife to fight for the child support arrears will diminish funds available for the children. While this court concludes that bad faith motivated the husband's rejection of the August 2013 settlement proposal (which alone could justify additional fees), the fact that he has failed to pay in more than $37,000 in child support cinches the argument. Legal fees required under Section 237 should not be used as a tool to punish a party who deems a settlement to not be in their best interest, and reasonably rejects the settlement based on strong convictions about disputed issues. Other courts have cautioned against imposing legal fees to "punish" a spouse for "unnecessary delays." Eldridge v. Eldridge, 141 AD2d 371 (1st Dept. 1988) (to the extent a fee award was "meant to punish the husband rather than compensate the wife, it was not proper and should be vacated"), but see Lammers v. Lammers, 227 AD2d 255 (1st Dept. 1996) (award of attorneys' fees was proper because it primarily compensated plaintiff for delays in the trial caused by defendant, the penalizing component, if any, being secondary). The mere fact that a party declines a reasonable settlement proposal should not, in all cases, justify legal fees. The court of Appeals in O'Shea v. O'Shea, as noted earlier, cautioned against [*14] labeling a non-settling litigant as "intransigent." O'Shea v. O'Shea, 93 NY2d at 194; see also Gluck v. Gluck, 38 Misc 3d 1207 (A) (Sup. Ct. Nassau Cty. 2013) (to find obstructionist tactics "requires more than a mere refusal to settle."). Conversely, rejection of a reasonable settlement proposal, with an understanding or a well-informed expectation that the opposing party will spend thousands of dollars to ready the case for trial - and the opposing party actually expends such funds in a competent effort to be fully prepared for trial - seems to be exactly the type of unreasonable litigation tactic that the Court of Appeals said could be considered within a judge's discretion in O'Shea v. O'Shea. When the legislative change in 2010 made attorney's fees "presumptive" to the less moneyed spouse, the Legislature signaled, in this court's view, that the exercise of discretion should more heavily lean in favor of the lesser moneyed spouse, if the more moneyed spouse engaged in conduct that caused unnecessary fees to accrue. The "hold-your-breath-until-the-very-end-and-cause-your-spouse-to-incur-unnecessary-fees" approach by the husband in this case is the exact type of behavior that the 2010 amendment to Section 237 - and the innumerable judicial determinations discussed above - was designed to discourage. Based on all these circumstances and based on these findings, the court will impose the fees that it warned might be imposed after the August 2013 conference. The court awards $22,500 in fees to the wife. The wife's request for an additional award of $5,000 incurred to her past attorney is denied. As the Second Department has noted, "The potentiality or actuality of a voluntary change of counsel is not among those factors properly considered in fixing the amount of the counsel fees." Provenzano v. Provenzano, 71 AD2d 618 (2nd Dept. 1979); see also Upbin v. Upbin, 213 AD2d 629 (2nd Dept. 1995). Therefore, the court denies the wife's request as to fees incurred to her past attorney. The $22,500 in legal fees will be paid within 15 days of the entry of an order in this case or, if not, the wife is granted judgment in that amount. SUBMIT ORDER. Dated:April 10, 2014 Richard A. Dollinger, A.J.S.C.