Opinion
2013-05-29
KAREN E., Plaintiff, v. YORAM E., Defendant.
Maria Coffinas, Esq., Coffinas & Lusthaus, Esqs., Brooklyn, for plaintiff. Gary B. Port, Esq., Port & Sava, Esqs., Garden City, for defendant.
Maria Coffinas, Esq., Coffinas & Lusthaus, Esqs., Brooklyn, for plaintiff. Gary B. Port, Esq., Port & Sava, Esqs., Garden City, for defendant.
JEFFREY S. SUNSHINE, J.
The wife commenced this divorce proceeding against the husband on September 28, 2010. This Court held a pendente lite custody hearing on May 16, 2011 based on allegations raised by the wife regarding the husband contacting call girls and viewing pornographic materials on electronic devices that the parties' three (3) young children had access to within the marital residence. After hearing testimony on May 16, 2011, this Court issued a pendente lite award of sole physical and legal custody to the wife and granting the husband's parenting time of six (6) hours every Sunday and a dinner visit on Wednesday evenings and ordered that the husband's parenting time take place in public places and that he not utilize any electronic device with Internet access during his parenting time .
On May 19, 2011, the Court appointed, on consent, Francine Shraga, Esq. as attorney for the children. Following this Court's May 16, 2011 pendente lite custody order, the husband made repeated applications, both orally during court appearances and by way of Order to Show Cause, seeking to re-litigate the pendente lite parenting schedule ordered by this Court, each of which the Court denied based on the fact that the husband made no showing that the facts and circumstances had changed in the weeks and months since the evidentiary hearing which would warrant an amendment to the Court's pendente lite custody award.
The Court limited the husband's parenting time, pendente lite, after a full pendente lite custody hearing where the husband testified that he regularly accessed pornographic materials online and had contacted call girls and arranged to have sexual encounters with more than ten (10) men and women he met in internet “chat rooms.” He admitted to using electronic devices that the children had access to in the marital residence. The restriction on the husband's access to internet-capable electronic devices during his parenting time was based on concerns that, based on the husband's admitted past behavior or accessing pornography on devices the children had access to, the children may be exposed to pornographic materials on internet-capable devices while in the husband's care. During the course of the litigation it was revealed that the children had accidentally viewed pornographic images on the husband's internet-enabled cellular telephone.
This Court issued an oral decision on the record after hearing arguments on June 7, 2011 denying the defendant's application for additional parenting time. The plaintiff settled an Order on notice of the Court's June 7, 2011 decision which the Court signed on August 12, 2011.
The parties proceeded to inquest on grounds on November 1, 2011. At that time, the parties consented to the Court appointing a mental health professional to conduct a forensic evaluation of the parties and the children on the issues of custody and parenting time .
At the November 1, 2011 court appearance, the husband made another oral application to the Court, through counsel, seeking to amend this Court's May 16, 2011 pendente lite custody and parenting time order. The Court adjourned the matter, as the attorney for the children was not present for the court appearance, but advised the parties that the Court would consider extending the husband's Sunday parenting time from six (6) to eight (8) hours if there was a consent stipulation executed between the parties and the attorney for the children. The Court did not receive a consent stipulation extending the husband's parenting time.
On November 22, 2012 this Court issued an order appointing Dr. N.G. Berill to conduct a forensic evaluation on the issues of custody and parental access.
On November 10, 2011, the defendant-husband moved by ex parte Order to Show Cause seeking an order of the Court enjoining the wife from leaving the parties' three (3) children in the care of any person unrelated to them by blood or by marriage. The husband and his prior attorney (herein after referred to as “then counsel”), appeared before this Court at 4:00 p.m. on November 10, 2011, the afternoon immediately prior to the beginning of the three-day Veteran's Day holiday weekend, which resulted in November 11, 2011 being a Court holiday. Neither the plaintiff-wife, her counsel nor the attorney for the children appeared to be heard on the husband's ex parte Order to Show Cause on November 10, 2011. The husband's then counsel represented that he provided notice, pursuant to 22 NYCRR 202.7, and a copy of the husband's ex parte Order to Show Cause to plaintiff's counsel by facsimile and e-mail. The husband's then counsel also represented that his office staff left a voice mail message for the attorney for the children but that her answering machine message indicated that she would be unavailable from November 7, 2011 to November 11, 2011. On the record, the Court directed the husband's then counsel to verify by telephone that the wife's attorney's office received the 202.7 notice and to confirm whether any attorney from the firm was going to appear on the ex parte application. The Court then took a brief recess. After the recess, the husband's then counsel represented on the record that he spoke with the wife's attorney's office during the recess and that the firm confirmed receipt of the husband's ex parte application but that no one from the wife's counsel's firm was available to appear.
The husband, in his Affidavit in Support of his ex parte Order to Show Cause, dated November 10, 2011, averred that he believed the wife planned to leave the next day for a Veterans Day weekend vacation to Arizona with a paramour and that she planned to leave the parties' three (3) children in the care of “complete strangers” who were tenants renting an apartment in the marital residence. The husband, who was present in Court, averred both in papers and on the record through counsel that the tenants were “strangers” to him and that he feared that the children would be in danger if they stayed with the tenants. In his Affidavit, the husband stated that he had “no knowledge regarding the character, background, central registry status” of the tenants and that it was “unfathomable” to him that the wife would leave the parties' children “with strangers while she goes on a pleasure junket with her boyfriend.” Furthermore, the husband averred that the wife “fails to see the trauma she is causing our children by leaving them with tenants' to satisfy her own prurient interests....” The husband posited in his Affidavit that the wife “gleefully limits my parenting rights on one hand, but on the other, sees no problem leaving the children unattended for four nights with strangers” and that it was “completely outrageous, that the plaintiff, who shivers and shakes in Court at the thought of the children spending overnights with [him], has no problem leaving them [the children] overnight with complete strangers.” He further posited that the wife's child care plans amounted to “horrible parenting.”
The Court made a detailed inquiry on the record as to whether the defendant “honestly and truly” believed that the children would be “in danger” if left with the tenants. The Court expressed concerns on the record regarding the timing of the husband's application and strongly cautioned the defendant that the application must not be used to attempt to interfere with the plaintiff's custody of the children. The husband, through his then counsel on the record and in the presence of his client, the defendant, again stated that he was concerned for the children's safety if they stayed with the tenants and that the tenants were “strangers”. Following the Court's inquiry on the record and based on the husband's unopposed papers and the representations and allegations made on the record, the Court signed the husband's ex parte Order to Show Cause with a return date of December 8, 2012 for oral argument and issued the stay enjoining the wife from leaving the children in the care of unrelated persons.
The wife filed an Affidavit in Opposition, dated December 1, 2011, to the husband's ex parte Order to Show Cause dated November 10, 2011. The wife averred that the tenants referred to by the husband were S.H. and D.R. and that they were “good family friends” of her and the children and had been tenants in the marital residence since September 2010. She further averred that she arranged for S.H. and D.R. to provide child care for the children after the maternal grandparents were no longer available to do so because of a medical situation involving the materanl grandfather. She posited that S.H. and D.R. had looked after the children previously and that the child care plans she arranged would not have interfered with the husband's court-ordered parenting time. The wife further contended that the husband had known of her travel plans since November 5, 2011 but that in the five (5) days between then and filing his ex parte application he never notified her or her attorney regarding any concerns he had regarding her child care plans for the children. The wife averred that a “large part” of the consideration that she and the husband had when jointly interviewing potential tenants for the marital residence and ultimately jointly selecting S.H. and D.R. as tenants was whether or not the parties felt comfortable with them living in the same building with the parties' children. The wife further posited that while the husband objected to her traveling and leaving the children with unrelated child care providers that the husband subsequently traveled to Puerto Rico with a girlfriend for Thanksgiving weekend instead of seeking any additional parenting time with the children during the holiday, without notifying her of the trip in advance and without providing his dates of travel or any contact information in case of an emergency regarding the children. As a result of the husband's ex parte Order to Show Cause filed on the afternoon before a holiday weekend and the day before she was schedule to leave, the wife averred that she had no alternative but to cancel her trip.
The husband filed an Affidavit in Reply, dated December 5, 2011, in which he averred that the children should not be permitted to stay with unrelated persons when his parenting time was limited by Court order to a six (6) hour visit each Sunday and one (1) dinner visit during the week with a condition that he not utilize cellular telephones or any electronic/internet capable devices during his parenting time.
No where in the husband's reply did he deny the wife's allegation that he had known about her trip since November 5, 2011 or deny that he had interviewed and met with the tenants on multiple occasions and participated jointly with the wife in a background criminal and reference background check of them before approving them to move into the apartment in the martial residence
The Court placed the restriction on the husband's access to internet-capable electronic devices during his parenting time pendente lite based on the wife's allegations that the husband was a sex addict and the husband's testimony that he viewed pornography on internet-capable devices within the marital residence that the children had access to.
All parties and counsel, including the attorney for the children, were present at the court appearance on December 8, 2011. At that time, the wife's attorney represented that the husband's attorney notified her by e-mail at 1:40 p.m. on November 10, 2011 that he was filing an ex parte Order to Show Cause that same afternoon and that by the time she received the notice she was unavailable to appear for the hearing. The attorney for the children represented that she was also not available to appear by the time she received the 202.7 notice from the husband's then attorney on November 10, 2011. The Court heard oral argument on the husband's application on December 8, 2011.
At oral argument the husband's then counsel indicated that his client believed that the wife was using his admitted history of sexual encounters outside of the marriage and his admitted pornography use in the marital home on electronic devices that the children had access to in order to limit his parenting time with the parties' children and that he objected to the wife planning a trip and making child care arrangements for the children without notifying him. The husband, through counsel, further posited that the wife showed “very poor judgment” when she planned to leave the children in the care of unrelated persons when she had previously objected to him having overnight parenting time with the children based on his past behavior.
The wife's attorney argued that the husband's decision to file an ex parte Order to Show Cause seeking to enjoin the wife from leaving the children in the care of an person unrelated by blood or marriage on the before Veterans Day weekend when the Court is closed was a vindictive litigation tactic designed to interfere with the wife's vacation plans. The wife's attorney argued that the husband's representation in his ex parte Order to Show Cause and to the Court on the record on November 10, 2011 that the tenants were “strangers” to him was a misrepresentation to the Court because the husband met and interviewed the tenants on at least two (2) occasions, participated in the background, credit and personal reference checks before they moved in and ultimately approved them to move into the marital home where the children lived. The wife further averred that D.R. and S.H. had lived in the apartment in the marital residence for several years and that the children frequently spent time with them playing games and that she and the children occasionally shared meals with them. Furthermore, the wife averred that the husband had known about her travel and child care plans since November 5, 2011—five (5) days before he brought his ex parte application—but that he did not reach out to her directly or through counsel to discuss any concerns he may have had about the child care arrangements before he brought the ex parte Order to Show Cause on the afternoon before she was scheduled to leave.
Following oral argument on December 8, 2011 and a full review of the papers before the Court on the husband's ex parte Order to Show Cause, the Court issued an oral decision from the bench. This Court found that the husband's ex parte application to enjoin the wife from leaving the children with any unrelated care givers on the afternoon before the wife was schedule to leave for a holiday weekend vacation was “a transparent effort and a subterfuge” to have the Court sign an ex parte stay under pretenses that were not accurate and, at best, only a partial presentation of the facts known to the husband. The Court found that the husband misrepresented to the Court when he stated that the tenants were “strangers” and that he had “no knowledge” about who they were. The Court also noted that the husband's ex parte application appeared to be based on misrepresentations and partial facts to retaliate against the wife rather than based on a legitimate and sincere concern that the children would be in danger if left in the care of unrelated persons while the wife was away.
The wife filed a Notice of Motion for Fees and Enforcement, dated February 6, 2012 marked returnable February 16, 2012, seeking an order of the Court: (1) awarding the plaintiff legal fees, costs and disbursements resulting from the defendant's ex parte application dated November 10, 2011; (2) directing the defendant to pay 100% of the attorney for the children's legal fees incurred in the defendant's ex parte Order to Show Cause dated November 10, 2011; (3) sanctioning the defendant, pursuant to 22 NYCRR 130–1.1, the sum of $5,000.00 for his frivolous ex parte Order to Show Cause dated November, 10, 2011; (4) compelling the defendant to forthwith effectuate the transfer of the automobile and financial accounts in accordance with the Financial Settlement Agreement dated November 1, 2011
; and (5) for such additional and different relief as to this Court seems equitable, just and fair. On February 16, 2012, the defendant requested an adjournment of the motion for more time to prepare opposition papers. The Court adjourned the matter to April 24, 2012. The defendant filed an Affidavit in Opposition, dated April 23, 2012 opposing the counsel fees and sanctions requested by the plaintiff in her February 6, 2012 motion. On April 24, 2012, the Court granted an Order providing that plaintiff's motion be referred to the trial court which was scheduled to begin on July 9, 2012. On July 9, 2012, the parties settled the custody and parenting access issues by written stipulation and requested that the plaintiff's motion be adjourned to October 10, 2012. On October 10, 2012, the defendant requested an adjournment of the hearing on plaintiff's motion in order to seek new counsel because his prior attorney had been suspended from the practice of law on unrelated issues by decision dated July 17, 2012 by the Appellate Division, First Department. On December 3, 2012, the defendant filed a Notice of Appearance of new counsel dated November 19, 2012. The plaintiff filed a Reply Affirmation dated January 7, 2013. This Court held an evidentiary hearing on the plaintiff's motion seeking counsel fees and sanctions against the defendant on January 11, 2013 where both parties were represented by counsel.
The issue of the transfer of the automobile and financial accounts in accordance with the Financial Settlement Agreement dated November 1, 2011 was subsequently resolved by the parties on consent in a written stipulation dated February 16, 2012.
The plaintiff testified on her behalf and called D. R., a non-party, as a witness. The defendant testified on his behalf but did not call any witnesses.
D.R. testified that he and his wife, S.H.. and the parties' infant child reside in an apartment in the marital residence and had been tenants of the parties for two and a half (2.5) years. He testified that he works for, a non-profit, for prosecution of preservation of war crimes and that prior to moving to the United States from the United Kingdom he and his wife both worked with children as camp counselors for a children's organization that went camping with children. He testified that he and S.H.. met and had conversations with both of the parties and the children at an open house and had subsequently e-mailed the defendant-husband regarding move-in details. He further testified that the parties conducted a background and credit check on him and his wife, S. H., and made inquiry about their personal references before approving them as tenants. He testified that he “frequently” interacted with the parties' three (3) children after moving into the marital residence and that he and the children played X–Box and basketball together. He further testified that he and his wife had dinner with the plaintiff-wife and the parties' children sometimes and had a “friendly ... good relationship” with them.
D.R. testified that the plaintiff-wife asked him if he and his wife would be willing to provide child care for the parties' children about a week before she was scheduled to travel out of town for the Veterans Day weekend. D.R. testified that he and the plaintiff-wife discussed activities that he and his wife, S. H., would do with the children and made arrangements for back-up child care in case of any emergency on the Monday when he and S.H. would be working.
On cross-examination, D.R. testified that the plaintiff did not provide him with any medical power of attorney for the children and that he did not communicate with the defendant directly that he and his wife would be providing child care for the children.
The plaintiff testified that she planned to provide D.R. and S.H. with the defendant's contact information and arranged to provide a detailed emergency contact list and instructions for the children but that she never did because the defendant filed the ex parte application and as a result she was unable to go on her vacation. She testified that she arranged for additional back-up child care for the children in the event any of the children became sick and could not go to school on Monday when D.R. and S.H. would be working and that she had previously arranged with the defendant so that her trip would not interfere with his court-ordered parenting time on Sunday during the weekend she would be away. She testified that she also notified the children's school regarding her travel plans and confirmed that the school had the defendant's contact information in case of any emergency.
The plaintiff testified that prior to selecting D.R. and S.H. as tenants, she and the defendant conducted background, credit and personal reference checks on them. The plaintiff introduced into evidence e-mail correspondence between the defendant and D.R. regarding the rental of the apartment and move in specifics. She testified that she and the defendant only agreed to have D.R. and S.H. as tenants in the marital residence after they jointly decided that they were comfortable with them having frequent contact with their children. The plaintiff testified that the defendant met D.R. and S.H. with the children both at the open house and when they signed the lease.
On cross-examination, the defendant-husband testified that when he averred in his Affidavit dated November 10, 2011 that he had “no knowledge regarding the character, background, central registry status” of D.R. and S.H. that he meant that he had no knowledge “as it pertain[ed] to them taking care” of the parties' children. The defendant admitted that he and the plaintiff “did an overall check, a very high level check” including a background check of D.R. and S.H. before they jointly agreed to sign a lease with them. The defendant further conceded that the parties had jointly utilized tenants of the apartment in the marital residence to provide child care in the past prior to the divorce. He further testified that prior to filing the November 10, 2011 ex parte application he knew that the children sometimes spent time playing with D.R. and S. H.. On cross-examination, the defendant testified that when he referred to the tenants in his ex parte application as “strangers” he meant that they were “strangers ... in effect unable to care for my children because [he didn't] know them well enough” not that they were “generic strangers” despite referring to them as “complete strangers” in his sworn Affidavit dated November 10, 2011. He admitted that he never clarified his meaning of “strangers” to the Court during the court appearance on his ex parte application and that he did not inform the Court at that time of any of the prior interactions he had had with D.R. and S. H.. He further admitted that he and the plaintiff utilized an online agency for a financial and criminal background check on D.R. and S.H. prior to approving them to move into the marital residence in September 2010. The defendant further admitted on cross-examination that he never advised the Court during the November 10, 2011 ex parte hearing that he had had any personal interaction with D.R. and S.H. despite the Court making a detailed inquiry of the defendant through his attorney and rather he continued to maintain that D.R. and S.H. were “complete strangers.” Further, the defendant admitted that he never attempted to contact the plaintiff about any concerns he had about D.R. and S.H. providing child care for the parties' children prior to filing his ex parte Order to Show Cause.
On February 11, 2013, the parties waived a hearing on the issue of counsel fees and reallocation of expert fees and entered into a written stipulation requesting that the Court decide the issue of reallocation of expert fees and counsel fees based upon papers and supplemental affirmations of services.
Attorney Fees and Costs Associated with November 10, 2011 Ex Parte
Application
In her Affirmation dated February 6, 2012, plaintiff's counsel affirmed that the plaintiff incurred legal fees and disbursements in the sum of $3,579.50 between November 10, 2011 through and including January 3, 2012 in connection with the defendant's ex parte application dated November 10, 2011. In her Affirmation dated January 7, 2013, plaintiff's counsel affirmed that between January 4, 2012 through and including January 7, 2013, the plaintiff incurred additional legal fees and disbursements in the sum of $3,762.50 in connection with the defendant's ex parte application and an additional cost of $28.35 for the transcript of the November 10, 2011 ex parte hearing. Plaintiff's counsel affirmed that plaintiff had paid the sum of $6,204.50 towards that sum as of January 7, 2013. In her Updated Affirmation of Services, dated February 11, 2013, plaintiff's counsel affirmed that she billed the plaintiff for 34.50 hours for legal services rendered in connection with the defendant's ex parte application and requested an award of counsel fees in the sum of $12,075.00 and disbursements in the sum of $1,102.85.
As such, plaintiff requests an award of counsel fees and disbursements in the total sum of $13,177.85 in connection with the defendant's November 10, 2011 ex parte application.
These disbursements included transcripts from May 16, 2011 ($232.20); November 10, 2011 ($28.35); December 8, 2011 ($117.00); January 11, 2013 ($630.00); court filing fee for Notice of Motion dated February 7, 2013 ($45.00); and clerical fee for filing Notice of Motion ($50.00).
In Defendant's Opposition to Plaintiff's Request for Attorney's Fees and Defendant Request for Attorney's Fees dated February 25, 2013, defendant's counsel opposes plaintiff's request for counsel fees and posits that the plaintiff incurred counsel fees and costs because she forced the defendant to make an ex parte application on November 10, 2011 by attempting to conceal her travel plans from the defendant and that she should be ordered to pay defendant's counsel fees associated with the ex parte application. Defendant's counsel affirms that he billed the defendant for 15.25 hours for the preparation and trial of the hearing conducted on January 11, 2013 and requests that the plaintiff be ordered to pay the Defendant's attorney's fees in the sum of $5,337.50.
Reallocation of Fees for the Attorney for the Children
Plaintiff seeks reallocation of the counsel fees associated with the attorney for the children who was appointed on consent after the Court heard testimony during the pendente lite custody hearing on May 16, 2011. The Court appointed Francine Shraga, Esq. as the attorney for the children by Order dated May 18, 2011 and directed that the parties be equally (50/50%) financially responsible for her counsel fees subject to reallocation at trial. In her Memorandum of Plaintiff's Litigation Costs for Reallocation, dated February 11, 2013, plaintiff's counsel states that plaintiff paid the attorney for the children the sum of $2,800.00 and annexed cancelled checks in support of her representation. The wife's papers do not state a legal basis for her application for reallocation or propose a ratio of reallocation.
The defendant's papers did not address the issue of reallocation of the fees for the attorney for the children.
Reallocation of Fees for Forensic Evaluation
On November 22, 2011, after making an inquiry into the parties' respective incomes and ability to pay, the Court appointed Dr. N.G. Berill to conduct a forensic evaluation. The appointment Order provided that the parties be financially responsible for the cost associated with the forensic as follows: the plaintiff 49% and the defendant 51% subject to reallocation at trial. The wife's papers do not state a legal basis for her application for reallocation or propose a ratio of reallocation.
The defendant's papers did not address the issue of reallocation of the fees for the forensic evaluation.
Reallocation of Fees for License/Degree Evaluation
On June 7, 2011, the Court appointed Heidi Muckler to conduct an evaluation of the parties' enhanced earnings. The appointment order provides that the parties be financially responsible for the cost associated with the evaluation as follows: the plaintiff 49% and the defendant 51%. The appointment Order also provided that the cost was subject to reallocation at trial.
In her Memorandum of Plaintiff's Litigation Costs for Reallocation, dated February 11, 2013, plaintiff's counsel states that plaintiff paid the appointed evaluator the sum of $1,960.00 and annexed a copy of a cancelled check paid by the plaintiff to the evaluator in support of her representation. Plaintiff posits that an evaluation report was never issued because the defendant did not pay his full share of the fee in compliance with the Court Order. The defendant's papers did not address the issue of reallocation of the fees for the evaluation of the enhanced earning capacity or dispute the plaintiff's allegation that the report was not completed and issued because he failed to pay his court-ordered portion of the evaluation.
Ability to Pay
The wife contends that the husband's conduct in bringing the November 10, 2011 ex parte application caused her unnecessary counsel fees and costs and that she does not have the financial ability to pay her litigation expenses on top of her daily living expenses. The wife annexed a copy of her Affidavit of Net Worth, dated October 6, 2011 to her motion seeking counsel fees. According to her Affidavit of Net Worth, the wife's monthly expenses are $14,850.00 and she earns gross monthly income in the sum of $7,800.00. The wife also annexed her retainer agreement with her counsel to her application of expert fees.
The husband did not attach an Affidavit of Net Worth or any Affidavit regarding his finances to his opposition to the wife's applications for counsel fees and reallocation.
Attorney's Qualifications
Both attorneys submitted Affirmations as to their qualifications which do not appear to be in dispute.
Sanctions
Plaintiff's counsel affirms in her Affirmation in Support, dated February 6, 2012, to her Notice of Motion, dated February 7, 2012, that defendant should be sanctioned, pursuant to 22 NYCRR 130–1.1, in the sum of $5,000.00 for bringing his ex parte Order to Show Cause dated November 10, 2011. Plaintiff's counsel affirms that defendant's conduct was “reprehensible” and notes that the Court denied the defendant's ex parte application after finding on the record that his application was a “transparent effort” and “subterfuge” motivated by retaliation and designed to interfere with the plaintiff's travel plans for the Veterans Day weekend during 2011.
Discussion
Counsel Fees
The wife commenced this matter on September 28, 2010. Pursuant to Domestic Relations Law 237(a), as it existed at the time of the commencement of this action
, an award of counsel fees “is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case” ( Grant v. Grant, 71 AD3d 634, 895 N.Y.S.2d 827 [2 Dept., 2010], quoting Gruppuso v. Caridi, 66 AD3d 838, 839, 886 N.Y.S.2d 613 [2d Dep't 2009], quoting Morrissey v. Morrissey, 259 A.D.2d 472, 473, 686 N.Y.S.2d 71 [2 Dept., 1999] [internal quotations omitted] ). It is well-established that “[i]ndigence is not a prerequisite to an award of counsel fees” ( DeCabrebra v.Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176 [1987], quoting Walsh v. Walsh, 92 A.D.2d 345, 462 N.Y.S.2d 71 [1983] ). Rather, “[i]n exercising its discretionary power to award counsel fees, a court should 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, as well as the tactics of a party in unnecessarily prolonging the litigation” ( Franco v. Franco, –97 AD3d 785, 949 N.Y.S.2d 146 [2 Dept., 2012], citing DeCabrera, 70 N.Y.2d at 881;Powers v. Wilson, 56 AD3d 639, 641, 868 N.Y.S.2d 693, 695 [2d Dept., 2008]; Prichep v. Prichep, 52 AD3d 61, 64, 858 N.Y.S.2d 667, 670 [2d Dep't 2008] ). Further, “[a]n appropriate award of attorney's fees should take into account the parties' ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances' “ ( DiBlasi v. DiBlasi, 48 AD3d 403, 405, 852 N.Y.S.2d 195 [2 Dept., 2008], lv denied10 NY3d 716, 862 N.Y.S.2d 468 [2008], quoting Grumet v. Grumet, 37 AD3d 534, 536, 829 N.Y.S.2d 682 [2 Dept., 2007] [citations omitted] ).
.DRL 237 has been amended to provide that in matters commenced after October 10, 2010: “[t]here shall be 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. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in his own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section.”
The Court may look to which party has superior earning power and whether a party engaged in conduct or tactics which unnecessarily prolonged the litigation ( see, e.g., Nee v. Nee, 240 A.D.2d 478, 658, N.Y.S.2d 440 [2d Dep't 1997], Pauk v. Pauk, 232 A.D.2d 386, 648 N.Y.S.2d 621 [2 Dept., 1996] ). Specifically, the Court may consider “whether either party has ... taken positions resulting in a delay of the proceedings or unnecessary litigation.” (Chesner v. Chesner, 95 AD3d 1252, 1254, 945 N.Y.S.2d 409, 411 [2 Dept., 2012], quoting Prichep v. Prichep, 52 AD3d at 64 [internal quotations omitted] ).
Unlike a pendente lite award of counsel fees, a final order of counsel fees “[i]n the absence of ... a stipulation, an evidentiary hearing is required so that the court may test the claims” of the attorney seeking counsel fees regarding the extent and value of the services rendered (Kelly v. Kelly, 223 A.D.2d 625, 636 N.Y.S.2d 840 [2 Dept., 1996]; see also Pfluger v. Pfluger, 35 AD3d 828, 828 N.Y.S.2d 118 [2 Dept.,2006]; Nee v. Nee, 240 A.D.2d 478, 479, 658 N.Y.S.2d 440 [2 Dept., 1997]; Burns v. Burns, 193 A.D.2d 1104, 1105, 598 N.Y.S.2d 888 [4 Dept., 1993]; see also Marocco v. Marocco, 53 A.D.2d 707, 708, 383 N.Y.S.2d 939 [2 Dept., 1976]; Woessner v. Woessner, 108 A.D.2d 812, 813, 485 N.Y.S.2d 325 [2 Dept., 1985] ).
Affirmative relief must be requested by the appropriate Notice of Motion, Order to Show Cause or Cross–Motion and cannot be made in opposition papers alone (CPLR 2211; see New York State Div. of Human Rights v. Oceanside Cove II Apartment Corp (39 AD3d 608835 N .Y.S.2d 246 [2 Dept., 2007] ). Here, the husband sought counsel fees in his Affidavit in Opposition, dated April 23, 2013, to the wife's Notice of Motion, dated February 7, 2013. Even if the Court deemed the husband's Affidavit, dated April 23, 2013, to be a cross-motion, the husband's application for counsel fees does not comply with the requirements of DRL § 237(a) and 22 NYCRR § 202.16(k)(3) in so much as the husband failed to annex an Affidavit of Net Worth or Affidavit of any kind detailing his financial ability to pay his application for counsel fees ( see Garcia v. Garcia, 2013 N.Y. Slip Op 01802 [2 Dept., March 20, 2013]. The husband's application for counsel fees is denied.
The Court notes that at the time the husband made his ex parte application the Court had already awarded the wife temporary pendente lite sole custody of the children after conducting a full hearing and, as such, the wife was authorized to make child care arrangements as she determined to be in the children's best interest. While the Court does not endorse the wife's unilateral decision not to notify the husband directly regarding her travel plans, she was under no legal obligation to obtain the husband's consent to her selection of child care providers during her planned holiday weekend. Furthermore, it is clear from the record and testimony that the husband had no legitimate basis to believe that the children would be in danger if left with the individuals selected by the wife during the holiday weekend.
The husband obtained the ex parte stay enjoining the wife from leaving the children with any unrelated persons over the Veterans Day holiday weekend based on misrepresentations about his prior contact with the individuals—D.R. and S.H.—whom the wife selected to provide child care for the children.
The husband represented to the Court that D.R. and S.H. were “complete strangers” to him in a sworn Affidavit. Despite detailed inquiry by the Court on the record at the ex parte hearing on November 10, 2011 the husband, who was present in court, never informed the Court through his attorney that he had met D.R. and S.H. on several occasions, participated in conducting criminal and financial background checks on them and finally approved them to move into the apartment in the marital residence after discussing their personal references with the plaintiff-wife.
It is evident from the circumstances and the testimony presented during the hearing that the husband purposefully abused the ex parte notice rule when he made an ex parte application late in the afternoon immediately before the Court would close for an extended holiday weekend when the wife would have no opportunity to be heard or to seek relief for several days and her planned vacation would have to be aborted. It is also clear from the testimony that the husband made his ex parte application without first making any attempt to contact the wife directly in a vindictive attempt to “punish” the wife. It was not unreasonable for the wife's attorney to not be available to appear on a Friday afternoon, immediately before holiday weekend and to lead this Court to erroneously believe that the children were being improperly supervised.
Furthermore, the Court notes that the Uniform Rules for the New York State Trial Courts Rule 202.7(f), as relevant here, requires that:
“[a]ny application for temporary injunctive relief, including but not limited to a motion for a stay or a temporary restraining order, shall contain, in addition to the other information required by this section, an affirmation demonstrating there will be significant prejudice to the party seeking the restraining order by giving of notice. In the absence of a showing of significant prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application ....[emphasis added]”
Here, the husband represented at the ex parte hearing on November 10, 2011 that he learned of the wife's travel arrangements and her plan for D.R. and S.H. to provide child care for the children on November 9, 2011. The wife averred in her opposition, dated December 1, 2011, that the husband had known about her travel plans since November 5, 2011 and that the husband never contacted her directly during the evening on November 9, 2011 or during the day on November 10, 2011 about any concerns he may have had about her travel plans and child care arrangements before filing his ex parte application late in the afternoon on November 10, 2011 immediately before the Court was closing for the Veterans Day weekend holiday. In his Reply, dated December 6, 2011, the husband did not dispute the wife's representation that he never contacted her regarding his concerns regarding her planned child care arrangement for the holiday weekend during the evening of November 9, 2011 or at any time the following day before filing his ex parte application.
On November 10, 2011, the Court made a detailed inquiry regarding of the husband's attorney about what notice if any he provided to the wife's counsel regarding the ex parte hearing and the need for the ex parte stay on the eve of a Court holiday.
THE COURT: It's 4:00 p.m.
MR. MAINIERO: I understand that.
THE COURT: On Thursday before a three-day holiday weekend.
MR. MAINIERO: Yes.
THE COURT: And you notified your adversary this morning?
MR. MAINIERO: This afternoon or this morning.
THE COURT: It says here 9:35; is that correct?
MR. MAINIERO: No, I think my fax machine was an hour different because of the time change.
THE COURT: So, it was 10:35?
MR. MAINIERO: Yeah, something along those lines.
THE COURT: Have you heard from your adversary?
MR. MAINIERO: No, I have not, your Honor.
THE COURT: Have you phoned your adversary?
MR. MAINIERO: Yes, I have.
THE COURT: And?
MR. MAINIERO: I spoke with Ms. Schraga [sic] and I left a message for Ms. Coffinas. I don't know if they were in their office; as your Honor said, this is, you know, holiday weekend, and I only was alerted to this situation by my client this morning.
THE COURT: And when did he find out?
MR. MAINIERO: He hear (sic) it last night. He called me last night on my cell phone. Yeah, it must have been like 9:30.
THE COURT: When you called Ms. Coffinas today at her office, what did they say?
MR. MAINIERO: Well, I didn't. My office did and they left a message.
THE COURT: And the message you left?
MR. MAINIERO: I don't know, you Honor, I was supposed to be doing something else right now in the Bronx, so I came running here, but we sent her an e-mail, and he also faxed a set of the papers by fax and e-mail. I know for a fact that Ms. Schraga's [sic] voice machine was on which said that she would be out of the office from November 7th to November 11th; so I did my best to try to notify everyone here.
THE COURT: Well, Ms. Coffinas, I just want to make sure she was notified. You have knowledge that she was notified?
MR. MAINIERO: Yes, your Honor. If you look on the fax sheet, we have the receipt that everybody has it ...
THE COURT: My concern is that I'm doing this at five after 4:00; there is going to be no redress. If I sign this Order to Show Cause, there is no right to appellate review, the ultimate relief is granted, and it's an ex parte application. So, I just want to assure that Ms. Coffinas received it. Would you please go outside and verify with her office on the phone that they received it.
On December 8, 2011, the adjourn date of the husband's ex parte application, when all counsel appeared in Court, the Court inquired of the wife's counsel regarding what, if any, 22 NYCRR 202.7 notice she received about the husband's November 10, 2011 ex parte application.
THE COURT: Let the record reflect when this order to show cause came in on the eve of a holiday weekend, if I recall, I directed Mr. Mainiero to call your office and as an officer of the Court to make a representation that your office had indicated that you were aware of the application under 202.7 and that you were not coming.
MS. COFFINAS: Your Honor, I received an e-mail from Mr. Mainiero. The e-mail was clocked in at 1:40 that he was filing this order to show cause and I was already unavailable at that point.
THE COURT: I had also asked to find out if there were any other lawyers available in your office.
MS. COFFINAS: No one was.
THE COURT: I was very concerned. I would invite you to order the minutes. I invite you to order the minutes because I was very, very concerned about the timing of the order to show case.
The Court finds that, under the facts and circumstances here, the husband's counsel did not provide sufficient 22 NYCRR 202.7 notice to the wife's counsel by e-mailing her at 1:40 p.m. of his intent to file an ex parte application that very afternoon. The Court notes that the husband's counsel's representations on the record regarding his attempts to notify opposing counsel and the attorney for the children during the November 10, 2011 court appearance were often contradictory. For example, the husband's former counsel initially represented that he spoke with the attorney for the children, Ms. Shraga, but later represented that he only reached her voice mail message. At the hearing on November 10, 2011, the husband's former counsel also represented that he notified the wife's attorney “[t]his afternoon or this morning.” Had proper 22 NYCRR 202.7 notice been provided to wife's counsel so that she had a full opportunity to appear it is likely that the husband's deceptive representations would have been addressed, the stay would not have been granted and the litigation would not have been prolonged by the need for multiple court appearances.
The January 11, 2013 evidentiary hearing including testimony from the parties and a non-party witness. Upon full examination of the facts and circumstances after a hearing, the Court finds that the explanation provided by the husband for seeking the ex parte stay in the afternoon the day before a Court holiday without even attempting to contact the wife directly to discuss his alleged concerns was not reasonable. Furthermore, the husband repeatedly provided less than forthright representations in his filings and on the record through counsel which placed the Court in the untenable position of having to act to protect the children without the wife or the children being afforded due process. This Court finds that the husband abused the ex parte application process when he used it as a litigation tactic to purposefully interfere with the wife's vacation plans.
The Court finds that an award of counsel fees to the wife of the cost and disbursements associated with the husband's ex parte application dated November 10, 2011 is appropriate based on the husband's abuse of the ex parte application process and his blatant misrepresentations and half-truths to the Court which resulted in an ex parte stay that unnecessarily prolonged the litigation and forced the wife to incur over $13,000.00 of unnecessary legal fees and disbursements. As such, the wife is awarded the sum of $7,500.00 in counsel fees relating to the husband's ex parte application dated November 10, 2011, plus costs. Payment shall be made directly from the husband to the wife's counsel no later than thirty (30) days of service upon him or his counsel of this decision and order. If the husband fails to make payment within thirty (30) days from the date of this decision and order, the wife may enter a judgment with the Clerk of the Court upon notice to the husband, and without further application to this Court, for the amount due and owning, plus statutory costs and interest as of the date of his failure to pay.
Reallocation of Fees
Domestic Relations Law section 237(d) defines expenses that can be awarded. It “... shall include, but shall not be limited to, accountant fees, appraisal fees, actuarial fees, investigative fees and other fees and expenses that the court may determine to be necessary to enable a spouse to carry on or defend an action or proceeding under this section.”
The Court has wide discretion in awarding and reallocating litigation expenses other than counsel fees. Pursuant to DRL 237, the expenses include those that the Court may determine necessary to enable a spouse to carry on or defend an action or proceeding. In determining the appropriateness and necessity of awarding counsel fees, DRL 237 requires that the Court consider: (1) the nature of the marital property involved; (2) the difficulties involved, if any, in identifying and evaluating the marital property; (3) the services rendered and an estimate of the time involved, and (4) the applicant's financial status. These guidelines apply for the determination of the award, if any, of other litigation expenses ( see Ganin v. Ganin, 114 A.D.2d 883 [1985];see also Grumet v. Grumet, 37 AD3d 534 [2007] ). Under DRL 237, the Court has wide discretion in determining counsel fees for which a litigant will be responsible.
There is no indication that either of the parties is the monied spouse in this case. Despite requesting counsel fees himself, the husband failed to annex an Affidavit of Net Worth to his papers. Additionally, the husband never opposed or even addressed the wife's application for reallocation in his Opposition, dated April 23, 2013. As such, the Court may deem the statements made by the wife in her motion papers, including her statements regarding reallocation as true; however, the wife failed to make any specific application regarding her requested reallocation of counsel fees for the attorney for the children and expenses. The Court notes that the wife annexed the parties' Stipulation of Settlement, dated November 1, 2011, to her Notice of Motion dated February 7, 2013 which resolves the issue of child support; however, the stipulation does not recite any of the statutorily required Child Support Standards Act child support language and there is no representation by the parties in the stipulation regarding their respective incomes for the purpose of determining child support or what the presumptively correct child support would be as is required ( seeDRL 240 1–b (h)). As such, the Court has no papers or testimony before it upon which to make a determination based on the merits or even to grant the wife's requested based on waiver by the husband who failed to oppose the wife's application for reallocation. The only sworn statement available to the Court regarding the parties' representations on income is a so-ordered pendente lite Child Support Worksheet Subject to Reallocation, dated November 17, 2010, which was signed by both parties and their respective counsel. In the November 17, 2010 statement, the parties represented that their adjusted gross income was $76,500.00 each and that they are equally (50/50%) financially responsible for the pro rate share of child support. Even if the Court were to rely on the parties' representations in the November 17, 2010 so-ordered pendente lite child support agreement, there would be no basis to reallocate the payment to the Attorney for the Child as the Appointment Order, dated May 19, 2011, specified that the parties were 50/50% responsible for her payment. During the litigation it was represented to the Court previously that the parties earned similar incomes.
This Court set an initial retainer fee and hourly rate, subject to reallocation at the time of trial, at the time when the Court appointed the attorney for the children. The purpose of setting the fee subject to reallocation is two-fold: first, the fee is set after oral argument, usually without testimony, based on the parties' written and oral representations of his or her prior year's gross income and any extraordinary financial circumstances that the Court may consider in determining the parties' respective financial responsibility for the payment of the attorney for the children. The allocation was based on the parties' representations so fairness and due process dictate that any final order of fees should be subject to reallocation at the time of trial after discovery is complete and testimony is heard and documentary evidence is before the Court and the Court can make a finding regarding the parties' incomes. A pendente lite allocation is subject to reallocation especially where there is a belief at the time of the initial appointment that at trial the financial issues presented may result in a different allocation, for example, where a party misrepresented his or her income, where the Court determines that an imputation of income is appropriate under the facts and circumstances or where there has been a change in the parties' financial circumstances by the time of trial that would warrant a reallocation. This is not the issue in this case. The second set of circumstances that would warrant reallocation is where the acts of a party during the litigation necessitated a prolonging of the litigation or was so specious that the claim would have no merit and is frivolous. The Court does not view the basis for the reallocation to be the relative merits of each parties' claims. To do so would have a chilling effect on a party's due process right to litigation issues. The fact that the attorney for the children consistently supported additional parenting time pendente lite on behalf of her clients based upon their express wishes would defeat any argument by the wife that reallocation should be changed on this basis for the attorney for the children and the mental health evaluator.
The wife's application for reallocation of the cost associated with the enhanced earnings evaluation is granted. The husband sought the enhanced earnings evaluation of the wife's license and that parties agreed to be financially responsible for it as follows: the plaintiff 49% and the defendant 51%, subject to reallocation at trial. The wife annexed a copy of a cancelled check paid by her to the appointed evaluator in the sum of $1,960.00. The husband did not dispute the wife's allegation that the evaluation report was never completed and issued because he did not pay his full share of the fee in compliance with the Court Order. As such, the Court orders the husband to reimburse the wife the sum of $1,960.00 for the sum she paid to the appointed evaluator. The husband shall pay the sum of $1,960.00 directly to the wife within thirty (30) days of service upon him or his counsel of this decision and order. If the husband fails to make payment within thirty (30) days of service upon him or his counsel of this decision and order, the wife may enter a judgment with the Clerk of the Court with costs and interest from said date, upon notice to the husband, and without further application to this Court, for the amount due and owning, plus statutory costs and interest.
Awards of Costs and Imposition of Financial Sanctions for Frivolous Conduct in Civil Litigation
Pursuant to the 22 NYCRR 130–1.1:
(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court ... costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part [emphasis added], which shall be payable as provided in section 130–1.3 of this Part....
(b) ...
(c) For purposes of this Part, conduct is frivolous if:
(1) ...
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another [emphasis added]; or
(3) it asserts material factual statements that are false.
Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct [emphasis added]; ...
As applicable here, conduct is defined as frivolous when “it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another ...” 22 NYCRR 130–1.1(c)(2). Whether conduct is frivolous depends on “the circumstances under which the conduct took place” (22 NYCRR 130–1.1(c)(3)(2)). The question then becomes whether the conduct was designed to harass or maliciously injure another ( see Badillo v. Badillo, 62 AD3d 635, 877 N.Y.S.2d 691 [2 Dept.2009]; see also Rennie–Otote v. Otote, 15 AD3d 380, 790 N.Y.S.2d 62 [2 Dept., 2005] ).
Here, the Court finds that sanctions against the husband are appropriate based on frivolous conduct related to the ex parte application as defined under 22 NYCRR 130. The husband repeatedly represented to the Court in a sworn Affidavit and through counsel on the record on November 10, 2011, when the husband was present in Court, that the persons the wife selected to provide child care—D.R. and S.H.—were “complete strangers” to him. The husband steadfastly maintained his representation even after the Court made inquiry on the record as to whether the husband had honest and sincere concerns regarding the safety of the children if left with D .R. and S.H.. Based on the record before the Court, including the papers and the testimony on the record, it is evident to the Court that the husband misrepresented his knowledge of and past interactions with D.R. and S.H. and presented, at best, only half-truths in order to obtain an ex parte stay enjoining the wife from leaving the children with unrelated persons in order specifically to interfere with her planned vacation departure the next day. This Court finds the husband's testimony at the hearing on January 11, 2013 attempting to amend his prior sworn statement by offering his own unique definition of “complete strangers” disingenuous since the husband never clarified to the Court that his definition included people whom he had interviewed, met on multiple occasions and on whom he had conducted background and reference checks.
The purpose of the notice provision of 22 NYCRR 202.7 is to afford all sides an opportunity to be heard by the Court before ex parte relief is granted. Here, there was no basis for the husband not to provide “reasonable notice” to the wife and for the husband not to raise, or even to attempt to raise, his concerns with the wife directly before seeking ex parte relief. The Court notes that there were no orders of protection in place and no Court ordered restrictions on the husband's ability to communicate with the wife. For the husband to misrepresent that the children were being left with “complete strangers” raising the specter that the wife was placing the children in danger falsely was inappropriate. The record is clear that the persons selected by the wife to provide child care for the holiday weekend, after her parents could not assist her with child care, which was the subject to the husband's November 10, 2011 ex parte application, were not “complete strangers” to the husband. The Court will not allow the husband's decision to blatantly misrepresent facts that were within his knowledge to the Court in order to gain an advantage in his attempt to “punish” the wife—a sanctionable act. The husband's behavior and misrepresentations were a clear abuse of the judicial process.
This Court finds that the husband's ex parte application was frivolous, as defined under by 22 NYCRR 130–1.1(c), because the husband's sworn Affidavit in Support of the ex parte application asserted material factual statements that were false and the application was designed primarily to prolong the resolution of the litigation and to attempt to “get even” with the wife by interfering with her planned vacation weekend. The Court notes that the husband's testimony at the November 10, 2011 hearing and during the January 11, 2013 sanctions hearing and his sworn representations in his Affidavits relating to his ex parte application were replete with reference to how he believed the wife had wronged him The Court finds that sanctions fixed in the sum of $1,000.00 is appropriate here because the husband's frivolous ex parte application forced the wife to incur unnecessary costs and it unnecessarily prolonged the litigation. This Court will not allow a litigant to abuse the ex parte application process by using it to “punish” another litigant. The plaintiff's application for sanctions against the defendant is granted to the extent that the defendant is sanctioned in the sum of $750.00. Under 22 NYCRR 130–1 .3, when the Court sanctions a litigant who is not an attorney for frivolous conduct the payment shall be deposited with the Clerk of the Court for transmittal to the Commissioner of Taxation and Finance. The defendant shall deposit the sum of $750.00 with the Clerk of the Court for transmittal to the Commissioner of Taxation and Finance within sixty (60) days of service upon him or his counsel of a copy of this decision and order.
Conclusion
The Court finds that the husband engaged in litigation strategies that amounted to dilatory tactics in bringing the ex parte Order to Show Cause dated November 10, 2012. The wife's application for counsel fees incurred based on the husband's ex parte Order to Show Cause dated November 10, 2012 is granted to the extent that she is awarded the sum of $7,500.00 as and for counsel fees related to the husband's ex parte application which the husband shall pay to the wife within thirty (30) days of the date of this decision and order. The wife's application for reallocation of costs associated with the attorney for the children and the forensic evaluation is denied for the reasons stated herein. The wife's application for reallocation of fees associated with the enhanced earning evaluation is granted to the extent that the husband shall reimburse her the sum of $1,960.00 within thirty (30) days of the date of this decision and order.
This shall constitute the decision and order of this Court.