Opinion
No. CV15–0402.
02-27-2017
Amy GARVEY, Plaintiff, v. Lee GARVEY, Defendant.
Whitson & Rogers, Elizabethtown (Debra A. Whitson of counsel), for plaintiff. Anderson & Soloski, LLP, Plattsburgh (Tina J. Soloski of counsel), for defendant.
Whitson & Rogers, Elizabethtown (Debra A. Whitson of counsel), for plaintiff.
Anderson & Soloski, LLP, Plattsburgh (Tina J. Soloski of counsel), for defendant.
ROBERT J. MULLER, J.
Presently before the Court is plaintiff's application for counsel fees in the amount of $27,703.67, which amount is comprised of $26,441.67 in legal fees and $1,262.00 in fees "paid directly by her to third parties for essential services related to [the] case."
"In an action for divorce, ‘the court may direct either spouse ... to pay counsel fees ... directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties' " ( Teaney v. Teaney, 138 AD3d 1301, 1302 [2016], quoting Domestic Relations Law § 237[a] ; see Vertucci v. Vertucci, 103 AD3d 999, 1004 [2013] ; O'Connor v. O'Connor, 91 AD3d 1107, 1109 [2012] ). In exercising its discretionary powers, the Court must consider " ‘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' " ( Teaney v. Teaney, 138 AD3d at 1303, quoting DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881 [1987] ; accord Lang v. Lang, 72 AD3d 1255, 1256 [2010] ). The Court may also consider the " ‘the complexity of the case and the extent of legal services rendered’ " ( Teaney v. Teaney, 138 AD3d at 1303, quoting Armstrong v. Armstrong, 72 AD3d 1409, 1416 [2010] ), as well as whether a party has engaged in conduct resulting in a delay of the proceeding or unnecessary litigation (see Johnson v. Chapin, 12 NY3d 461, 467 [2009] ; Armstrong v. Armstrong, 72 AD3d at 1416 ; Nelson v. Nelson, 290 A.D.2d 826, 828 [2002] ). Where, as here, the matrimonial action was commenced on or after October 12, 2010 (see L 2010, ch 329, § 1), "there is a ‘rebuttable presumption that counsel fees shall be awarded to the less monied spouse’ " ( Teaney v. Teaney, 138 AD3d at 1303, quoting Domestic Relations Law § 237[a] ; accord Vantine v. Vantine, 125 AD3d 1259, 1262 [2015] ; see Gifford v. Gifford, 132 AD3d 1123, 1126 [2015] ).
Upon the commencement of this action, plaintiff was undisputedly the less monied spouse, with a salary of $23,235.00 per year as compared to defendant's salary of $97,191.00 per year. Since then, however, plaintiff has been awarded $1,150.00 per month in child support and $650.00 per month in spousal support—thus raising the amount she receives per year to approximately $44,835.00. Plaintiff has also received a distributive award of $120,000.00 pursuant to the stipulation entered into by the parties on November 23, 2016, with $20,000.00 to be paid by defendant within sixty (60) days and the remaining $100,000.00 to be paid in monthly installments of $1,666.66. Therefore, while plaintiff remains the less monied spouse, the Court finds that her financial circumstances have improved substantially.
The Court further finds that plaintiff has caused delay in this action by, inter alia, failing to obtain the necessary professional valuations prior to the trial on equitable distribution.
Based upon the foregoing, the Court concludes that plaintiff is not entitled to the entire $26,441.67 requested (see Armstrong v. Armstrong, 72 AD3d at 1416 ; Nelson v. Nelson, 290 A.D.2d at 828 ). Rather, plaintiff is hereby awarded $10,000.00 in legal fees, together with the $1,262.00 incurred in out-of-pocket expenses, for a total of $11,262.00. Defendant shall have ninety (90) days from the date of service of this Decision and Order with notice of entry thereon to pay counsel for plaintiff the $11,262.00 awarded.
Therefore, having considered the Affirmation of Debra A. Whitson, Esq., dated December 6, 2016, submitted in support of the application; Affidavit of Amy Garvey with exhibits attached thereto, sworn to December 6, 2016, submitted in support of the application; Affirmation of Tina J. Soloski, Esq., sworn to December 19, 2016, submitted in opposition to the application; Affidavit of Lee J. Garvey with exhibits attached thereto, sworn to December 19, 2016, submitted in opposition to the application; and Reply Affirmation of Debra A. Whitson, Esq., dated December 28, 2016, it is hereby
ORDERED that plaintiff's application is granted to the extent that she is awarded counsel fees in the amount of $11,262.00; and it is further
ORDERED that defendant shall have ninety (90) days from the date of service of this Decision and Order with notice of entry thereon to pay counsel for plaintiff the $11,262.00 awarded.
The foregoing constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the submissions enumerated above. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of this Decision and Order for service with notice of entry upon defendant in accordance with CPLR 5513.