Opinion
No. 20828/09.
2013-04-4
G.C., Plaintiff, v. K.C., Defendant.
Bodnar & Milone, LLP, White Plains, for Plaintiff. K. C., Defendant–Pro Se.
Bodnar & Milone, LLP, White Plains, for Plaintiff. K. C., Defendant–Pro Se.
JOHN P. COLANGELO, J.
In this post-judgment matrimonial case, Plaintiff G.C. (“Plaintiff”), through her attorneys Bodner & Milone, LLP (“Bodner & Milone”), seeks to recover counsel fees from Defendant K.C. (“Defendant”). Such counsel fees relate to attorney time expended by Bodner & Milone with respect to several post-judgment motions and cross-motions (listed infra, pp. 2–3), as well as time spent on counsel's efforts to recover fees, including the conduct of a fee hearing in September and November 2012 (the “Hearing”). Shortly after the Hearing concluded, the Supreme Court, per Hon. Francesca E. Connolly, rendered a written decision dated December 12, 2012 (the “Connolly Decision,” Exh. J to Plaintiff's Post–Hearing Affid.) concerning Plaintiff's application for counsel fees incurred by her during the course of the underlying matrimonial case. While the Connolly Decision is certainly not controlling here, the observations made and conclusions reached by Justice Connolly sound eerily familiar and further inform this Court regarding the nature and extent of Defendant's conduct.
Indeed, even a cursory review of the Connolly Decision reveals that Defendant has mastered the dark art that is all too common among certain matrimonial litigants: the art of procrastination and obstruction. In her Decision, Judge Connolly found that Defendant's dilatory tactics had needlessly prolonged the parties' matrimonial action and, for that reason among others, awarded counsel fees to the aggrieved party—Plaintiff, his former spouse—to the tune of over $550,000.00.
Undaunted and apparently undeterred, Defendant has continued to practice this art in the post-judgment arena, as evidenced by his conduct in the instant case. Such behavior ranged from the sublime insistence on doing things his way and only his way—in the face of clear stipulation provisions to the contrary—to the ridiculous of refusing to divulge his address and then claiming—incredibly—a lack of memory as to the amount of rent he pays and to whom.
The motion practice in which Plaintiff was constrained to engage, and for which she seeks counsel fee compensation, included:
(1) A motion to compel Defendant to abide by the clear terms of the parties' October 24, 2011 Stipulation of Settlement (the “Stipulation”) and convey title to certain real property in Vermont which the parties had jointly owned—a demand to which Defendant acceded only after Plaintiff's motion had been fully submitted;
(2) A motion to compel Defendant to pay child support that was clearly due;
(3) Submission of opposition to Defendant's efforts to reduce his child support obligation, which the Court found meritless since no significant change in circumstances was shown;
(4) Plaintiff's motion to—as mind boggling as this may seem—compel Defendant to reveal his residential address so that Plaintiff would know where the parties' child would be staying during visits with her father.
As Plaintiff's witness, Lydia Milone—a partner in Bodner & Milone—testified, and as the documents adduced at the Hearing by Plaintiff reflect, such motion practice necessarily entailed the preparation of motion papers, often accompanied by voluminous exhibits, as well as related correspondence, and counsel's attendance at numerous court appearances.
Most egregious, however, in light of the plain provisions of the Stipulation, was the extensive motion practice and appearances relating to the requirement that Defendant convey his interest in several limited partnerships to Plaintiff. By her motion with respect to which she seeks much of her counsel fee reimbursement, Plaintiff simply sought to vindicate her rights under a clear and unambiguous provision of the parties' Stipulation (Stip., p. 8)—a provision that pertained to part of the equitable distribution award.
That provision called upon Defendant to sign over to Plaintiff his interest in certain limited partnerships. Sounds straight forward enough. But true to form, Defendant refused—for no apparent reason other than delay—to do so unless his own, personally devised form was used. This insistence upon only using forms drafted, devised and agreed to by him was clearly not contemplated by the Stipulation, which only stated that the partnership the interests be transferred. Not surprisingly, such insistence necessitated motion practice, and it was only when the Court was on the verge of appointing Plaintiff as Defendant's attorney in fact for purposes of executing the requisite documents did Defendant relent and sign the appropriate transfer documents in open court.
Since Defendant's conduct, as described in summary fashion above, resulted in a needless expenditure of time, resources, and fees by Plaintiff, Defendant bears responsibility for them under statutory and case law. DRL § 237(a) vests the Court with the discretion to make a reasonable award of counsel fees as justice requires, based upon the equities and circumstances of the case. See De Cabrera v.. De Cabrera–Rosete, 70 N.Y.2d 879, 881 (1987); Morken v. Morken, 292 A.D.2d 431 (2d Dept.2002) (“An evaluation of what constitutes reasonable counsel fees is a matter generally left to the sound discretion of the trial court ... which is often in the best position to judge those factors integral to the fixing of counsel fees.”).
The Court may consider the relative merits of the parties positions, particularly whether tactics engaged in by a party can reasonably be viewed as nothing more than stonewalling “tactics ... that unnecessarily prolonged the litigation.” Powers v. Wilson, 56 AD3d 639, 641 (2d Dept.2008). Such “stonewalling” was precisely the situation that obtained with respect to Defendant's conduct concerning the various motions at issue here. Defendant's conduct during this period, as demonstrated by the testimony and documents adduced at the Hearing, leads the Court to reach the same conclusion as reached by Judge Connolly concerning the underlying matrimonial case, namely that “plaintiff's counsel was required to spend an inordinate amount of time on this case due to the defendant's unreasonable and obstructionist conduct.” (Connolly Dec., p. 3).
Unfortunately, after the above listed substantive motions were decided, including the motion regarding the limited partnership transfers, Defendant persisted in his obstreperous behavior; Defendant insisted that the Court conduct a Hearing on the issue of attorneys fees—which was his right. The Hearing took place on September 12, 2012 and November 20, 2012. However, in view of the above and in light of the evidence adduced at the Hearing itself, Defendant had no cognizable defense to Plaintiff's claim for attorneys fees and the Hearing served no purpose other than delay.
Moreover, Defendant needlessly prolonged the Hearing by refusing to answer rudimentary questions through the artifice of alleged lack of memory—questions such as where he currently resides, how much rent he pays, and the identity of his landlord. In view of these and other dilatory tactics in which engaged during the Hearing, Plaintiff more than satisfied the threshold criteria established in O'Shea v. O'Shea, 93 N.Y.2d 187 (1999) which permit a Court to award legal fees expended by a party in his or her effort to recover a counsel fee award. See also, Wyser–Pratte v. Wyser–Pratte, 160 A.D.2d 290 (1st Dept.1990).
Accordingly, Plaintiff is entitled to an award of legal fees to compensate her for costs incurred in prosecuting her motions to compel Defendant to abide by the plain terms of the Stipulation. In so finding, the Court also considered other factors, as permitted by relevant case law and enumerated in the leading text, Scheinkman, New York Law of Domestic Relations, § 19:5 at 135–136 (12 West's N.Y. Practice Series 2011): “[T]he standing of counsel, the time devoted to the action, the nature of the services, the complexity of the matters, and the results achieved. In evaluating the reasonableness of the fees requested, the court does not look solely at the time charged, but makes an assessment of the reasonable value of the services, bearing in mind the size of the marital estate, the complexity of the issues, and difficulties presented.”
In reviewing the value of the services rendered to Plaintiff, her counsel presented appropriate evidence at the Hearing as to the nature, extent and worth of the services so provided ( see generally Klotz v. Klotz, 169 A.D.2d 423 [1st Dept.1991] ). Plaintiff's counsel are experienced, highly regarded, matrimonial attorneys, whose hourly rates are comparable to attorneys of their experience and professional standing.
Plaintiff is seeking a total amount of $64,888.75 in legal fees and disbursements. A review of the bills submitted by Bodner & Milone confirms that the amount sought in legal fees is commensurate with the services required to be performed in this case. Based upon a review of all the billing records and in light of the testimony adduced at the Hearing, the fees are fair and reasonable in their totality. As a result of the Defendant's recalcitrance and obstructive tactics, and considering the relative merits of the parties' positions and the equities of the case, the Defendant shall be responsible for 75% of the Plaintiff's net legal fees, totaling $48,665.56.
Based upon the foregoing, it is hereby
ORDERED, that the Plaintiff is awarded counsel fees against the Defendant in the sum of $48,665.56; and it is further
ORDERED, that Plaintiff may enter a money judgment in the amount of $48,665.56 against Defendant as and for counsel fees, which judgment shall be submitted on notice to Defendant; and it is further
ORDERED that Plaintiff is entitled to interest on the judgment at the statutory rate of 9% per annum in accordance with CPLR § 5004.
Any other relief requested and not decided herein is denied.
The foregoing constitutes the Decision and Order of this Court.