Opinion
Index No. 66010/2022
12-06-2023
G.W., Plaintiff, v. J.W., Defendant.
Unpublished Opinion
MOTION DECISION
James L. Hyer, J.
Basic Background & Procedural History
The parties to this matter were married on November 5, 2005, in Sleepy Hollow, New York, in a religious ceremony. Together, they have one unemancipated child: (1) M.W. (born XX/XX/2010); (hereinafter referred to as the "Child"). No further children of the marriage are expected.
Plaintiff commenced this matrimonial action on September 30, 2022, with the filing of a Summons, Complaint and ancillary documents. On October 28, 2022, Plaintiff filed an Affidavit of Service of Gary DiPaolo indicating that the following documents were personally served upon Defendant on October 20, 2022: (1) Summons; (2) Verified Complaint; (3) Notice of Electronic Filing; (4) Notice of Entry of Automatic Orders pursuant to DRL § 236; (5) Notice of Guideline Maintenance; and (6) Notice Concerning Continuation of Health Care Coverage.
On November 8, 2022, Defendant filed a Verified Answer.
A Decision and Order was entered on July 10, 2022, pertaining to Motion Sequence No.1 in this action which consolidated a family offense proceeding known as "J.W. o/b/o M.W. v. G.W.," commenced in the Putnam County Family Court under File Number 13740 and Docket Number O-00788/22, (hereinafter referred to as the "Family Office Proceeding").
On June 30, 2023, a Note of Issue and Certificate of Readiness for Trial was filed.
On July 18, 2023, a Pre-Trial Conference Order was entered directing a Pre-Trial Conference to be held on October 12, 2023, at 9:00 a.m.; and a Trial to commence on December 5, 2023, at 9:00 a.m. to proceed for an allocated four days of Trial.
On October 5, 2023, Plaintiff's counsel requested an adjournment of the Pre-Trial Conference, which was granted to a new date of October 13, 2023, at 9:00 a.m.
On October 13, 2023, the Pre-Trial Conference was held after which six documents were marked as Court Exhibits being the following: (1) Court Exhibit #1, Plaintiff's Witness List; (2) Court Exhibit #2, Defendant's Witness List; (3) Court Exhibit #3, Stipulation of Agreed Upon Facts; (4) Court Exhibit #4, Joint Statement of Proposed Disposition; (5) Court Exhibit #5, Plaintiff's Exhibit List, including a stipulation as to exhibits to be marked for identification and moved into evidence at trial on consent; and (6) Court Exhibit #6, Defendant's Exhibits, including a stipulation as to exhibits to be marked for identification and moved into evidence at trial on consent.
On November 15, 2023, a Stipulation was submitted to the Court resolving custody and access of the Child which was "so ordered" by the Court.
On December 5, 2023, counsel and parties appeared for the first day of trial and requested that the Court assist in the parties' settlement negotiations pertaining to the remaining financial issues arising out of the dissolution of the parties' marriage. Counsel represented on the record that they had conferred with their respective clients and both parties consented for the Court to assist in settlement negotiations with the understanding that in doing so the Court would not be precluded from proceeding to hear this case in the event a resolution was not reached through settlement. Thereafter, a settlement was placed upon the record, followed by an allocution of both parties, wherein all remaining issues were resolved inclusive of the Family Offense Proceeding with the exception of each parties' application for attorneys' fees and litigation costs arising out of this litigation and Family Offense Proceeding. Parties and counsel were directed by the Court that Trial on the remaining issue would commence on, at 10:00 a.m.
Trial Testimony and Documents in Evidence
The Court held the trial on.
All parties and counsel appeared. Plaintiff's counsel advised the Court that Plaintiff would not be asserting a claim for the payment of Plaintiff's attorneys' fees or litigation costs arising out of this litigation and Family Offence Proceeding. Defendant's counsel advised the Court that Defendant would be asserting a claim for the payment of Defendant's attorneys' fees and litigation costs arising out of this litigation and Family Offense Proceeding. Counsel stipulated on the record that Defendant's counsel would present his case first, followed by Plaintiff presenting her case, which was accepted by the Court.
During trial, 3 exhibits were admitted into evidence by Defendant on consent by Plaintiff, including:
- Defendant's Exhibit A - Engagement Agreement of Santoro & Scigliano, dated September 21, 2022
- Defendant's Exhibit B - Engagement Agreement of Santoro & Scigliano, dated November 1, 2022
- Defendant's Exhibit C - Billing records of Santoro & Scigliano, dated October 4, 2022 through December 5, 2023.
During the trial the following witnesses provided testimony:
1. Plaintiff G.W.
2. Defendant J.W.
3. Defendant's Counsel Steven M. Santoro, Sr., Esq.
a. Testimony of Defendant's Counsel Steven M. Santoro, Sr., Esq.
Mr. Santoro testified that he has been practicing for over twenty years, concentrates his continuing legal education in the areas of matrimonial law, family law and ethics. He testified that both of the Engagement Agreements admitted into evidence as Defendant's Exhibits A and B, were properly executed in compliance with the applicable court rules and law. He testified that his firm's billing invoices admitted into evidence as Defendant's Exhibit C were prepared in compliance with the terms of the Engagement Agreements. He testified that all of the services rendered were necessary and fees charged were reasonable, and likely at an hourly billing rate below the customary hourly billing rate charged by others in this field of practice and court. He testified that his client had paid legal fees totaling $82,939.53, consisting of $10,000.00 paid by Plaintiff and $72,939.53 paid by Defendant. He testified that in addition to this amount his firm was projected to have additional legal fees incurred, but not yet billed in this action, in the amount of approximately $8,000.00, for which his client was not asserting any request for payment by Plaintiff. He further testified that while Plaintiff's current counsel had provided much assistance in bringing the majority of these matters to an amicable resolution through settlement, that Plaintiff's prior counsel engaged in frivolous conduct and unnecessary litigation resulting in this action being protracted and causing an increase in costs. He testified that Plaintiff is the monied spouse earning approximately $275,000.00 per year, with Defendant earning approximately $30,000.00 per year, with Defendant earning approximately 11% of the combined income.
b. Defendant's Testimony
Defendant testified that she executed the Engagement Agreements admitted into evidence as Defendant's Exhibits A and B, that she was satisfied with the legal services she was provided by her counsel, and that all services provided by her counsel were necessary.
Defendant testified that she works twenty-five to thirty hours per week, earning approximately $32.00 per hour. She testified that her work schedule permits her to continue her care of the Child as she had during the parties' marriage, including a forty-minute commute with the Child to and from the Child's school. She testified that she has volunteered at the Child's school somewhat continuously since the Child was in the second grade. She testified that she has inherited assets of over $100,000.00 dollars.
c. Plaintiff's Testimony
Plaintiff testified that during the marriage he had a base salary of $275,000.00 with a bonus of $142,000.00 per year, and that he currently has a base salary of $275,000.00 per year with a possible bonus of an additional $25,000.00 per year. He testified that since the commencement of this litigation he has paid the majority of the parties' living expenses, will be distributing funds to the Defendant as a result of the settlements reached in this action and he will be left with approximately $40,000.00 in his bank accounts. He testified that he has incurred legal fees arising out of this litigation in the amount of approximately $180,000.00, inclusive of fees owed to his prior counsel. He testified that his prior attorney took actions without his knowledge.
d. Closing Statements
Defendant's counsel requested that all of Defendant's legal fees paid by Defendant totaling $72,939.53, by paid by Plaintiff, and as these funds had already been paid to Defendant's counsel that the award be made directly to Defendant. Plaintiff's counsel requested that Plaintiff be required to pay none of the Defendant's legal fees.
Findings of Fact & Conclusions of Law
a. Counsel Fees
The Appellate Division Second Department has noted how a trial court should determine if an award of attorneys' fees is warranted in a matrimonial action:
In a matrimonial action, an award of attorney's fees is a matter committed to the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case (see Prochilo v. Prochilo, 165 A.D.3d 1304, 84 N.Y.S.3d 786; Patete v Rodriguez, 109 A.D.3d 595, 599, 971 N.Y.S.2d 109). The purpose of Domestic Relations Law § 237(a) is to redress the economic disparity between the monied spouse and the nonmonied spouse by ensuring that the latter will be able to litigate the action on equal footing with the former (see Chesner v. Chesner, 95 A.D.3d 1252, 1253, 945 N.Y.S.2d 409; Finnan v. Finnan, 95 A.D.3d 821, 943 N.Y.S.2d 559; Prichep v. Prichep, 52 A.D.3d 61, 64-65, 858 N.Y.S.2d 667).
In determining whether to award attorney's fees, the court should review the financial circumstances of both parties, together with all of the other circumstances of the case, including, inter alia, the relative merit of the parties' positions, and whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Prochilo v. Prochilo, 165 A.D.3d 1304, 84 N.Y.S.3d 786; Chesner v. Chesner, 95 A.D.3d 1252, 945 N.Y.S.2d 409; Prichep v. Prichep, 52 A.D.3d at 64-65, 858 N.Y.S.2d 667).(Brockner v Brockner, 174 A.D.3d 567, 568 [2d Dept. 2019]).
Defendant has requested that Plaintiff pay her legal fees that she paid to her legal counsel pertaining to this litigation and the consolidated Family Offense Proceeding totaling $72,939.53, in addition to the prior sum of $10,000.00 Plaintiff paid to her legal counsel. Defendant testified that she entered into two Engagement Agreement with her attorney for services pertaining to this action. The first pertains to the Family Offense Proceeding and is dated September 21, 2022. It is fully executed and includes a provision that the hourly fee rate is $400.00. The second pertains to this litigation and is dated November 1, 2022. It is fully executed and includes a provision that the hourly fee rate is $425.00. Defendant's counsel provided further testimony with respect to these documents. Both Engagement Agreements include an attached Statement of Client's Rights and Responsibilities for Domestic Relations Matters. Plaintiff consented to these documents being admitted into evidence and made no assertions that they were not in compliance with any Court Rules or applicable law. With no such assertions or objections, and upon review of the documents, the Court determines that the Engagement Agreements comply with all applicable Court Rules and law.
Defendant further testified that she received invoices from Defendant's counsel which were admitted into evidence on consent. Defendant testified that she believed the services to be reasonable and provided no objection to the amounts charged, testimony that largely mirrored that of Defendant's counsel. At no time did Plaintiff assert that any of the legal services provided to Defendant by Defendant's counsel were unreasonable, unnecessary or otherwise improper. Accordingly, upon the Court's review of the Defendant's billing records, the Court determines that all of the services provided by Defendant's counsel were reasonable and in no manner improper.
With respect to the charges made by Defendant's counsel for the legal services rendered to Defendant in this litigation and in the Family Offense Proceeding, at no time did Plaintiff's counsel assert that the billing records reflected entries which did not comport with the two engagement agreements. A review of the billing records of Defendant's counsel reflects that the hourly fees charged were as set forth in the two aforementioned Engagement Agreements, being $400.00 per hour and $425.00 per hour. Accordingly, upon the Court's review of the Defendant's billing records, the Court determines that all the amounts charged by Defendant's counsel for legal services provided by Defendant's counsel were in compliance with the subject engagement agreements.
With respect to the hourly fees charged by Defendant's counsel, being $400.00 and $425.00 per hour, Plaintiff made no assertion that this fee was unreasonable or excessive. Accordingly, upon the Court's review of the Defendant's engagement agreements and Defendant's billing records, the Court determines that the hourly fee charged was reasonable.
Finally, with respect to the total amount charged by Defendant's counsel, Plaintiff made no assertion that the total amount was excessive. To the contrary, the Court received testimony from Plaintiff who testified that his legal fees incurred in this ligation total approximately $180,000.00, being approximately $100,000.00 higher than the total fees incurred by Defendant in this litigation. Accordingly, upon the Court's review of the Defendant's engagement agreements and Defendant's billing records, the Court determines that the total amount of Defendant's attorneys' fees charged was reasonable.
The Court has examined the equities and financial circumstances in this case. Initially, the Court notes that throughout the parties' marriage, Plaintiff was the primary wage earner with Defendant largely assuming the role of a stay-at-home spouse whose responsibility was to manage the house and be the primary caregiver for the parties' Child. Defendant's annual income of approximately $30,000.00 is significantly less than that of Plaintiff's current base salary of $275,000.00, which includes the possibility of a bonus to increase that amount to as much as $300,000.00. This Court has also taken note of the parties' conduct throughout the litigation. While Defendant has asserted that Plaintiff, through Plaintiff's prior counsel, engaged in frivolous tactics which resulted in this litigation being prolonged at increased expense to Defendant, Plaintiff offered no testimony to the contrary and tacitly agreed by testifying that he did not know what his then legal counsel was doing. The Court does not find this compelling as Plaintiff was present throughout this litigation and must bear the responsibility of his legal counsel, past and present, who he retained to act as his advocates in this litigation.
Accordingly, the Court directs that:
1. Plaintiff's Legal Fees - Plaintiff shall be solely responsible for all legal fees and litigation costs of this action incurred by him; and
2. Defendant's Legal Fees - In addition to the sum of $10,000.00 Plaintiff previously paid towards Defendant's legal fees in this litigation, Plaintiff shall be responsible for Defendant's additional legal fees incurred by Defendant in this matter in the amount of $50,000.00, which shall be payable by Plaintiff to Defendant by December 31, 2024. In the event this amount is not paid in full by December 31, 2024, Defendant shall be permitted to submit a money judgment, noticed for settlement, against Plaintiff in the unpaid amount. Defendant shall be responsible for all other legal fees and litigation costs of this action that she incurred.
b. Other Relief
Any relief specifically not granted or otherwise addressed herein is denied.
* * *
Based upon the foregoing, it is hereby
ORDERED that Defendant is awarded from Plaintiff the sum of $50,000.00, as and for counsel fees and litigation costs, which shall be paid by Plaintiff to Defendant by December 31, 2024. In the event this amount is not paid in full by December 31, 2024, Defendant shall be permitted to submit a money judgment against Plaintiff, noticed for settlement, in the unpaid amount; and it is further
ORDERED that Plaintiff shall be solely responsible for all legal fees and litigation costs of this action incurred by Plaintiff; and it is further
ORDERED that by December 8, 2023, Defendant's counsel shall service a Notice of Entry with a copy of this Decision and Order, and by that date file proof of service; and it is further
ORDERED that to the extent any relief sought has not been granted it is expressly denied.
The foregoing constitutes the Decision and Order of the Court.