Opinion
V-17556/14
08-06-2015
In the Matter of a Proceeding for custody under article 6 of the Family Court Act Sylwia S., Petitioner, Peter W., Respondent.
Olga J. Rodriguez, Forest Hills, for Sylwia S. Norah Hart, New York, NY for Peter W.
Olga J. Rodriguez, Forest Hills, for Sylwia S.
Norah Hart, New York, NY for Peter W.
John M. Hunt, J.
Petitioner has moved pursuant to Domestic Relations Law §237 (b) for an order awarding her counsel fees and directing that the respondent, Peter W., pay the amount of counsel feesawarded to her.
This Court presided over the trial of this custody proceeding, which was conducted on January 29 and 30, 2015 and February 2, 2015. At the conclusion of the trial, the Court issued orders dated March 10, 2015 and March 11, 2015 which granted the parties joint legalcustody of their daughter, Isabella W. (born May 16, 2010), and further awarded primary physical custody of the child to the mother, Sylwia S., and visitation to the father, Peter W.
The parties have waived a hearing upon the mother's motion for an award of counsel fees (see DeJesus v. DeJesus, 264 AD2d 436 [1999]; Matter of O'Shea v. Parker, 16 AD3d 510, 511 [2005]; Matter of Luo v. Yang, 104 AD3d 852, 852-853 [2013]), and the Court has reviewed and considered the following documents in connection with the mother's motion seeking an award of counsel fees: (i) affirmation of the mother's attorney, Olga J. Rodriguez, Esq., dated February 22, 2015; (ii) affidavit of the mother, Sylwia S., dated February 22, 2015; (iii) the 2014 Wage and Tax Statement (W-2 form) of both parties; (iv) retainer agreement between Sylwia S. and Olga J. Rodriguez; (v) billing invoice and statement of services rendered by Olga J. Rodriguez dated September 25, 2014 and February 23, 2015; (vi) discovery demands and correspondence exchanged by counsel relating to the custody proceeding; (vii) affirmation in opposition by Norah Hart, Esq., dated March 4, 2015 and exhibits appended to the affirmation; and (viii) reply affirmation of Olga J. Rodriguez, Esq. dated March 10, 2015.
It is clear that the Family Court is empowered by Family Court Act §651 (b) and Domestic Relations Law §237 (b) to award counsel fees in custody proceedings "when warranted by the circumstances of the case" (Matter of Feng Lucy Luo v. Yang, 104 AD3d at 852; see also Matter of O'Neil v. O'Neil, 193 AD2d 16, 19-20 [1993]; Matter of Belle v. DeMilia, 19 AD3d 691, 691-692 [2005]; Matter of Dempsey v. Dempsey, 78 AD3d 1179 [2010]; Matter of Ross v. Ross, 96 AD3d 856, 858 [2012]).
In exercising the authority to award counsel fees in a custody proceeding, the Family Court "must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions. The court may also taken into account whether one party has delayed the proceedings or engaged in unnecessary litigation" (Mueller v. Mueller, 113 AD3d 660, 661 [2014] [citations omitted]; see also Dempsey, 79 AD3d at 1179; Matter of Baribault v. Sauvola, 101 AD3d 865, 866 [2012]; Matter of Tinger v. Tinger, 108 AD3d 569, 570 [2013]; McMahon v. McMahon,120 AD3d 1316 [2014]; Sutaria v. Sutaria, 123 AD3d 908 [2014]; Matter of Liebenstein v. Irani, 125 AD3d 970 [2015]; Wilson v. Wilson, 128 AD3d 1326, 1327 [2015]; Matter of Steven S. v. Yelena M., 129 AD3d 408 [2015]). Other pertinent factors include the nature and extent of counsel's services, the party's ability to pay counsel's fees, the complexity of the issues involved, and counsel's experience, ability and professional reputation (Matter of Hulsair v. Benedetto, 254 AD2d 488, 489 [1998]; Matter of Grald v. Grald, 33 AD3d 922, 923 [2006]; Matter of Felix v. Felix, 110 AD3d 805 [2013]).
Petitioner entered into a retainer agreement with her attorney, Olga J. Rodriguez, whereby it was agreed that petitioner agreed to pay counsel $350.00 per hour for services rendered in connection with this custody proceeding. Ms. Rodriguez commenced her representation of the mother on or about September 16, 2014 and represented her in connection with the Family Court matter, which included a contested custody trial, until approximately February 23, 2015. The total fee charged by Ms. Rodriguez for representing the mother in the Family Court proceeding is $10,703.75, of which $3,703.75 remained unpaid as of February 22, 2015. The total fee is reasonable and supported by counsel's time sheets which are appended to the motion.
Ms. Rodriguez also represented Ms. S. in the parties' matrimonial action in the Supreme Court. That action was commenced on November 28, 2014 and it was concluded before Justice Margaret P. McGowan on June 8, 2015. Petitioner's motion for counsel fees does not request an award for any services rendered by Ms. Rodriguez in the matrimonial action.
While there was some delay in commencing the custody trial, it was not excessive, and the case reached a conclusion exactly seven months after the first petition was filed on September 15, 2015. Some of the delay is likely attributable to the breakdown in communication between the attorneys for the parties, which is at least partially attributable to the matrimonial action which was pending before the Supreme Court at the time that this custody proceeding was being litigated, but there is nothing which suggests that either party or counsel were actively obstructing the litigation from proceeding, or that either party or counsel undertook actions in bad faith.
Here there is clearly a significant disparity in the income of the parties, as established by the documentation submitted upon the motion and confirmed by the testimony adduced at the trial. According to petitioner's counsel, Mr. W. earned $145,903.05 in 2014 and petitioner's income was $23,596.31. While it appears that some interim counsel fees were awarded to petitioner in the matrimonial action on stipulation, this Court is aware of one such payment of $5,000 directed by the Supreme Court. This Court is also aware that the petitioner was required to engage separate counsel to represent her in the Criminal Court based upon a domestic violence complaint lodged by Mr. W., and that the criminal matter ultimately resulted in an adjournment in contemplation of dismissal (Criminal Procedure Law §170.55 [1]).
An adjournment in contemplation of dismissal constitutes neither an acquittal nor a conviction in a criminal action ( see Hollender v. Trump Village Cooperative, 58 NY2d 420, 424 [1983]; People v. Petty, 17 AD3d 220, 221 [2005]).
With respect to the proceeding before this Court, and upon consideration of the pertinent factors, especially the disparity in income between the parties, this Court finds that an award of counsel fees to the mother is warranted. However, the same factors which support an award of counsel fees also militate against granting the mother's request that respondent be responsible for her entire fee in this proceeding. While the mother's resources appear to be less than the father's, she is not indigent and there is nothing to indicate that she cannot afford to pay some of the fee charged by her attorney. Lastly, and not insignificantly, it is noted that neither party has was ordered to pay any part of the fee of the attorney for the child in this Family Court proceeding, and that attorney will be compensated from court funds for his services pursuant to Judiciary Law §35 (see Fam Ct. Act §245 [c]; Lips v. Lips, 284 AD2d 716, 717 [2001]; Matter of Plovnick v. Klinger, 10 AD3d 84, 88-90 [2004]).
Presumably the Supreme Court has made provision for child support to be paid by the father. The amount of any order of support has not been disclosed to this Court.
The Appellate Divisions have issued divergent decisions concerning the authority of the Family Court to compel parents to pay for the services of an attorney for the child appointed by the court. The Second Department has found that Family Court may direct a parent to pay the fees of the attorney for the child ( Plovnick, 10 AD3d at 89-90), while the Appellate Divisions in the Third and Fourth Departments hold that it may not ( Matter of Lynda A.H. v. Diane T.O., 243 AD3d 24, 27 [1998], lv denied 92 NY2d 811 [1998]; Matter of Redder v. Redder, 17 AD3d 10, 14 [2005]).
Therefore, upon consideration of the record and the pertinent factors, the Court grants the petitioner's application for an award of counsel fees to the extent that the respondent shall be responsible for seventy-five percent (75%) of the total counsel fee incurred by the mother in this proceeding.
It is accordingly,
ORDERED, that petitioner's motion for an award of counsel fees is granted to the extent that respondent shall pay 75% of the counsel fee of $10,703.75 incurred by the petitioner in this custody matter; and it is
ORDERED, that counsel fees in the amount of $8,027.81 are awarded to Sylwia S.
And that the respondent, Peter W., shall pay the sum of $8,027.81 to the petitioner not later than 45 days after a copy of this order is served upon him by the petitioner or her attorney of record in
this proceeding; and it is further
ORDERED, that the branch of the motion requesting the imposition of sanctions upon
the respondent and his attorney (see 22 NYCRR §130-1.1 [a]), has been withdrawn by the petitioner, and that branch of the motion is therefore denied as academic.
This constitutes the order of the Court.
E N T E R:
_______________________________
JOHN M. HUNT
Judge of the Family Court
Dated: Jamaica, New York
August 6, 2015