Opinion
Index No. XXXXXX/2020
11-01-2022
JM, Plaintiff, v. RM, Defendant.
Attorney for Plaintiff: Charles J. Ferzola Attorney for Defendant: Simonetti & Associates Attorney for the Child: Patricia Miller Latzman
Attorney for Plaintiff: Charles J. Ferzola
Attorney for Defendant: Simonetti & Associates
Attorney for the Child: Patricia Miller Latzman
HON. EDMUND M. DANE, J.S.C.
Papers Read on these Motions:
Attorney for the Child Notice of Motion dated August 31, 2022
Defendant's Opposition
Attorney for the Child's Reply
PRELIMINARY STATEMENT
The Attorney for the Child, Patricia Latzman, Esq., moves by Notice of Motion dated August 31, 2022 (Motion Sequence No.: 010) seeking an Order: directing that a trial retainer of $15,000 be paid to Patricia Latzman, Esq., the attorney for the child by the parties in accordance with the Order of Appointment on or before October 15, 2022 with regard to the pending trial which is being scheduled by the Court at our next court appearance; and granting such other and further relief as this Court deems just and proper.
BACKGROUND
This action for divorce and ancillary relief was commenced by the filing of a Summons with Notice with the Nassau County Clerk's office on June 16, 2020. Inasmuch as this application is one by the AFC seeking a trial retainer, for the purposes of this application, a review of the procedural posture of this case warrants discussion herein as the Court deems same relevant to its determination herein.
The Defendant initially appeared pro se. The Plaintiff appeared through counsel, Philip Lights, Esq. On June 25, 2020, the Defendant, pro se, filed an Order to Show Cause (Motion Sequence No.: 001) seeking, inter alia, temporary legal and physical custody of XX, and an order of the return of the child to the marital residence located at XXXX, Westbury, New York. On July 5, 2020, the law firm of Manners & Malone, PLLC, was retained by the Defendant as his counsel. On July 6, 2020, this Court appointed Melissa Studin Young, Esq., as attorney for the child, XX. On July 6, 2020, this Court, inter alia, directed that the Plaintiff return the child, XX, to Nassau County on or before July 14, 2020 and directed that neither party relocate outside of Nassau County with the minor child absent an order of this Court or written consent of the parties.
On August 28, 2020, a second Order to Show Cause (Motion Sequence No.: 002) was filed by the Defendant seeking, inter alia, legal custody for educational purposes. On September 1, 2020, this Court issued a Short Form Order which, inter alia, directed both parties to utilize their best efforts to have XX accepted and enrolled at Stonybrook for the 2020-2021 school year, but if the school refused to accept the child, then the Defendant was to have custody for educational purposes only, and solely for the purpose of enrolling the child at Holy Family Middle School.
On October 2, 2020, the Defendant executed a Consent to Change Attorney, substituting Wisselman, Harounian & Associates, P.C., in place and stead of Manners & Malone, PLLC. On October 5, 2020, the Plaintiff filed an Order to Show Cause (Motion Sequence No.: 003) seeking, inter alia, temporary legal and physical custody of the child. On November 24, 2020, the Defendant filed an Order to Show Cause (Motion Sequence No.: 004) seeking, inter alia, pendente lite custody, supervised access between the Plaintiff and XX, and reunification therapy between the Defendant and XX. On November 30, 2020, this Court issued a Short Form Order granting that portion of the Defendant's Order to Show Cause (Motion Sequence No.: 004) which sought reunification therapy and referred all other branches sought therein to a hearing.
On January 20, 2021, Charles Ferzola, Esq., was substituted in place and stead of the Plaintiff's then-counsel, Philip Lights, Esq. On February 22, 2021, the Defendant again filed an Order to Show Cause (Motion Sequence No.; 005) seeking, inter alia, interim educational custody, an order that the child continue to physically attend school at XXX, and an immediate hearing on the issues of pendente lite custody and the request for supervised access. On March 23, 2021, this Court issued an Order Appointing Mental Health Professional, appointing Dr. Nicole Berman, Psy.D. as a forensic evaluator to conduct a comprehensive mental health evaluation.
On September 20, 2021, this Court issued a Short Form Order which directed, inter alia, that visitation between the Defendant and XX was to take place at Kids in Common every Saturday from 11:15 a.m. to 12:15 p.m. On November 24, 2021, this Court issued a Short Form Order directing that the Defendant enjoy unsupervised parenting time with XX on Thanksgiving Day, 2021, and on November 27, 2021. On November 29, 2021, this Court issued a Short Form Order which directed, inter alia, that the Defendant has unsupervised parenting time with XX at the paternal grandparent's home in New Jersey every Saturday from 10:00 a.m. to 6:00 p.m., and that as long as the child is visiting with the Defendant pursuant to that Order, the Order directing visits at Kids in Common was temporarily suspended.
On January 14, 2022, the Defendant filed an Order to Show Cause (Motion Sequence No.: 006) seeking, inter alia, an adjudication of contempt against the Plaintiff, immediate full temporary legal custody of XX, including immediate temporary residential custody and immediate temporary full decision-making authority, an expedited hearing on the issue of legal custody, to suspend the Plaintiff's contact with XX except for court ordered supervised or therapeutic access, and an order that the prior AFC substitute her judgment at the time of trial due to parental alienation. On January 14, 2022, the Defendant's prior counsel, Wisselman, Harounian & Associates, P.C., sought leave of court for a security interest in the parcel of real property located at 64 Waterbury Lane, Westbury, New York.
On February 18, 2022, the prior AFC, Melissa Studin Young, moved by Notice of Motion (Motion Sequence No.: 008) seeking to be relieved as counsel for XX and sought the immediate appointment of a new AFC. The Defendant opposed this motion. On March 28, 2022, this Court issued a Decision and Order which, inter alia, granted the application of Melissa Studin Young, Esq., to be relieved as counsel for XX. By Separate Order Appointing Attorney for the Child dated March 29, 2022, this Court thereupon appointed Patricia Latzman, Esq., as attorney for XX. On June 8, 2022, the Defendant's prior counsel, Wisselman, Harounian & Associates, P.C., moved by Order to Show Cause (Motion Sequence No.: 009) seeking, inter alia, to be relieved as counsel for the Defendant. On June 9, 2022, the Defendant executed a Consent to Change Attorney form, substituting Simonetti & Associates in place and stead of Wisselman, Harounian & Associates. On September 9, 2022, the Defendant filed with the Court a Note of Issue & Certificate of Readiness. This Court has set this matter down for trial, which is set to commence on January 23, 2023, and is to continue on January 24, 2023, January 25, 2023, January 26, 2023 and January 27, 2023.
On October 25, 2022, the Defendant herein filed, under a separate plenary proceeding entitled In the Matter of the Application of RM, Petitioner, For a Writ of Habeas Corpus with Respect to Custody and Visitation of XX, born on XXX,XX,XXXX, against JM, Respondent, under Index No.: XXXXXX/2022, a Petition for Writ of Habeas Corpus. This Court signed the Writ of Habeas Corpus on October 26, 2022, and directed that the subject child be produced to this Court on November 17, 2022 at 9:30 a.m.
DISCUSSION
The AFC's Contentions:
The AFC sets forth that she was appointed by this Court to represent XX on March 29, 2022. The AFC argues that the Defendant refuses to settle this matter, and it is highly unlikely that this matter will be resolved, with many days of testimony forthcoming. She sets forth that this testimony will include the testimony of the forensic evaluator. She argues that as of the date of her Affidavit, her retainer has not fully been paid, and there is an outstanding balance due to her. She argues that if she does not receive a trial retainer, she will have to spend multiple hours preparing for trial and participating in same without being paid. She argues that the Defendant has retained two attorneys since her appointment, but has failed to pay his full share of her retainer. She argues that the Defendant is the monied spouse. She argues that her currently hourly rate is $350 per hour and a $15,000 trial retainer is appropriate.
Defendant's Opposition:
The Defendant argues that the AFC's request for a trial retainer is "not in the best interest of the child". He argues that the Plaintiff is suffering from mental illness and that she suffered horrific abuse as a child at the hands of her father. He argues that the Plaintiff's unfounded claims have been disproven, disposed of and debunked. He argues that the child reported in his initial interview with the first AFC that the things the Plaintiff accused him of never happened and that the Plaintiff has sought to alienate him from the child. He argues that he has not seen the child in two years and that the Plaintiff has frustrated his attempts at reunification. He argues that the Plaintiff withdrew the child from therapy. He argues that the Court appointed reunification therapist reported a long and consistent pattern of parental alienation. He argues that the Court appointed forensic made no findings of alienation and Dr. Berman "recommended an immediate change in custody". He argues that the Plaintiff cut the child off from him and the Plaintiff obtained a criminal court order of protection against him. He argues that the AFC was substituted in this case "late" after the child made allegations against the first AFC and that allegations were "planted" in his head. He argues that "Ms. Latzman knew she was coming into a matter which had already been heavily litigated, and she knew there were bizarre circumstances surrounding XX." He argues that the AFC knew from the beginning of her involvement that the child had been kept by the Plaintiff from visiting with him. He argues that the AFC previously refused to speak with him until she received an authorization, and, once said authorization was received, the AFC still refused to speak with him. He argues that the AFC refuses to communicate with him, but speaks extensively with the Plaintiff. He argues that the AFC has recommended that the best way for him to re-establish his communication with the child is to allow the child to move to North Carolina. He argues that AFC has been critical that he is not paying child support. He criticizes the AFC's advocacy to remove the child from private school and to be home schooled. He argues that the AFC has stated that she is skeptical of alienation. He argues that there is nothing in this record which should cause the AFC concern. He argues that the AFC's request for a retainer is in the best interest of the Plaintiff.
AFC's Reply:
In reply, the AFC argues that the Defendant's Affidavit improperly provides the Court with information from the forensic evaluation, which the Defendant was not permitted to do. She argues that the Defendant, in effect, improperly quotes the prior attorney for the child and improperly puts hearsay in his Affidavit. The AFC argues that the Defendant's position is, in effect, that unless she supports his position, she should not be paid. The AFC contends that the Defendant makes false statements in his Affidavit. She argues, in effect, that the Defendant's position is more about custody rather than the issue that is the subject of her motion, to wit: a trial retainer.
Any allegations of what the forensic report may have stated are not properly before this Court on this application and, in any event, have been disregarded by this Court and not considered in the determination herein.
Plaintiff's Position:
The Court notes that the Plaintiff has not interposed papers in support of or in opposition to this application.
ANALYSIS
Motion Sequence No.: 010:
TRIAL RETAINER FOR THE AFC
This application presents the question of whether or not this Court should direct the parties, in a contested custody matter, to pay a trial retainer to the AFC. This Court begins with a line of authority recognizing that courts are authorized to direct that a parent who has sufficient financial means to do so pay some or all of the attorney for the child's fees (Matter of Plovnick v Klinger, 10 A.D.3d 84, 89, 781 N.Y.S.2d 360 [2004]; see 22 NYCRR 36.4; Judiciary Law § 35 [3]; Rupp-Elmasri v Elmasri, 8 A.D.3d 464, 778 N.Y.S.2d 289 [2004]; Jain v Garg, 303 A.D.2d 985, 986, 755 N.Y.S.2d 921 [2003]; Pascarelli v Pascarelli, 283 A.D.2d 472, 724 N.Y.S.2d 636 [2001]). See Pascazi v. Pascazi, 65 A.D.3d 1202 (2d Dept. 2009). In addition, the Court has considered a series of opinions and decisions, along with statutory authority, regarding the role of the AFC.
Writing for the Second Department in Matter of Newton v. McFarlane, then-Presiding Justice Scheinkman authored an opinion of that Court wherein it was written:
When an attorney is appointed by the court to represent a child in a contested custody proceeding, that attorney must be afforded the same opportunity as the attorneys for the parents and other contestants to fully participate in the proceeding. An attorney appointed to represent a child in a custody proceeding has the duty and the obligation to zealously represent the child. In order to fulfill that weighty responsibility, the appointed Attorney for the Child has the right, equal to the right of the attorneys for the litigants, to fully appear and participate in the litigation, including the right to call, examine, and cross-examine witnesses, and the right to advance arguments on behalf of the child.
Matter of Newton v. McFarlane, 174 A.D.3d 67 (2d Dept. 2019) (internal citations omitted) (emphasis added). Clearly, Matter of Newton v. McFarlane found that the AFC must zealously represent his or her client, and must appear and participate in the litigation. Approximately one year later, Justice Linda Christopher, writing for the Second Department, authored an opinion in which it was found that the AFC's representation of her client's therein was in direct contravention of the children's stated parameters, concluding that the AFC "...failed to take an active role in the proceedings by presenting evidence and witnesses on behalf of her clients..." Silverman v. Silverman, 186 A.D.3d 123, 128 (2d Dept. 2020). (emphasis added). Two years later, in O'Mahoney v. O'Mahoney, the Second Department again held that an attorney for the child is tasked with advocating for the child's wishes and best interests, precisely because the child has a real and vital interest in the outcome and a voice that should be heard. O'Mahoney v. O'Mahoney, 206 A.D.3d 819 (2d Dept. 2022).
Similarly, the Third Department has written on the role of the AFC, writing that "...[t]o effectively represent and protect a child's interests, the attorney for the child's role is twofold: (1) help the child express his or her wishes to the court, and (2) take an active role in the proceedings..." Matter of Payne v. Montano, 166 A.D.3d 1342 (3d Dept. 2018) (emphasis added). In another case, the Third Department wrote:
In establishing a system for providing legal representation to children, the Family Ct Act identifies, as one of the primary obligations of the attorney for the child, helping the child articulate his or her position to the court (see Family Ct Act § 241). As with the representation of any client, whether it be at the trial level or at the appellate level, this responsibility requires consulting with and counseling the client.Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092 (3d Dept. 2009).
In addition, 22 NYCRR § 7.2 provides, inter alia, that:
(b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex parte communications; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation.
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(d) In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the child's position.
Family Ct Act § 241 provides, in relevant part, that:
This act declares that minors who are the subject of family court proceedings or appeals in proceedings originating in the family court should be represented by counsel of their own choosing or by assigned counsel. This declaration is based on a finding that counsel is often indispensable to a practical realization of due process of law and may be helpful in making reasoned determinations of fact and proper orders of disposition.(emphasis added).
The 2010 Recommendations of the Family Court Advisory and Rules Committee provide, inter alia, that "...[t]he Commission reiterates that at all times during the proceeding, the attorney for the child is subject to the same rules of good lawyering and professional responsibility applicable to any attorney in a civil proceeding or action, and must represent the client within those bounds..."
It is worth summarizing: the AFC is tasked with the weighty responsibilities of zealously advocating for his or her client (see O'Mahoney, supra), taking an active role in the proceedings (see Silverman, supra; see Matter of Payne, supra), consulting and counseling the client (see Matter of Mark T., supra). In addition, the AFC must subject themselves to the ethical requirements applicable to all lawyers (see 22 NYCRR § 7.2(b)) including the rules of good lawyering and professional responsibility (see 2010 Recommendations of the Family Court Advisory and Rules Committee). So it naturally begs the proverbial questions: if AFC's are subject to the same rules are privately retained counsel, why shouldn't they have an expectation of compensation? The answer is simple: they should.
In 2021, Justice Jeffrey Sunshine, in awarding an additional retainer to be paid to the AFC, wrote as follows:
Under these unique circumstances where parties are willing to pay hundreds of thousands of dollars for lawyers and experts to protect their interests but are reluctant to pay the attorney for the child, to protect the child's interest, an additional retainer is warranted.Goldman v. Abramova-Goldman, 73 Misc.3d 975 (Supreme Court New York County 2021).
In 2018, this Court was presented with an application by an Attorney for the Child seeking an adjudication of contempt against a parent for nonpayment of fees pursuant to an Order of Appointment. This Court, in T.K. v. D.K. wrote the following:
This court finds no reason to distinguish between a parent's right to counsel fees and the child's right in the same litigation. The AFC cannot and should not be expected to actively participate in ongoing litigation without payment.T.K. v. D.K., 61 Misc.3d 311 (Supreme Court Nassau County 2018) (emphasis added).
The Court has carefully weighed the narrow question before it, and arrives at a conclusion that the AFC is entitled to a trial retainer. In fact, this Court sees no logical or cognizable basis to distinguish the initial retainer and a trial retainer. The Court has carefully reviewed the papers in opposition to this motion and finds that neither party has provided this Court with a sufficient or persuasive basis to distinguish between the initial up-front retainer and a trial retainer. In arriving at the conclusion that the AFC is entitled to a trial retainer in this matter, the Court has, in addition to other factors, carefully considered the procedural history of this case and notes that there have been no less than six (6) applications made by both parties seeking some form of relief relating to custody; multiples orders have been issued during the pendency of this action concerning either custody and/or parental access; and a recently filed Writ of Habeas Corpus. During the pendency of this action, spanning almost three years, the issues of custody and parental access have been at the forefront. The parties' conduct during the pendency of litigation leads this Court to the inescapable conclusion that a trial is inevitable.
In this respect, the unfortunate reality is that this contentious matrimonial action presents the quintessential scenario of when a trial retainer should be awarded to an AFC. These two parents, irrespective of their reason(s) have decided, at least at this juncture, to leave the ultimate decision on who is awarded custody and what the parental access schedule will be to this Court. While that is their absolute prerogative, it logically follows, therefore, that a trial in this matter will require the AFC to take an active role during (and even before) that trial. The AFC's responsibility at this trial is of no lesser importance than either party's privately retained counsel inasmuch as this child will have a real and substantial interest in the outcome of this matter (see Matter of Newton, supra).
In arriving at its conclusion herein that the AFC is entitled to a trial retainer, the Court has also considered the AFC's unrefuted assertion that her initial retainer has not been fully paid, and that the Defendant has failed to pay his full share of her retainer. Facts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted. Vardaros v. Zapas, 24 Misc.3d 1247 (A) (Supreme Court Queens County 2009); see also Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539 (1975). The Court has considered that, during the pendency of this action, the Plaintiff has been represented by two privately retained counsel, and the Defendant has been represented by three privately retained counsel. The conduct of both parties in this action has led this Court to the conclusion that to the extent that either (or both) of the parties are dissatisfied with this Court's trial decision, either of them may not remit payment to the AFC. This Decision and Order, in part, seeks to avoid that inequitable result. In addition, the Court has carefully reviewed the Defendant's arguments in his opposition papers. While the Defendant seems imbued with attacking the Plaintiff, her mental health and her parental decisions, as well as the positions espoused by and the conduct of the AFC vis-a-vis the representation of her client, his arguments not only become threadbare, but are inapposite to the narrow issue at hand: whether or not the AFC should be paid a trial retainer.
Next, the Court undertakes an analysis of the appropriate amount of a trial retainer. Indeed, 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. Prichep v. Prichep, 52 A.D.3d 61 (2d Dept. 2008); see also Gilliam v. Gilliam, 109 A.D.3d 871 (2d Dept. 2013). In its determination of an attorney's fee application, the trial court must consider the relative financial circumstances of the parties, the relative merit of their positions, and the tactics of a party in unnecessarily prolonging the litigation. Baron v. Baron, 71 A.D.3d 807 (2d Dept. 2010). Indeed, the Court of Appeals has recognized that the realities of contentious matrimonial litigation require a regular infusion of funds so as to prevent the accumulation of attorney's fees. Kaufman v. Kaufman, 131 A.D.3d 939 (2d Dept. 2015). The Court sees no reason as to why these principles should not apply to an application made by the AFC for an additional advance or trial retainer.
In awarding the AFC a trial retainer, the Court simply exercises its discretionary authority. The Court notes that pursuant to the first Order Appointing Attorney for the Child dated July 6, 2020, this Court directed that a $5,000.00 retainer be remitted to Melissa Studin Young, Esq. After Ms. Studin Young was relieved as counsel for XX, this Court issued a second Order Appointing Attorney for the Child dated March 29, 2022, appointing Patricia Latzman, Esq., as the AFC. In said order, this Court directed that a $4,000.00 retainer be remitted to Patricia Latzman, Esq. This Court therefore finds that a trial retainer of $10,000.00 is an appropriate trial retainer to be paid to the AFC. In arriving at this sum, this Court has considered the procedural posture of this case, the applications made by the parties during the pendency of this action, the relative positions of the parties, the financial circumstances of the parties, the hourly rate of the AFC of $350.00 per hour, as well as the fact that a trial of this matter is now scheduled for five (5) days, set to commence on January 23, 2023 through January 27, 2023. In considering the payment of fees as delineated herein, the Court has also considered that neither party has been directed to pay 100% of the AFC's fees or this trial retainer as ordered herein, and instead are paying it pursuant to the Order of Appointment, which is 70% by the Defendant and 30% by the Plaintiff. Since each party is responsible for a pro rata share of the AFC's trial retainer as ordered herein (see infra), no prejudice befalls either party, especially this trial retainer as directed herein may be reallocated at the conclusion of this matter. Therefore, the Court reaches the conclusion that the child's parents - who are asking this Court to impose a decision upon them after a trial - should bear and shoulder the cost of the AFC's trial retainer.
Accordingly, based upon the facts and circumstances of this case, its procedural history, a review of the applicable statutes and case-law, the Defendant's opposition to this motion, it is hereby:
ORDERED, that the AFC's Notice of Motion dated Show Cause dated August 31, 2022 be and is hereby GRANTED TO THE EXTENT as is more fully set forth in this Decision and Order; and it is further
ORDERED, that a $10,000.00 trial retainer shall be advanced by the parties and paid directly to the Attorney for the Child, Patricia Latzman, Esq., within fourteen (14) days of the date of this Decision and Order; and it is further
ORDERED, that the trial retainer as set forth herein shall be paid by the parties in the same proportion as set forth in the Order Appointing Attorney for the Child dated March 29, 2022, with the Plaintiff paying thirty (30%) of said $10,000.00 trial retainer and the Defendant paying seventy (70%) percent of said $10,000.00 trial retainer; and it is further
ORDERED, that the $10,000.00 trial retainer as set forth in this Decision and Order may be subject to reallocation, if appropriate, at the conclusion of this matter.
All other relief not specifically addressed herein is hereby DENIED.
This constitutes the DECISION AND ORDER of this Court.