Opinion
Docket: REDCATED
11-24-2021
In a matter of a support proceeding under Article 4 of the Family Court Act, K.T., Petitioner, v. M.T., Respondent.
Dorothy Courten, Esq. for Petitioner; Jeffrey Schechter, Esq. for Respondent.
Dorothy Courten, Esq. for Petitioner;
Jeffrey Schechter, Esq. for Respondent.
Paul M. Hensley, J.
On November 5, 2021, Petitioner timely filed objections (Objections) to the October 8, 2021 Order on Motion (K. L. Coward, S.M.) (Order). The Objections were accompanied by a proper proof of service. No one filed rebuttal. The matter is now before this Court for decision on the Objections.
In reaching this Decision, this Court reviewed and relied on the motion brought by order to show cause, the cross-motion which includes a request for attorneys fees because the motion is frivolous and which constitutes the opposition to the motion, the opposition to the cross-motion which is also captioned as a reply, and the Order.
Petitioner served two judicial subpoenas duces tecum, one on Gold Medal Gymnastics (Gold Medal Subpoena) and one on Teachers Federal Credit Union (TFCU Subpoena). The Gold Medal Subpoena bears a caption of a supreme court action. The TFCU Subpoena bears a caption of this family court special proceeding. Petitioner sent the subpoenas to Respondent, who stood mute upon receipt. Petitioner received responsive documents to the TFCU Subpoena and sent copies thereof to Respondent approximately three days later. Respondent stood mute for another three weeks before filing the motion brought by order to show cause.
The motion sought relief because the Petitioner issued a judicial subpoena duces tecum seeking disclosure (see, CPLR art 31) in a special proceeding without leave of court as required by the black letter language of CPLR 408 which is incorporated into the Family Court Act ( Family Court Act § 165 ). Insofar as relevant here, the Order directed Petitioner to pay attorneys fees of $2,000.00 to Respondent in respect of the motion practice related to the subpoenas. Although paragraph ‘f’ of the order to show cause sets forth a request for sanctions ( 22 NYCRR 130-1.1 ) in the amount of the attorneys fees Respondent incurred, the Order cites only to the discretionary authority of the family court to award attorneys fees ( Family Court Act § 438 [a] ). Thus, the attorneys fees award of $2,000.00 was discretionary, and the Support Magistrate did not find the Petitioner's conduct frivolous.
The Petitioner objects, as limited by the Objections, to the award of attorney fees.
"The Court (Support Magistrate) notes a trial on the underlying action commenced on June 8 and continued on July 29" (Order on Motion at 1). Those dates appear to be in 2021. Petitioner filed the petition on July 9, 2020, one day shy of eleven months before the trial began. These parties’ child support disagreement remains unresolved, and the next scheduled trial date is December 20, 2021 (Guide to NY Evid rule 2.01, Judicial Notice).
I. Implicit Conversion of the Motion for Sanctions to a Motion Addressed to the Court's Discretion for Attorney Fees
The general language in the order to show cause is sufficient notice to the Petitioner that the Court or the Respondent might seek to convert the sanctions application to a discretionary attorneys fees application ( Matter of Perso v Perso , NYLJ, Feb. 8, 2019 at 42 [Family Ct Suffolk County 2019] [Hensley, AJFC]). The implicit conversion demonstrates that the Support Magistrate found the Petitioner's lawyer's conduct non-frivolous. This Court honors that finding by not finding Respondent's lawyer's conduct as set forth below frivolous even though both attorneys appear to have acted in direct contravention of controlling legal authority in this case which has already dragged out for over 17 months.
II. Final Order
An aggrieved party may file objections to a final order of a support magistrate ( Family Court Act § 439 [e] ). "The concept of finality is a complex one that cannot be exhaustively defined in a single phrase, sentence or writing (see generally , Cohen and Karger, Powers of the New York Court of Appeals § 9, at 39; Scheinkman, The Civil Jurisdiction of the New York Court of Appeals: The Rule and Role of Finality, 54 St John's L Rev 443). Nonetheless, a fair working definition of the concept can be stated as follows: a "final" order or judgment is one that disposes of all of the causes of action between the parties in the action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters (see generally, Cohen and Karger, op. cit., §§ 10, 11) ( Burke v Crosson , 85 NY2d 10, 15, 623 NYS2d 524, 527 [1995] ).
Merely because an order resolves a motion, the order is not necessarily a final order ( Matter of Tobing v May , 168 AD3d 861, 92 NYS3d 299 [2d Dept 2019] [denial of a motion to dismiss is not a final order]). Moreover, one or more of the parties might differently evaluate the appellate process regarding a motion of which objections are a part (e.g. , Matter of Musarra v Musarra , 28 AD3d 668, 814 NYS2d 657 [2d Dept 2006] ) after the merits of the proceeding are resolved. Although the portion of the Order to which Objections were filed has less to do with the substantive outcome of the special proceeding than does the Order's impact on Petitioner's ability to secure information about Respondent's financial condition, the question of what constitutes a final order should be taken not on a segmented or compartmentalized view but on an overall view of the order at issue. In other words, a party's structuring of objections should not drive the analysis of whether an order is final or interlocutory.
Here, because the Petitioner could have objected to more of the order (this Court expressing no opinion on the likely outcome of those as-of-now hypothetical objections) and because those other aspects of the order would have been brought up by objections to a final order of support or dismissal (cf. CPLR 5501 ), the Order is an interlocutory order.
III. Irreparable Harm
Anything not a "final order" is an interlocutory order ( Matter of Fischer v Fritzch , 35 AD3d 1146, 827 NYS2d 732 [3d Dept 2006] ) and, therefore, not subject to the objection process unless the aggrieved party demonstrates irreparable harm ( Matter of Tobing v May , 168 AD3d 861, 92 NYS3d 299 [2d Dept 2019] ). Where the harm is financial and the burden of continuing the special proceeding with the attendant expenses related to litigation, the harm is not irreparable ( Id. ). However, if the family court acts without power and authority irreparable harm arises ( Matter of McGrath v McGrath , 166 Misc 2d 512, 633 NYS2d 694 [Erie County Family Ct 1995]cited by Matter of Tobing v May , 168 AD3d 861, 92 NYS3d 299 [2d Dept 2019] ).
A. Power and Authority of the Court
A party seeking an award of attorneys fees must prove compliance with 22 NYCRR 1400.2 and 22 NYCRR 1400.3 (Matrimonial Rules) in the party's moving papers ( Gottleib v Gottleib , 101 AD3d 678, 957 NYS2d 132 [2d Dept 2012] ). Matter of Tarpey v Tarpey (163 AD3d 687, 81 NYS3d 426 [2d Dept 2018] ) reversed the denial of objections to an award of attorneys fees. In Tarpey , like in Gottleib , the movant's motion papers did not show substantial compliance with the long-ago enacted regulations, and the Second Department vacated the attorneys fee award.
The absence of essential (required) allegations of facts makes the application for attorneys fees in a matrimonial matter subject to dismissal for failure to state a cause of action ( CPLR 3211 [a] [7] ; Swergold v Weinrib , 193 AD3d 1094, 147 NYS3d 112 [2d Dept 2011] ). That means that the pleadings, on their face, failed to invoke the subject matter jurisdiction of the court. In Swergold , the attorney's motion papers did not establish compliance with the Matrimonial Rules.
Here, the movant's papers are bereft of evidence that the movant's attorney substantially complied with the black letter language of 22 NYCRR 1400.2 which relates to one issue—providing a client with a verbatim copy of the statement of client's rights and responsibilities and obtaining a signed "acknowledgment of receipt from the client" ( 22 NYCRR 1400.2 ). Respondent's attorney included in the papers in support of the motion brought by order to show cause an affirmation from that attorney that contains a mixture of allegations of fact and positions and arguments of law (but see, 22 NYCRR 205.11 [b]). "Annexed [to the affirmation of Respondent's attorney] as Exhibit "D" is a copy of Respondent's retainer agreement with this firm for this matter" (Affirmation of Respondent's attorney dated September 17, 2021 [emphasis in original] [hereafter, Atty Aff]).
The last paragraph of the retainer agreement sets forth:
Kindly acknowledge that you have been provided with and have read the Statement of Client's Rights and Responsibilities, a copy of which is attached to this Retainer Agreement. Indicate your understanding and acceptance of the above by signing the letter below where indicated. We look forward to being of service to you in connection with this matter.
(Atty Aff, Exhibit D at 5). The client's signature is absent from the retainer agreement. Moreover, even if the client signed the retainer agreement which, for purposes of this motion, the attorney admits that the Respondent did not, the attorney promised to attach the specific statement of client's rights and responsibilities that someone (and not necessarily the attorney, based on the passive voice construction of the first quoted sentence) previously provided to the client. The attachment is absent from the retainer agreement. Exhibit D is five pages and has no attachments to the retainer agreement.
22 NYCRR 1400.3 requires that a retainer agreement in a special proceeding like this "shall be signed by both client and attorney." The attorney admits, for purposes of this motion, that the Respondent did not sign the retainer agreement.
The Respondent executed an affidavit in support of the motion brought by order to show cause. Respondent adopted the contents of the attorney's affirmation (Affidavit of Respondent sworn to on September 17, 2021, ¶ 2). Therefore, the Respondent also admits that the Respondent did not sign the retainer agreement and did not execute a written acknowledgment of when the attorney furnished, if at all, the statement of client's rights and responsibilities.
The billing statement (Atty Aff Exhibit E) does not show that the attorney carefully reviewed the Respondent's affidavit with the Respondent, or even discussed the subpoenas, affidavit, or motion practice with the client. The only client contact between Respondent and Respondent's attorney, according to the billing statement, was a telephone call on September 17, 2021 for one quarter of an hour for which the attorney did not charge Respondent (Atty Aff Exhibit E; see also , Atty Aff ¶ 13).
Equally absent from the motion papers is anything to indicate that the Respondent's attorney sent the affirmation to Respondent or otherwise discussed the affirmation.
This Court does not find that the no charge telephone call on September 17, 2021 for one quarter of an hour constituted a thorough review of the multi-page, multi-exhibit attorney affirmation and the client affidavit, particularly because Respondent's attorney would have had to explain that the documents attached to the affirmation, especially Exhibit D, preclude Respondent's attorney from being paid for the motion (see, Rules of Professional Conduct [ 22 NYCRR 1200.0 ] rules 1.5 [a], 1.5 [d] [5] [ii]; Judiciary Law § 474 ).
Despite the absence of conversation, Respondent adopted the attorney's affirmation and is bound by it.
This Court acknowledges the irony of Respondent bringing a motion criticizing Petitioner's counsel for serving a subpoena for discovery (as opposed to for trial) without permission of the Court, an action that the law obviously prohibits ( CPLR 408 ) when Respondent has proceeded equally outside the obvious dictates of the controlling law ( 22 NYCRR 1400.2 and 1400.3 ).
The fee receipt set forth on the billing statement is dated September 15, 2021, but the billing statement was issued on September 17, 2021. The motion papers offer no explanation of how the Respondent paid the precise amount — to the penny -- of the attorney fee related to the subpoenas two days ahead of when the attorney completed the work and then issued the billing statement. In other words, after Respondent paid the full amount, the law firm conducted other work. The motion papers lack an explanation of this degree of precision forecasting.
In contrast to Perso , here this Court does not remand the issues to the Support Magistrate. Here, unlike Perso , this special proceeding has dragged on for over 17 months with no end in sight, and the parties undoubtedly want resolution not further litigation when the necessary facts to resolve the Objections are fully available to this Court. Also, here, unlike Perso , the Order is not a final order. Part of the final order requirement is to avoid sidetracking litigation, so this Court making its own order and findings prevents (further) sidetracking of the litigation. Thus, this Court makes the findings of fact set forth in this Decision ( Family Court Act § 439 [e] [ii] ) and concludes that the moving papers Respondent filed do not, prima facie, prove substantial compliance — and, in fact, demonstrate non-compliance — with either of 22 NYCRR 1400.2 or 22 NYCRR 1400.3. Therefore, the family court is without jurisdiction to award attorney fees on Respondent's motion. Because the Order arose without the proper, prima facie, invocation of the court's jurisdiction, irreparable harm exists.
B. Public Harm — Matrimonial Rules
The Matrimonial Rules, amended from time to time after their 1993 adoption, are designed "to address abuses in the practice of matrimonial law and to protect the public" ( Julien v Machson , 245 AD2d 122, 122, 666 NYS 147, 148 [1st Dept 1997]quoted in Gahagan v Gahagan , 51 AD3d 863, 859 NYS2d 218 [2d Dept 2008] ; see also , Greco v Greco , 161 AD3d 950, 77 NYS3d 160 [2d Dept 2018] ). Given these purposes of the Matrimonial Rules, this Court holds that the irreparable harm exception to the final order requirement applies when a court confronts the sorts of abuses and harms that triggered the enactment of the Matrimonial Rules over one-quarter century ago.
The judiciary must act swiftly to correct actions that contravene the public interest. Given the binding appellate precedent about the Matrimonial Rules purposes of protecting the public, the irreparable harm doctrine must apply to protect the public interest, rather than waiting to invoke the long-established public protecting rules.
C. Public Harm — Rules of Professional Conduct
Similarly, the Rules of Professional Conduct are designed to protect against "abuse of the adversary system and resulting harm to the public at large" ( Greene v Greene , 47 NY2d 447, 451, 418 NYS2d 379, 381 [1979] ). When faced with questions the implicate the public interest, the Court of Appeals terms a court's conduct "egregious" if the court allows contravention of rules designed for protection of the public to persist ( Id. at 452, 418 NYS2d at 382 ). The Court of Appeals requires lower courts to prevent and eliminate threats to "the overriding public interest in the integrity of our adversary system" ( Id. at 453, 418 NYS2d at 383 ).
Although Greene is a conflict of interest case, where the result may be removal of a party's chosen lawyer, no principled reason exists to distinguish Greene from this case where the lawyer's financial interests (collecting a fee) are adverse to that of the lawyer's client who, based on this motion record, appears to have no duty to pay the fee, but might otherwise not know that, particularly where, as here, lawyer and client spent no more than fifteen minutes discussing the various documents and the entire motion.
Given the Court of Appeals precedent, the irreparable harm doctrine must apply to protect the public interest and to preserve the judiciary's integrity.
D. Harm to Reputation
Because the Order, in effect, did not find the Petitioner's attorney's conduct frivolous, and because this Court even handedly treated Respondent's attorney's conduct that was equally disallowed by controlling law, neither lawyer has a reputation interest at stake. Therefore, this Court makes no decision and expresses no opinion about whether the irreparable harm doctrine applies if a non-final order of a support magistrate carries a stigma or penalty based on attorney conduct.
IV. The Merits
Based on the analysis set forth above, on this motion, Respondent is ineligible to recover attorney fees. Thus, on the merits, the Objections are GRANTED.
As a result of the determination of ineligibility, this Court does not need to reach the obvious questions of (A) why Respondent's attorney did not call or write to Petitioner's attorney to object to the TFCU Subpoena shortly after Petitioner's attorney sent it to Respondent's attorney, (B) why Respondent's attorney did not move to quash the TFCU Subpoena when Respondent's attorney possessed every fact needed to succeed on such a motion, (C) why laches should not apply given that a colorable claim exists that Respondent's attorney did not seek immediately to correct obviously improper procedure and, instead, waited until Respondent's might seek a more punitive remedy, and/or (D) why Respondent's attorney apparently does not concede that Petitioner's attorney could have issued a trial subpoena without leave of court either to the credit union or to the Respondent.
As a result of the determination of ineligibility, this Court does not need to reach the obvious questions of (A) why Petitioner's attorney was midstream in trial before seeking disclosure, (B) why Petitioner's attorney did not seek the required court permission to conduct disclosure—especially during trial, (C) whether Petitioner's attorney's effort to have the documents produced at Petitioner's attorney's office is proper—even in conjunction with a return being made to the Clerk's office, and/or (D) why Petitioner's attorney did not issue trial subpoenas.
These issues about the reasonableness of the fees and behaviors of each of the attorneys relate the amount of the possible discretionary fee award because the conduct of the parties and positions each adopts are relevant to discretionary fee awards under Family Court Act section 438 ( Matter of Westergaard v Westergaard , 106 AD3d 926, 927, 964 NYS2d 179, 179-180 [2d Dept 2013] ). Because the Respondent is ineligible to collect fees on this motion based on the motion record that Respondent developed, this Court abstains from any further comment on what might constitute reasonable fees in a 17-month old child support case that appears not to be set for hearing on a day-to-day basis (cf. Liu v Ruiz , ––– AD3d ––––, ––– NYS3d ––––, 2021 NY Slip Op 06089 [1st Dept 2021] ).
Another point that this court need not reach but notes in case the issue arises later ( People v Abdul , 76 AD3d 563, 906 NYS2d 594 [2d Dept 2010] [Appellate Division addresses a significant issue to facilitate orderly litigation between the same parties) in this already protracted litigation is whether an attorney has the authority to issue a subpoena in the name of the court. So much of the form of subpoena where the name of the, in this case, Support Magistrate appears and the attorney affixes the attorney's signature is proper ( Family Court Act § 165 ; CPLR 2302 [a] ).
V. Conclusion
Based on the foregoing, the Objections are GRANTED, and so much of the Order that awarded attorney fees is vacated, and any amount so paid must be refunded immediately.