Opinion
11-17-2021
In the Matter of a Custody/Visitation Proceeding Article 8 of the Family Court Act M. M., Petitioner, v. A. A., Respondent.
Petitioner's counsel: Michael Fried and Samantha Cooper Respondent's counsel: Mohammad Al Saweer and Morris Fateha, Maria Coffinas and Shania Weekes
Petitioner's counsel: Michael Fried and Samantha Cooper
Respondent's counsel: Mohammad Al Saweer and Morris Fateha, Maria Coffinas and Shania Weekes
CAROLINE P. COHEN, J.
Background
Petitioner M. M. ("Petitioner") and Respondent A. A. ("Respondent," together "the parties") were married on or about April 2010. The parties have twin girls J. A. and M. A., ("the Subject Children") who were born in or about February 2014. Respondent is a physician who earns upwards of $300,000 a year. Petitioner is a stay-at-home mother who does not have an independent source of income.
Underlying Family Offense Petition
On or about March 9, 2020, Petitioner commenced the instant family offense petition by way of counsel. Therein, Petitioner sought an order of protection against Respondent and for Respondent to pay reasonable counsel fees. See Petition, dated March 6, 2020. At the first appearance, the Court issued a temporary order of protection against Respondent. The temporary order of protection excluded Respondent from the marital home and prohibited Respondent from contacting Petitioner or the Subject Children. See Temporary Order of Protection, dated March 9, 2020. On March 12, 2020, Michael Fried and Samantha Cooper (together "Petitioner's counsel") commenced the trial on the family offense petition. In the time allotted for the first day of trial, Mr. Fried gave an opening statement and did not solicit testimony. The remainder of the hearing dates were adjourned due to the COVID-19 pandemic. On May 6, 2020, May 20, 2020 and May 26, 2020, the parties and counsel conferenced the matter before the Court and engaged in settlement talks. Thereafter, Petitioner and Respondent executed a stipulation whereby they agreed to a two-year final order of protection against the Respondent; the Stipulation also set forth the terms that would be included in the final order of protection. On June 4, 2020, Petitioner and Respondent allocuted the stipulation on the record and the Court issued the final order of protection. See Stipulation, dated on or about June 4, 2020; final order of protection, dated June 4, 2020. The Petitioner's counsel reserved the right to file an application for legal fees.
Fee Motion
Petitioner's counsel brought a motion for legal fees on or about July 6, 2020, which sought legal fees in excess of $40,000 dollars pursuant to Family Court Act §842 (a) and (f). In the motion, Petitioner's counsel argued that the sought-after legal fees are reasonable because of (1) the extensive time required to bring the instant family offense petition which addressed 18 separate incidents, (2) the fact that counsel had to prepare for and commence a full evidentiary trial, regardless that ultimately the trial did not proceed past opening statements, (3) the multiple court appearances where settlement discussions took place, and (4) that the Respondent is significantly more monied than the Petitioner. See Fee Motion, dated July 6, 2020. As to the last point, counsel for Petitioner attached the parties' 2018 and 2019 joint tax returns, which showed that Respondent made approximately $376,000 in 2018 and $335,000 in 2019 as a doctor specializing in nephrology and hospital care. In contrast, the parties' 2018 and 2019 joint tax returns showed that the Petitioner listed her occupation as "housewife" and did not generate any income either year. See Id. at Exhibit G, Parties Joint Federal and New York State Tax Returns for 2018 and 2019.
On or about July 17, 2020, Respondent's attorney Maria Coffinas, Esq. opposed the motion. See Respondent's Opposition to Petitioner's Fee Motion, dated July 17, 2020. Ms. Coffinas argued that her client is not responsible for Petitioner's attorney's fees for reasons including (1) the Petitioner did not provide sufficient information regarding her finances, such as a statement of net worth, (2) the legal fees sought were excessive and (3) the Petitioner did not disclose how much she already paid her attorney. See Id. Ms. Coffinas argued that if Petitioner provided sufficient financial information, it would allegedly show that Petitioner had funds available to her. See Id. Counsel highlighted that a June 2020 Statement of Net Worth indicated that Petitioner had $50,000 in a Chase Bank Account. See Id. at Exhibit D, Petitioner's Statement of New Worth. See Id. Counsel for the Respondent did not argue that her client was the less monied spouse, or unable to pay for Petitioner's legal fees if ordered to do so. Respondent did not request permission to file a sur-reply. See Id.
Respondent was represented by Mohammad Al Saweer, Esq. and Morris Fateha, Esq. through in or about July 2020; thereafter he was represented by Maria Coffinas, Esq. Respondent was represented by both Maria Coffinas, Esq. and Shania Weekes, Esq. in the fee hearing. Michael Fried, Esq. and Samantha Cooper, Esq. represented Petitioner in the entirety of the proceeding.
Thereafter, Petitioner replied to Respondent's opposition and argued that in a family offense proceeding, there is no requirement that the Petitioner produce either a net worth statement or a financial disclosure affidavit, in contrast to a divorce or support proceeding where that information is required. See Petitioner's Reply to Respondent's Opposition, dated July 27, 2021. Petitioner's counsel also argued that the fees sought were not excessive, based on, in part, (1) the alleged complexity of the case, and (2) the extensive time required to draft a petition and prepare for a hearing. See Id. Counsel for Petitioner included invoices which reflected Petitioner's payments, which totaled more than $40,000 through July 2020.
The invoices were inclusive of fees accrued in the family offense and divorce proceeding.
The Court granted the motion and held that Respondent is liable for all legal fees Petitioner expended to obtain a final order of protection against Respondent. See Order, dated August 11, 2020. The Court ordered a full evidentiary hearing to determine the reasonable value of the legal fees charged by Petitioner's counsel. See Id.
Fee Hearing
The hearing took place virtually because of the ongoing COVID 19 pandemic on August 3, 2021 and August 4, 2021. All counsel and Parties appeared at the hearing. On consent, Petitioner's counsel testified on direct examination through previously submitted affirmations. See Testimonial Affirmations, annexed as Petitioner's Exhibits 1 and 2. Thereafter, Petitioner's counsel reviewed what exhibits were entered into evidence on consent, and what exhibits Ms. Coffinas and Shania Weekes, Esq. (together "Respondent's counsel") objected to. Ms. Coffinas cross examined Mr. Fried based on information presented in his testimonial affirmation, and afterwards Mr. Fried was redirected by Ms. Cooper. The Court finds that Mr. Fried and Ms. Cooper both testified credibly on the record.
Petitioner's counsel presented evidence that attempted to establish the value of their fees, which as of the time of the hearing amounted to $50,767.50. Petitioner's counsel argued that such substantial legal fees accrued because of (1) the substantial time it took to draft the family offense petition, which they contend was exceedingly "extensive and complex," (2) their preparation for the trial, (3) the numerous court appearances, meetings and correspondence with the Petitioner, and (4) the correspondence between Petitioner's counsel and Respondent's former and current counsel. As evidence, Petitioner's counsel presented invoices sent to Petitioner for fees accrued in the litigation of both the family offense proceeding and the divorce proceeding, and a chart which listed the fees that were exclusive to the family offense proceeding. See Invoices and Explanatory Chart, annexed as Petitioner Exhibit Z.
In response, Respondent's counsel argued that Petitioner is seeking an unreasonable amount of legal fees. Counsel attempted to limit the scope of eligible fees to only those incurred by Petitioner when actually seeking a final order of protection, as opposed to fees expended to recoup legal fees. In support, Respondent's counsel cited the Court's holding in the fee motion, which stated that Respondent is "liable for all legal fees [P]etitioner expended to obtain a final order of protection against Respondent."
Respondent's counsel further argued that Petitioner's legal fees are generally excessive, to the point of being "extreme" and "outrageous." In support of this position, Respondent's counsel compiled a list of fees which she argued were particularly excessive. See, Respondent's Exhibit II. Foremost, Respondent's counsel argued that the time it took Mr. Fried to draft the family offense petition was excessive and resulted in exorbitant legal fees, particularly since Mr. Fried is a partner in his law firm and has extensive family law experience. See Id. at p. 2. Counsel for Respondent also argued that Mr. Fried and Ms. Cooper double billed for the same tasks, such as court appearances and client meetings, which resulted in a combined hourly rate of $875. See Id. at pp. 1-2. Respondent's counsel also argued that Petitioner's counsel excessively charged for intrafirm communications. Lastly, Respondent's counsel argued that Petitioner's counsel improperly charged for (1) preparation for a trial that commenced but did not finish, (2) preparation of a petition that was not served and filed, and (3) for matters relating to access to the family home and visitation between the Subject Children and Respondent. See Id. at pp. 1, 5-7.
Respondent's counsel also argued that the Court should evaluate the parties' financial circumstances when awarding legal fees. In support of this position, Respondent's counsel cites Christy v. Christy, 182 A.D.3d 596, 596 (A.D.2d Dep't 2020). Respondent's counsel argued that while her client is the more monied spouse, the Petitioner is not indigent. Based on the belief and understanding that Petitioner has some, albeit fewer, financial resources, the Court should not require the Respondent to pay the entirety of Petitioner's legal fees.
In response to these assertions, Petitioner's counsel said that it took so long to draft the family offense petition because it was exceedingly factually complex. However, Petitioner's counsel also stated that he did not prepare "many" family offense petition in the past. Mr. Fried further testified that when both he and Ms. Cooper bill for the same item, for instance a court appearance, they do so because each provides a different service. Petitioner's counsel responded to the allegations of inappropriate billing for intra-firm communications by describing their firm as a collaborative workplace. Mr. Fried testified that per the retainer, the Firm properly charged for internal communications, such as internal office meetings. See Petitioner Exhibit A, Retainer, p. 3. Mr. Fried further explained that the per the retainer agreement, Petitioner retained "the [f]irm" as attorneys, not him specifically. See Id. at pp. 1-2. Ms. Cooper further testified that the Firm is defined as consisting of attorneys, legal assistants and law clerks. See Id. Petitioner's counsel also stated that the fees charged in connection with arranging visitation between the Subject Children and Respondent were generated because Respondent himself insisted on addressing the issue in the instant proceeding. Lastly, Petitioner's counsel argued that the Court evaluated the parties' ability to pay when deciding whether to grant the fee motion. Petitioner's counsel further argued that the parties' finances should not be evaluated for a second time when determining the "reasonable value" of the legal fees.
Notably, the word "attorneys" in the retainer is plural.
Legal Analysis:
Family Court Act § 842(f) states that if an order of protection is either obtained or enforced, the wrongdoer may be required "to pay the reasonable counsel fees and disbursements involved in obtaining or enforcing the order of the person who is protected by such order." See Family Court Act §842(f).
The Family Court Act is silent as to whether attorneys can recoup additional fees that are expended while attempting to recover underlying counsel fees, and there is a very limited body of case law which addresses "fees for fees" in family offense proceedings. However, the New York State Court of Appeals stated that in divorce proceedings, which are governed by the Domestic Relations Law and is also silent on this issue, parties can recoup "fees for fees." The Court of Appeals made this determination considering "the unswerving direction of the decisional law over the last century and a half," which seeks "to further the objectives of litigational parity, and to prevent the more affluent spouse from wearing down or financially punishing the opposition." O'Shea v. O'Shea, 689 N.Y.S.2d 8, 12 (1999); see also G.C. v. K.C., 969 N.Y.S.2d 803, 803 (Sup. Ct. 2013). Such goals are directly in concert with the very purpose of Family Court Act §842(f), which, logic holds, is to enable a party to pursue an order of protection regardless of financial status. The Appellate Division, Second Department also awarded "fees for fees" in divorce proceedings; the Appellate Division held that doing so "was not an improvident exercise of discretion," and that the moving party was entitled to a hearing to ascertain the reasonable value of the fees. See Brancoveanu v. Brancoveanu, 177 A.D.2d 614, 614 (A.D.2d Dep't 1991); White v. Gordon, 258 A.D.2d 519, 519 (A.D.2d Dep't 1999).
The Family Court enjoys considerable discretion when determining whether to award counsel fees and determining their reasonable value. See Christy v. Christy, 182 A.D.3d at 596, citing Grald v. Grald, 33 A.D.3d 922, 923 (A.D.2d Dep't 2006). Parties' respective financial positions are a threshold consideration in determining whether to award attorney's fees. See Id at 597. Other factors to be considered when determining whether to award attorney's fees are "the nature and extent of the services rendered, the complexity of the issues involved, and counsel's experience, ability, and reputation." Id.. Thereafter, the court must determine the "reasonable" value of the services provided through an evidentiary hearing. See Rogers v. Rogers, 161 A.D.2d 766, 767 (A.D.2d Dep't 1990). The court can consider the same factors used in determining whether legal fees should be awarded in the first place when assessing their reasonable value and total amount to be paid. See Grald v. Grald, 33 A.D.3d at 923. In utilizing its discretion regarding the total amount of legal fees to be paid, the court should assess facts, including the parties' finances, relative to each other. For instance, in a fee hearing involving a more monied Respondent father, the Appellate Division "[w]hile 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." Matter of Sylwia S. v Peter W, 20 N.Y.S.3d 294, 5 (Fam. Ct. Queens Co. 2015). Accordingly, "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." See Id.
Application:
Upon consideration of the pertinent factors, this Court awards to the Petitioner the reasonable value of her legal fees.
The Court determines the reasonable value of the legal services rendered in the family offense proceeding by evaluating factors enumerated in case law, including the scope of the services rendered, the complexity of facts and legal issues, and counsel's experience. See Grald v. Grald, 33 A.D.3d at 923.
Foremost, the Court's holding in the fee motion is limited to the pursuit of fees accrued in connection with the instant family offense petition, dated on or about March 9, 2020. Petitioner seeks fees in connection with drafting an amended family offense petitioner that was not filed. The Court does not award fees in connection with an amended petition that was not filed.
Mr. Fried testified that despite being an experienced family law attorney and a partner in his firm, the preparation of the family offense petition took many hours and resulted in a cost of approximately $3,800 to Petitioner. Mr. Fried explained that the instant petition was not "run of the mill" as it was so factually complex. See Transcript, August 3, 2021, p. 9; August 4, 2021, pp. 26-27. However, while the allegations included in the petition were many and varied, they were not unusually complicated. Accordingly, the Court awards Petitioner only partial fees for the preparation of the family offense petition.
Mr. Fried appeared before the Court approximately eight times since the inception of the case, not including the fee hearing. Ms. Cooper appeared at approximately five of those eight appearances. Mr. Fried testified that he charges $525 an hour for his services, and Ms. Cooper testified that she charges $315 an hour for her services, for a combined hourly rate of $875. Ms. Cooper did not provide sufficient explanation through her testimonial affidavit or testimony at the fee hearing regarding her specific and distinct role at each court appearance. Accordingly, the Court is uncertain as to how Ms. Cooper's court appearances moved the case forward, as Mr. Fried almost exclusively spoke on behalf of Petitioner. As such, the Court does not award fees in connection with Ms. Cooper's court appearances.
Similarly, Ms. Cooper continually billed for "review[ing] e-mails" without sufficient explanation of the content or who the sender or recipient were. See Invoices and Explanatory Chart, annexed as Petitioner Exhibit Z. Accordingly, the Court is unclear what value these e-mails added to the litigation. As such, the Court does not award fees in connection with Ms. Cooper's review of e-mails.
Petitioner's counsel extensively billed for preparation for the May 6, 2020 court appearance. Mr. Fried explained that a large amount of time was dedicated to preparing for this appearance because so much time passed between conference dates. In reality, the stretch between conferences was approximately seven weeks. However, it is not unusual for two months or more to lapse between appearances. As such, the passage of seven weeks should not constitute an extensive break requiring counsel to spend an inordinate amount of time re-familiarizing themselves with this case. Accordingly, the Court awards Petitioner only partial fees for preparation of for the May 6, 2020 court appearance.
Regarding Petitioner's counsels' pursuit of "fees for fees," in the absence of clear statutory or decisional guidance, the Court looks to pertinent caselaw in divorce actions. In such proceedings, courts found that it is in the public interest and therefore permissible for parties to recoup "fees for fees."
This Court finds that, similarly, the public interest is served by allowing an aggrieved party who successfully brings a family offense petition to recoup "fees for fees." Permitting a party to pursue such fees enables that individual to fully recover all money expended while obtaining a final order of protection, as pursuing legal fees almost always entails more litigation, and therefore, more fees. Accordingly, enabling a petitioner to pursue both the underlying counsel fees and "fees for fees" levels the playing field financially in the event the respondent is the more monied party. Moreover, this may encourage other litigants to bring and fully pursue a family offense petition when that party may otherwise be deterred by the expense. The Court awards Petitioner's counsel partial "fees for fees."
Petitioner's counsel extensively billed for time spent preparing the fee motion, testimonial affidavits and for the fee hearing. For instance, Mr. Fried testified that in preparation for the fee hearing, counsel combed over the finer details of the case, including "trac[ing] through and recreat[ing] what we did day by day." See, Transcript, August 4, 2021, p. 29. Clearly, Petitioner's counsel needed to familiarize themselves with the time spent on this proceeding to successfully argue that Petitioner should be awarded fees. However, billing for time spent reviewing the finer details of the proceeding, including re-reviewing supporting evidence, is excessive. Accordingly, the Court awards Petitioner only partial fees for preparation the motion, testimonial affidavits and for the fee hearing.
In contrast, Mr. Fried and Ms. Cooper both appropriately billed for working on the same projects when they each described their discrete tasks. For instance, Petitioner's counsel both billed for drafting the family offense petition, with the explanation that Mr. Fried wrote the first draft and Ms. Cooper revised the same. Such billing is permissible.
Petitioner's counsel also appropriately billed for intra-firm communications. The retainer agreement specifically stated that Petitioner engaged the entire firm to represent her in this matter, and intra-firm communications are often critical for the comprehensive and competent representation of a client. Accordingly, such billing is proper. The Court also notes that billing for intra-firm communications does not appear to be excessive.
Moreover, it was appropriate for Petitioner's counsel to bill for time spent making accommodations for the Respondent to retrieve his belongings from the family home in light of the restrictions imparted by the order of protection. It was similarly appropriate for Petitioner's counsel to bill for arranging visitation between the Respondent and the Subject Children, as that was done at Respondent's counsel's request.
Lastly, the Court also analyzes each parties' financial wherewithal to help determine the reasonableness of fees to be allocated. There is a significant disparity between the Petitioner and Respondent's economic standing. Pursuant to Respondent's tax returns, he is financially sound, and notably, Respondent's counsel did not argue in her responsive papers that he was unable to pay petitioner's legal fees. Respondent's counsel instead argued that Petitioner could afford to pay her own legal fees. While the Court does find that Respondent is responsible for Petitioner's legal fees, Petitioner is not destitute and is not unable to afford to pay some of the fees charged by her attorneys.
Conclusion:
After consideration of the pertinent factors an award of counsel fees to the Petitioner is warranted.
At the time of trial, the Petitioner amassed $50,767.50 in attorney's fees. Based on the Court's analysis of each of the fees, pertinent statutes and case law, the Court orders that Respondent pay Petitioner $34,527.58 in legal fees.
The Court deducts the following fees, totaling $16,239.92 from the total being sought by Petitioner:
$1,540 for drafting an amended petition that was not filed.
$2,835 for Ms. Cooper's court appearances.
$315 for Ms. Cooper's review of e-mails.
$814 for preparation for the May 6, 2020 court appearance.
$3,733 for preparation for the fee motion.
$4,806.67 for preparation for Petitioner's counsels' testimonial affirmations.
$2,196.25 for preparation for the fee hearing.
Fees are to be paid by December 31, 2022. The fees are to be paid in ten monthly installments of $2,877.29, totaling $28,772.90, and two monthly installments of $2,877.34, totaling $5,754.68. Together, all payments together equal $34,527.58