Opinion
6059-07.
Decided August 19, 2010.
David M. Rossoff, Esq., Law Offices of Carton Rosoff, P.C., White Plains, NY, Attorney for Plaintiff.
William T. Burke, Esq., O'Neil Burke, LLP, Poughkeepsie, NY, Attorney for Defendant.
On June 15, 2010, Plaintiff filed a Notice of Motion seeking an award of attorney's fees in this action for divorce. Plaintiff requests that the $13,000.00 currently held in an escrow account be released to Plaintiff's counsel to pay his fees and seeks an order requiring Defendant to pay an additional $10,000.00 of Plaintiff's legal fees. Plaintiff also requests that Defendant be ordered to pay $4,200.00 as reimbursement of child care and medical expenses, an amount Defendant previously had stipulated to pay but which amount remains unpaid to date.
This money is the remainder of funds from the sale of the marital home.
Plaintiff's requested relief in her motion is inconsistent throughout the affidavit that she submitted in support of her motion. See Affidavit of Sharon Puera, dated June 14, 2010 (hereinafter "Plaintiff Aff."
Pursuant to ¶ 7 of her affidavit, Plaintiff seeks "that Defendant pay $23,000, [in legal fees] . . . (emphasis added)." Pursuant to ¶ 10 of the affidavit, Plaintiff seeks to have the entire remaining escrow balance of $13,000.00 awarded to her to pay legal fees. In ¶ 15, Plaintiff asks that the $13,000.00 in escrow money be used to pay legal fees and that an additional $10,000.00 be assessed against Defendant (emphasis added). In the "Wherefore" paragraph of her affidavit, Plaintiff again asks the Court to issue an award of $23,000.00 in legal fees as against Defendant.
A mathmatical calculation of the numbers reveals that the relief sought by Plaintiff in the "Wherefore" clause of her affidavit is inconsistent with her request in some of the other paragraphs in her affidavit. However, the Court will deem Plaintiff's request to be that which is consistent with the parties' stipulated settlement, to wit, "that the parties will comply with whatever order is issued by the Court upon submission of papers" with respect to "the distribution and allocation of the $ 13,000.00 in escrow funds" . . . and that the "parties agree to be bound by whatever decision of the Court with respect to attorney's fees sought by plaintiff's attorney. " See Transcript of Proceeding, May 18, 2010, at pp. 4-5 lines 23-25 and 1-3; Tr. p. 17, lines15-18 (hereinafter "Tr.").
Thus, the Court deems Plaintiff's request to be: (1) that the Court determine the appropriate allocation/distribution of the remaining escrow funds; and (2) that the Court equally allocate the escrow funds between the parties; and (3) that the Court issue an attorney's fees award of $16,500.00 against the Defendant, $6,500.00 of which is Defendant's share of escrow money to be released directly to Plaintiff's attorney to pay legal fees, and $10,000.00 of which should be paid to Plaintiff for legal fees she already has paid; and (4) an order that the other $6,500.00 in the escrow fund that should be allocated to Plaintiff be released directly to Plaintiff's attorney also for payment of his fees.
In her affidavit in support of her motion, Plaintiff has averred that she accrued $46,025.00 in total legal fees as well as $366.00 in costs related to the matrimonial proceeding. Plaintiff Aff. at ¶ 7. Plaintiff also has averred that $13,284.00 in legal fees incurred remains outstanding to date. Plaintiff also has averred that she paid the other portion of her legal fees via credit card and that she now has amassed significant credit card debt — in excess of $40,000 — in large part due to payment of these legal fees. Plaintiff Aff. at ¶¶ 6 and 8.
On July 19, 2010, Defendant filed an opposition to Plaintiff's motion via Affidavit of Daniel Puera, sworn to July 13, 2010 (hereafter "Daniel Puera Aff."). Defendant contends that the fees sought by Plaintiff are unfair and unreasonable. Defendant argues that he has voluntarily paid joint marital debt, totaling $46,472.00 and remains liable, as guarantor, for debts accrued from Plaintiff's wife's failed business. Additionally, Defendant contends that an examination of Plaintiff's attorney's bills reveals that the monies sought to be recovered relate to matters other than the action for divorce; Defendant specifically points to work performed by Plaintiff's counsel that related to the family offense petitions filed by Plaintiff and custody issues in Family Court. Defendant argues that an award of payment of fees related to this work would be improper. Defendant asserted no opposition to Plaintiff's request for the $4200.00 for child care and medical expenses.
On July 26, 2010, Plaintiff filed a Reply Affirmation of David M. Rosoff, Esq. in further support of Plaintiff's motion.
HISTORY OF PROCEEDINGS
On May 18, 2010, the parties appeared before this Court and, represented by counsel, agreed to stipulate to a settlement of the matter which was set forth on the record; the stipulation is to be incorporated, but not merged, into the parties' forthcoming judgment of divorce.
The stipulation of settlement provided, among other things, that Defendant consented to the granting of the divorce to Plaintiff on the grounds of constructive abandonment. See Tr. at pp. 3-4. The parties also agreed as to their rights with respect to certain real and personal property and how pension rights would be determined. Id. at pp. 4-6. With respect to marital debt, the parties agreed that the marital debt had been satisfied and that neither would make any claim against the other with respect to the marital debt "or any offsets." Id. at p. 6, lines 8 — 11. The parties also stipulated that Defendant would pay $4,200.00 in child care and medical expenses to Plaintiff in compliance with a prior family court order, upon Defendant's confirmation of these expenses. Id. at pp. 6-7. If the child care and medical providers required Plaintiff's authorization before they would communicate with Defendant, Plaintiff agreed to sign such an authorization, at Defendant's request. Id.
Finally, as part of the stipulated settlement, the parties agreed that the distribution and allocation of $13,000.00 from the sale of the marital home, currently held in escrow by Plaintiff's attorney, would be determined by the Court in conjunction with an application by Plaintiff for payment of her counsel fees.
CONCLUSIONS OF LAW
For the reasons discussed below, and having considered the equities and circumstances of this case, the parties' respective financial positions, and the fees requested, the Court finds that Plaintiff is entitled to an award of counsel fees as against Defendant in this matter and that the amount requested is reasonable. Benzaken v. Benzaken , 21 AD3d 391 , 392, 799 NYS2d 579, 580 (2nd Dept 2005).Turning first to the allocation and distribution of the $13,000.00 remaining in the escrow account from the sale of the marital home, the Court finds that these monies should be shared equally between the parties. Equitable distribution law requires that "marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties." DRL 236, Part B (5). Defendant admits that the marital home was the "main asset of the parties," Daniel Puera Aff., p. 1, ¶ 5, and does not dispute that the proceeds should be divided equally between the parties. Although Plaintiff appears to equivocate about whether or if the escrow should be distributed equally or all should go to her ( see e.g. Plaintiff's Aff. at ¶¶ 7, 10 and 15), the Court finds that the home was a marital asset and that, given the facts of this case, its proceeds should be equally shared. Meza v. Meza, 294 AD2d 414, 415 (2nd Dept. 2002) (marital assets split 50/50 since division should be as equal as possible in marriage of long duration, where each party made equal contributions to the marriage); Perri v. Perri, 97 AD2d 399, 400 (2nd Dept. 1983).
Indeed, in a Joint Statement of Proposed Disposition, dated May 10, 2010, Defendant proposed an equal division of the proceeds. See Joint Statement, ¶ 2.
As noted below, with respect to the distribution of such escrow funds and, for the reasons set forth further herein, the Court grants Plaintiff's counsel permission to withdraw the entire remaining amount of $13,000.00 in escrow — both Plaintiff's share and Defendant's share — to be used toward payment of legal fees incurred by Plaintiff.
Domestic Relations Law Section § 237(a) provides that "[i]n any action or proceeding brought . . . for a divorce . . . the court may direct either spouse . . . to pay such sum or sums of money directly to the attorney . . . as, in the court's discretion, justice requires." Domestic Relations Law § 237 is designed to redress the economic disparity between the monied spouse and the non-monied spouse. O'Shea v. O'Shea, 93 NY2d 187, 190, 711 NE2d 193, 195 (1999).
The award of attorney's fees is within the sound discretion of this Court as the Court is in the best position to judge the factors integral to determining counsel fees, such as the time, effort, and skill required. Benzaken, 21 AD3d at 392. In determining whether to award counsel fees, the Court must evaluate the respective financial circumstances of the parties and value of the services rendered. DeCabrera v. DeCabrera-Rosete, 70 NY2d 879, 881, 518 NE2d 1168, 1169 (1987); Prichep v. Prichep , 52 AD3d 61 , 63 (2nd Dept. 2008). Other factors the Court may consider are the respective merits of each party's positions, and whether a party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation. Prichep, 52 AD3d at 63.
In this case, Defendant now earns significantly more than Plaintiff. Defendant's adjusted gross income is $65,000.00, while Plaintiff's is only $17,000.00. Plaintiff contends that she currently pays many of her bills using credit cards, including legal fees, and that she has amassed a credit card debt in excess of $40,000.00, due mainly to such legal fees. Plaintiff further contends that her current financial position is directly related to Defendant's threats to her safety, which necessitated that she leave her prior, $48,000.00-a-year job and move to a confidential location. Defendant does not refute any of these contentions.
In support of her application for payment of attorney's fees, Plaintiff has provided a detailed account of attorney's fees and costs, totaling over $40,000.00. The hourly rate for plaintiff's counsel is consistent with that of an attorney with his level of experience and expertise. The invoices show that over $20,000.00 of the total fees incurred were for work performed in the matrimonial proceeding itself, while another $2,450.00 relates to advice given to Plaintiff with respect to the criminal charges against Defendant in the family offense matter, in which Plaintiff was the complainant.
The Affirmation of David M. Rosoff, Esq. in Support of the Motion states that $46,025.00 has been billed to date, but the bills submitted to this Court on the motion totaled $40,600.00.
Additional legal fees incurred by Plaintiff relate to a paternity defense raised by Defendant in a child support action in which Defendant alleged that the child at issue in this matrimonial proceeding was not his. The allegation turned out to be false. The Court finds that the legal services provided to Plaintiff in connection with Defendant's criminal matter and Defendant's paternity contentions in a child support proceeding are inextricably intertwined with services performed by Plaintiff's counsel pertaining to the matrimonial proceeding. Moreover, the fact that such proceedings occurred contemporaneously with this matrimonial proceeding required Plaintiff to obtain additional legal services from her attorney — in those proceedings as well as this one — so that she could proceed properly in this action.
In light of the financial circumstances of the parties, the inter-related nature of Defendant's criminal actions and his claim disputing paternity of the child of the marriage with the issues in this proceeding and the fact the Court finds that Plaintiff already would be entitled to one half of the total funds in escrow that she is seeking to have released to pay the remainder of her total legal fees of over $40,000.00, an award of the requested amount of payment of Plaintiff's attorney's fees — $23,000.00 — is warranted. Benzaken, 21 AD3d at 392; Prichep, 52 AD3d at 63.
The Court notes that this $23,000.00 award is comprised of $16,500.00 as against Defendant — Defendant's $6,500.00 share of the escrow to be paid to Plaintiff's counsel, plus $10,000.00 which Defendant is to pay to Plaintiff. (The other $6,500.00 which comprises the award of $23,000.00 in attorney's fees is the other half of the escrow funds — $6,500.00 which is Plaintiff's share and which also will be paid directly to Plantiff's counsel from escrow.)
Defendant's contention that attorney's fees should not be awarded to Plaintiff are unpersuasive. First, Defendant claims that "virtually all" of the attorney's fees which Plaintiff seeks to recover relate to matters outside the divorce action — a claim belied by the facts. See Daniel Puera Aff., Para. 9. As stated above, over $20,000.00 of legal fees were incurred directly in the divorce action.
Next, as noted above, there is no merit to Defendant's contention that Plaintiff's request for counsel fees incurred outside of the matrimonial action should not be paid. Any bill for fees by Plaintiff's attorney for services that were not directly incurred in this action itself was for fees incurred for legal services on issues interwoven with the allegations in this proceeding, including issues of child support, custody, and family offense matters. As such, an award of counsel fees for these matters is appropriate. Susan W. v. Martin W., 89 Misc 2d 681, 695 (Sup. Ct., Kings Co. 1977) (award encompasses not only direct legal services but also incidental relief); Ludovico v. Ludovico, 51 AD3d 731, 732 (2nd Dept. 2008) (child support); D'Alessandro v. O'Brien, 248 AD2d 468, 468 (2nd Dept. 1998) (child custody).
Defendant's contention that the Court should consider the fact that Defendant took on additional marital debt in determining Defendant's liability for Plaintiff's legal fees is misplaced. The debt to which Defendant refers is $46,472.00 in credit card debt, which Defendant contends he paid off when he refinanced real property he separately owned. However, the Stipulation of Settlement between the parties is clear: "With respect to marital debt, the marital debt has been satisfied . . . Neither party makes any claim with respect to the marital debt or any offsets." See Tr. at p. 6, lines 8-11. Defendant already has received consideration in exchange for his agreement to forego a claim or offset for absorbing such debt. Accordingly, such a factor is not an appropriate consideration for the Court. Curley v. Giltrop, 68 NY2d 651, 496 NE2d 224, 226 (1986) (defendant received bargained for consideration in divorce; could not seek retirement program death benefits or life insurance proceeds bargained away).
Finally, Defendant's contention that he expects to be liable for the $60,000.00 of his wife's business debt when Plaintiff subsequently files for bankruptcy also is unavailing. First, Plaintiff is as liable as Defendant for the business debt. Second, the Court cannot speculate about whether Plaintiff will file for bankruptcy and, if so, whether Plaintiff's share of that debt will be discharged. Such speculative concerns cannot be considered by the Court. Wacholder v. Wacholder, 188 AD2d 130, 138 (3rd Dept. 1993) (tax treatment of tax sale too speculative to be considered by trial judge in dividing marital assets); Berg v. Berg , 20 Misc 3d 1142A, 1142A (Sup. Ct., Kings Co. 2008) (speculative claim fails); F.M.C. v. F.A.C. , 12 Misc 3d 1169A, 1169A (Sup. Ct., Nassau Co. 2006) (trial court cannot set values with speculation).
The Court also notes that Plaintiff also has incurred considerable debt due to the necessity that she leave her previous employment and now has over $40,000.00 in credit card debt, due, in large part, to the payment of her legal fees.
Accordingly, Plaintiff's request for attorney's fees is granted. The Court finds Defendant liable in the amount of $16,500.00 in Plaintiff's legal fees; $6,500.00 of which will be paid to Plaintiff's counsel from Defendant's share of the escrow account and $10,000.00 which Defendant will pay directly to Plaintiff. In addition, pursuant to Plaintiff's request, her share of the escrow account — $6,500.00 — also shall be released to Plaintiff's counsel for payment of legal fees. See Plaintiff Aff. at ¶¶ 10 and 15 and the "Wherefore" clause.
Plaintiff's request that Defendant be ordered to pay her $4,200.00 to reimburse her for child care and medical expenses also is granted. Defendant does not dispute that he owes this amount. See Daniel Puera Aff., p. 1, ¶ 2 (no mention of request for an order that Defendant pay the $4,200.00).
Even if Defendant had opposed Plaintiff's application for an order directing Defendant to pay these expenses, such opposition would have failed. Defendant agreed to pay such expenses in the parties' stipulated agreement. Tr. at pp. 6-7. There is no showing that such expenses are not reasonable and there is no contention that the expenditures were not in fact incurred by Plaintiff. Therefore, the Court orders Defendant to pay the $4,200.00 to Plaintiff with ten days.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's counsel David M. Rosoff, Esq., is granted permission to withdraw the entire $13,000.00 currently being held in the escrow fund for payment of his fees; and it is further
ORDERED that Defendant pay an additional $10,000.00 to Plaintiff for legal fees incurred and already paid for by Plaintiff; and it is further
ORDERED that Defendant pay Plaintiff $4,200.00 to reimburse Plaintiff for child care and medical expenses.
The following was considered by the Court in deciding the motion: Stipulation of Settlement, Transcript of Proceedings, dated May 18, 2010; Joint Statement of Proposed Disposition, dated May 10, 2010; Plaintiff's Notice of Motion, filed June 15, 2010, Affidavit of Plaintiff Sharon Puera, sworn to June 14, 2010, Affirmation of David M. Rosoff, Esq. in Support, dated June 4, 2010; Affidavit of Defendant Daniel Puera in Opposition, sworn to July 13, 2010, and Affirmation of William T. Burke, Esq. in Opposition to Plaintiff's Application, dated July 13, 2010; Reply Affirmation of David M. Rosoff, Esq., dated July 23, 2010.
This constitutes the Decision and Order of this Court.