Opinion
10173 Index 310823/12
10-22-2019
David SOLTANPOUR, Plaintiff–Appellant, v. Christine KOCH, Defendant–Respondent.
Hegge & Confusione, LLC, New York (Michael Confusione of counsel), for appellant. Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Barry Abbott of counsel), for respondent.
Hegge & Confusione, LLC, New York (Michael Confusione of counsel), for appellant.
Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Barry Abbott of counsel), for respondent.
Renwick, J.P., Gische, Tom, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Douglas E. Hoffman, J.), entered November 28, 2017, which, to the extent appealed from, awarded defendant wife $135,000 in interim counsel fees, unanimously affirmed, without costs.
It was a provident exercise of the court's discretion to direct plaintiff husband to pay $135,000 of the wife's requested attorneys' fees ( Domestic Relations Law § 237[b] ), given the husband's failure to rebut the statutory presumption that fees shall be awarded to the less monied spouse (id. ). Cognizant of the high fees that had accrued in this case, pre-trial, the court did not award the wife 100% of what she sought. We find its determination to award the wife 90% of the requested $150,000, subject to reallocation after trial, a sound exercise of discretion (see DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 524 N.Y.S.2d 176, 518 N.E.2d 1168 [1987] ). The court was not required to accept or adjudicate, in advance of trial, the husband's claims of a change in financial circumstances. The decision to award the wife fees at this time was a provident exercise of discretion, especially because the husband had failed to support his claim that he was no longer the more monied spouse with, at a minium, a completed updated net worth statement and recent tax returns.
We reject the husband's argument that the fee waiver in the parties' prenuptial agreement precludes the attorneys' fee award ( Maddaloni v. Maddaloni, 163 A.D.3d 794, 81 N.Y.S.3d 493 [2d Dept. 2018] ). The circumstances weigh against enforcement of the agreement at this juncture, given the disparity in the parties' finances, and the hearing which revealed a potentially meritorious challenge to the terms of the parties' prenuptial agreement ( Maddaloni, 163 A.D.3d at 795–796, 81 N.Y.S.3d 493 ; see Anonymous v. Anonymous, 123 A.D.3d 581, 584–585, 999 N.Y.S.2d 386 [1st Dept. 2014] ).
We have considered the husband's remaining arguments and find them unavailing.