Opinion
09/17030
03-11-2019
Jennifer M. MILLER (n/k/a Dunivent), Plaintiff, v. Jordan C. MILLER, Defendant.
Debra A. Crowder, Esq., Attorney for Plaintiff, Rochester, New York Maureen Pineau, Esq., Attorney for Defendant, Rochester, New York Susan Laragy, Esq., Attorney for Child(ren), Rochester, New York
Debra A. Crowder, Esq., Attorney for Plaintiff, Rochester, New York
Maureen Pineau, Esq., Attorney for Defendant, Rochester, New York
Susan Laragy, Esq., Attorney for Child(ren), Rochester, New York
Richard A. Dollinger, J.
When New York's Legislature enacted a presumption for an award of legal fees to a lesser moneyed divorce litigant, it seemingly borrowed the concept from one of the state's former governors, who epically wrote about the importance of "the man in the arena" and how he "strives valiantly" even if he or she "comes [up] short again and again." The Legislature, it appears, wanted both divorce litigants to be "in the arena" with a reasonable - if not somewhat equal - chance to adequately make their case.
Theodore Roosevelt, Citizenship in a Republic , Sorbonne, Paris, France, 1910. Now known as "The Man in the Arena" speech.
In this matter, the husband's counsel's seeks an award of interim attorneys fees. Guided by Section 237(a) of the Domestic Relations Law, New York courts have given a wide berth to a presumption for interim attorneys fees in contested cases. N.B., v. F.W. , 2019 NY Misc. LEXIS 14 (Sup. Ct. New York Cty 2019). In Prichep v. Prichep , 52 AD3d 61 (2d Dept 2008), the Court noted that the interim award of fees ensures that the non-monied spouse will be able to litigate the action, and do so on an equal footing with the monied spouse. Such an award "is appropriate to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation.’ " Gober v. Gober , 282 AD2d 392, 393 (1st Dept 2001). Such interim awards focus upon redressing economic disparity between the parties and ensuring that superior resources do not unbalance the scales of justice. Frankel v. Frankel , 2 NY3d 601, 607 (2004). Unlike a final award of attorney's fees, when awarding interim counsel fees, the court need not conduct a detailed inquiry or evidentiary hearing. Prichep v. Prichep , 52 AD3d at 65.
In this matter, the income disparity is substantial: the wife reports annual income over $ 110,000 and the husband has less than $ 40,000 annually in income. Under Section 237 (a), the presumption kicks in and an award of fees is easily justified.
The wife does not dispute the substantial disparity in incomes. She argues that there are countervailing facts that negate a claim for fees or should moderate the amount of fees to be awarded. There are serious allegations over an incident involving the children that was caused by the father's behavior, the mother alleges. The children's attorney has suggested that the children's reaction to this incident justifies their diminished relationship with their father. The wife's counsel characterizes this matter as "not a cut and dry" case. The wife's counsel also argues that while she has paid child support, two of the couple's three children reside with her and the third resides half time with her, factors that would suggest child support should be received - not paid - by the mother. The mother also alleges that she is paying add-on expenses and other costs for the children without contribution from the father and, as a consequence, child support should be suspended. Finally, she argues that she cannot afford to pay fees and advises that any fee decisions should remain until after trial.
In short, the mother's argument is that this Court should ignore the presumption for an interim award of fees and consider the mother's arguments on the ultimate merits of parenting time and child support obligations or her ability to pay the fees before awarding any fees. The Court declines to take that step. There no suggestion in the statute that an award of interim fees should be somehow predicated on the possible results of a trial. The Legislature wanted both litigants to have a fair chance to advance - and defend - their legal position, even if the Court ultimately sides against the party who receives the interim award. There is no suggestion that the Legislature wanted courts to peek around the corner in a divorce matter and try to weigh the relative merits and claims before trial as a prerequisite to an award of interim fees. Simply put, the interim fees under the Section 237 (a) presumption are awarded to make sure both parties can compete in the arena not in anticipation of any specific outcome.
The wife's counsel's comments that her client owes substantial sums to her attorney and the client lacks resources to pay her own fees - much less her husband's — are also unavailing. The more moneyed spouse in this case has much a better opportunity to finance the cost of litigation than her lesser-moneyed husband. This Court acknowledges that this matter is "not cut and dry" and has layers of complexity that may lead to a lengthy and expensive trial but the substantial cost of the looming trial tilts the equitable scales even more favorably to an the award of an interim fee.
The arguments offered by the mother against an interim award of fees, while not pertinent at this point, retain vitality because fees awarded at the end of the divorce can be apportioned based on the relative success - or failure — of proof or other delaying tactics of either party. See Morrissey v. Morrissey , 259 AD2d 472, 686 N.Y.S.2d 71 (2d Dept 1999) (court must consider "relative merits" of the parties positions in assessing fees and may consider "stonewalling" conduct that results in unnecessary litigation); see also Prichep v. Prichep , 52 AD3d 61, 858 N.Y.S.2d 667 (2d Dept 2008) (the court may also consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation). At the conclusion of this matter, this court can review the financial circumstances of both parties after equitable distribution, together with all of the other circumstances of the case, which may include the relative merit of the parties' positions. See Bagielto v. Kolsch , 148 AD3d 766 (2d Dept 2017).
As this Court has previously opined:
If this (additional counsel-fee) award saddles the (more-monied defendant) with excessive costs, the court reserves its right to re-allocate fees after trial when the court can determine who has prevailed on which issues and examine the tote board of equitable distribution to determine a final allocation of these otherwise necessary costs. This award still leaves the (plaintiff) with ‘a horse in the race’ - his exposure to additional fees during trial and the potential for reallocation of fees against his interest after trial - that should nose him - and his soon-to-be ex-wife (who faces the same choices) - closer to the finish line.
Kinney v. Kinney , 58 Misc 3d 1209[A], 2018 NY Slip Op 50023[U] (Sup. Ct. Monroe Co. 2018). If this Court found that the husband's conduct was an unjustified cause of extra costs in the litigation, it could award fees against the husband at the conclusion of the matter. Clements v. Clements , 43 Misc 3d 1211 [A] (Sup. Ct. Monroe County, 2014)
In this case, interim fees of $ 3000 are awarded to the husband and those fees must be paid within 15 days of the entry of the order resulting from this decision. In addition, this Court expressly reserves the right to award fees to either party in the arena at the resolution of this matter in accordance with its prior opinions and other precedents.
SUBMIT ORDER ON NOTICE 22 NYCRR 202.48.