Opinion
2012-06-12
Leah VINIK, Plaintiff–Respondent, v. Steven LEE, Defendant–Appellant.
Stein Riso Mantel, LLP, New York (Kevin M. McDonough of counsel), for appellant. Goldweber Epstein LLP, New York (Nina S. Epstein of counsel), for respondent.
Stein Riso Mantel, LLP, New York (Kevin M. McDonough of counsel), for appellant. Goldweber Epstein LLP, New York (Nina S. Epstein of counsel), for respondent.
TOM, J.P., MOSKOWITZ, RENWICK, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Saralee Evans, J.), entered July 27, 2011, which, to the extent appealed from as limited by the briefs, upon plaintiff's motion for pendente lite relief, ordered defendant to pay $6,000 per month in unallocated interim support, and awarded plaintiff $25,000 in counsel fees, and order, same court and Justice, entered on or about November 16, 2011, which, to the extent appealed from as limited by the briefs, denied defendant's motion to renew plaintiff's motion, and awarded plaintiff an additional $25,000 in counsel fees, unanimously affirmed, with costs.
While the parties' premarital agreement limits their rights to obtain spousal support and waives their rights to counsel fees, “it does not bar temporary relief, including temporary maintenance [and] interim counsel fees” ( Solomon v. Solomon, 224 A.D.2d 331, 331, 637 N.Y.S.2d 728 [1996];see also Tregellas v. Tregellas, 169 A.D.2d 553, 564 N.Y.S.2d 406 [1991] ). “The best remedy for any perceived inequities [in the amount of the pendente lite award] is a prompt trial” ( Anonymous v. Anonymous, 241 A.D.2d 353, 660 N.Y.S.2d 972 [1997] ).
Since the parties' agreements do not address custody and child support, the waiver of counsel fees does not apply to counsel fees related to litigating child custody and support issues ( see Kessler v. Kessler, 33 A.D.3d 42, 45, 818 N.Y.S.2d 571 [2006],lv. dismissed8 N.Y.3d 968, 836 N.Y.S.2d 540, 868 N.E.2d 221 [2007];Alvares–Correa v. Alvares–Correa, 285 A.D.2d 123, 128, 726 N.Y.S.2d 668 [2001],lv. denied97 N.Y.2d 608, 739 N.Y.S.2d 97, 765 N.E.2d 300 [2002] ). If Illinois law, which governs the parties' agreement, were applied, the result would be the same. Illinois courts have held that a ban on a counsel fee award in a premarital agreement is not enforceable as to child-related issues because it violates public policy ( see In re Marriage of Best, 387 Ill.App.3d 948, 327 Ill.Dec. 234, 901 N.E.2d 967 [2009],lv. denied232 Ill.2d 577, 331 Ill.Dec. 370, 910 N.E.2d 1126). Illinois law also permits an interim counsel fee award where the parties have waived counsel fees in an agreement ( see In re Marriage of Rosenbaum–Golden, 381 Ill.App.3d 65, 74, 319 Ill.Dec. 27, 884 N.E.2d 1272, 1281 [2008],lv. denied229 Ill.2d 659, 325 Ill.Dec. 15, 897 N.E.2d 263 [2008] ).
The award of counsel fees to plaintiff was based on a proper consideration of “the financial circumstances of both parties together with all the other circumstances of the case” ( see DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881–882, 524 N.Y.S.2d 176, 518 N.E.2d 1168 [1987];Domestic Relations Law § 237). Further, the court properly considered the fees necessitated by defendant's litigation tactics to ensure that the litigation was not “shaped ... by the power of the bankroll” ( see O'Shea v. O'Shea, 93 N.Y.2d 187, 192, 689 N.Y.S.2d 8, 711 N.E.2d 193 [1999] ).
Defendant's motion to renew plaintiff's motion for pendente lite relief, which was premised on his fear that he could lose his job, offered no new facts that had not been offered on the original motion (CPLR 2221[e] ). Although defendant claimed in his reply that he had been terminated from his employment, he provided no objective proof thereof. Defendant's remedy is to move to modify the support award based on the alleged change of circumstances.
We have considered defendant's remaining contentions and find them unavailing.