KeyCite Yellow Flag - Negative Treatment
 	Proposed Legislation
McKinney’s Consolidated Laws of New York Annotated 
Domestic Relations Law (Refs & Annos)
Chapter 14. Of the Consolidated Laws (Refs & Annos)
Article 13. Provisions Applicable to More than One Type of Matrimonial Action (Refs & Annos)
McKinney’s DRL § 237
§ 237. Counsel fees and expenses
Effective: November 20, 2015
Currentness

(a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to declare the validity or nullity of a judgment of divorce rendered against a spouse who was the defendant in any action outside the State of New York and did not appear therein where such spouse asserts the nullity of such foreign judgment, (5) to obtain maintenance or distribution of property following a foreign judgment of divorce, or (6) to enjoin the prosecution in any other jurisdiction of an action for a divorce, the court may direct either spouse or, where an action for annulment is maintained after the death of a spouse, may direct the person or persons maintaining the action, to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court’s discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. An unrepresented litigant shall not be required to file such an affidavit detailing fee arrangements when making an application for an award of counsel fees and expenses; provided he or she has submitted an affidavit that he or she is unable to afford counsel with supporting proof, including a statement of net worth, and, if available, W-2 statements and income tax returns for himself or herself. Any applications for fees and expenses may be maintained by the attorney for either spouse in his or her own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section.

(b) Upon any application to enforce, annul or modify an order or judgment for alimony, maintenance, distributive award, distribution of marital property or for custody, visitation, or maintenance of a child, made as in section two hundred thirty-six or section two hundred forty of this article provided, or upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court’s discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement, between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in counsel’s own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section.

(c) In any action or proceeding for failure to obey any lawful order compelling payment of support or maintenance, or distributive award the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney representing the petitioner.

(d) The term “expenses” as used in subdivisions (a) and (b) of this section shall include, but shall not be limited to, accountant fees, appraisal fees, actuarial fees, investigative fees and other fees and expenses that the court may determine to be necessary to enable a spouse to carry on or defend an action or proceeding under this section. In determining the appropriateness and necessity of fees, the court shall consider:

1. The nature of the marital property involved;

2. The difficulties involved, if any, in identifying and evaluating the marital property;

3. The services rendered and an estimate of the time involved; and

4. The applicant’s financial status.

Credits

(Added L.1962, c. 313, § 10. Amended L.1963, c. 341, § 1; L.1963, c. 685, § 7; L.1978, c. 444, § 1; L.1980, c. 281, § 10; L.1983, c. 86, § 1; L.1983, c. 287, § 1; L.1986, c. 149, § 1; L.1986, c. 892, § 5; L.1987, c. 482, § 1; L.1992, c. 422, § 1; L.2010, c. 329, § 1, eff. Oct. 12, 2010; L.2015, c. 447, § 1, eff. Nov. 20, 2015.)
 
Editors’ Notes
SUPPLEMENTARY PRACTICE COMMENTARIES

by Alan D. Scheinkman
 
2014
C237:1: Counsel Fees Generally
C237:1: Counsel Fees Generally
C237:1: Counsel Fees Generally

Several trial court decisions reflect attention given to the merits of the case in determining the issue of counsel fees. These decisions reflect a tendency on the part of the courts to award fees to a party whose litigation expenses have been unreasonably increased by the assertion of unrealistic or unreasonable litigation positions by the adverse party or where the applying party has sustained expense or other consequence on account of delay or obstructionist conduct by the adverse party.

In G.T. v. A.T., 43 Misc.3d 500, 980 N.Y.S.2d 255 (Sup. Ct. Suffolk County 2014) (Leis, J.), the court credited the wife, and charged the husband, for nearly $11,000 in counsel fees incurred by the wife in connection with the trial of the action. The court found that the husband had engaged in a pattern of obstructionist conduct which unnecessarily delayed the case and increased the legal costs. The court concluded that, by reason of the husband’s conduct, a trial that should have taken 3 to 4 days actually took 12 days. While wife was employed and had to take time from work and was represented by counsel, the husband was unemployed (through a voluntary departure) and self-represented. Thus, he was suffering no pecuniary consequences (either through loss of employment or through his own counsel fee obligations) by protraction of the trial. The court held the husband responsible for all of the wife’s trial fees. “Simple justice dictates that the defendant who chooses to function from a position of anger and resentment, not be allowed to purposely drive up the plaintiff’s counsel fees and action in such an inappropriate manner..... ”980 N.Y.S.2d at 264.

In N.M. v. R.G., 43 Misc.3d 289, 978 N.Y.S.2d 802 (Sup. Ct. Richmond County), the court awarded the wife $20,000, representing one-half of all fees and costs incurred by reason of the protracted and prolonged litigation, much of which centered award the nature, quantity, source and effect of the husband’s involvement with prescription drugs. The court, among other things, found that the husband’s failure to acknowledge and timely address his abuse or misuse of prescription drugs resulted in the need for a motion to suspend his visitation, the necessity for a court appointed supervisor, and a protracted trial with expert testimony.

Lastly, in Clements v. Clements, 43 Misc.3d 1211(A), 990 N.Y.S.2d 437, 2014 WL 1419279 (Sup. Ct. Monroe County 2014), the court awarded the wife $22,500 in counsel fees, where the husband accepted a settlement, as the trial was beginning, that was based on almost exactly the same terms as was offered to, and rejected, by the husband six months earlier. While the husband had not engaged in obstructionist conduct, in its typical sense of unduly contentious conduct, the court concluded that the husband’s original rejection of the settlement was a delay tactic. According to the court, the husband was motivated solely to have the wife expend additional legal fees which had the practical effect of reducing her final pay out from the divorce. While recognizing that parties are entitled to their day in court and that a disinterest in settling is not necessarily obstructionist, the court found the argument “cinched” by the fact that the husband had also accumulated some $37,000 in child support arrears.
 
2011
C237:1: Counsel Fees Generally
C237:4: Interim Counsel Fees
C237:5: Post-Trial Awards
C237:6: Counsel Fees for Appellate Proceedings

_______
 
C237:1: Counsel Fees Generally

Even after the adoption of the 2010 legislation discussed in the main volume, the appellate courts tend to focus on whether there is a significant disparity in the financial circumstances of the parties in evaluating requests for counsel fees. For example, in Moccia v. Moccia, 82 A.D.3d 1064, 918 N.Y.S.2d 802 (2d Dept. 2011), the Appellate Division affirmed, by a 3-2 majority, the denial of a request for less than $21,000 in counsel fees by the attorney for the wife. The wife had not had any funds to retain counsel so the court appointed an attorney for her, on condition that the attorney could look only to the husband for fees. The parties engaged in discovery, prepared for trial, and successfully negotiated a settlement agreement, which reserved to the attorney for the wife the opportunity to seek fees. The trial court denied the application without a hearing and the Appellate Division affirmed. While the majority commended counsel for accepting the assignment, it concluded that denial of fees was not an improvident exercise of discretion, given the husband’s limited assets, the outstanding mortgage, the absence of savings, and the husband’s debt to his own counsel, and the ultimate determination that the parties’ financial circumstances were not that disparate. Two dissenting Justices urged that the proper result was to order a hearing They stated that the wife’s attorney, who was willing to step into this case at the Supreme Court’s behest, should not be turned away without a hearing to determine what, if any, attorney’s fee is appropriate under the circumstances.

In contrast, the Second Department held that an award of interim fees to the non-monied spouse is generally warranted where there is a significant disparity in the financial circumstances of the parties. See Witter v. Daire, 81 A.D.3d 719, 917 N.Y.S.2d 870 (2d Dept. 2011); see also Cohen v. Cohen, 73 A.D.3d 832, 900 N.Y.S.2d 460 (2d Dept. 2010) (award for appellate fees and expenses and award for making application for appellate fees and expenses).
 
C237:4: Interim Counsel Fees

As noted in the main volume at page 36, interim fee applications are usually determined on the basis of the papers submitted and without an evidentiary hearing. The Appellate Division, Third Department, has recently recognized that interim counsel fee awards may be made without a full evidentiary hearing. Lang v. Lang, 72 A.D.3d 1255, 897 N.Y.S.2d 778 (3d Dept. 2010). Likewise, the Second Department has reiterated that an evidentiary hearing is not required prior to an award of interim counsel fees. Isaacs v. Isaacs, 71 A.D.3d, 897 N.Y.S.2d 225 (2d Dept. 2010). The Lang case, from the Third Department, reflects a willingness of the court to consider the making of a successive award. In that case, commenced in 2003, the wife was awarded interim fees in 2004 and in 2007, with these awards totaling $50,000. In May 2008, she applied for further relief, including another $50,000 in interim fees. The matrimonial court granted her another $25,000 in fees and the Appellate Division affirmed. The appellate court recognized that the trial court was familiar with the contentious litigation, that the wife had expended more than $100,000 in legal fees (obtained by an advance against equitable distribution and borrowings), and the husband’s net worth had increased from $5 million in 2003 to about $8 million at the time of the application.

In Cheney v. Cheney, 86 A.D.3d 833, 927 N.Y.S.2d 696 (3d Dept. 2011), the court upheld an order from the trial court denying the wife interim legal fees where the wife was represented by her father. The appellate court viewed the wife has not having actually expended any money on legal fees. While the wife’s father stated that he expected to be paid for his services, the appellate court held that it was not an abuse of discretion to deny the application, without prejudice to renewal at trial.
 
C237:5: Post-Trial Awards

As noted in the main volume at pages 39-40, on an application for counsel fees, appropriate evidence of the services provided must be submitted. In Cervone v. Cervone, 74 A.D.3d 1268, 904 N.Y.S.2d 481 (2d Dept.2010), the court affirmed the denial of the wife’s application for $50,000 in legal fees on the ground that the documentation submitted by her attorney was devoid of information which identified the services rendered, thus precluding the granting of the award.
 
C237:6: Counsel Fees for Appellate Proceedings

In Cohen v. Cohen, 73 A.D.3d 832, 900 N.Y.S.2d 460 (2d Dept. 2010), the Appellate Division held that an award of appellate fees and the costs of producing an appellate record was appropriate, given the significant economic disparity between the parties. The wife was unemployed and lacked any independent source of income, while the husband was an attorney and a partner in a large law firm, earning some $450,000 per year. The Appellate Division also concluded that an award of $3,000 to the wife’s attorney for the services involved in making the application for appellate fees and costs was appropriate as well.
 
PRACTICE COMMENTARIES

by Alan D. Scheinkman
 
C237:1: Counsel Fees Generally
C237:2: Actions in Which Awards May be Made
C237:3: Stage of Proceedings in Which Awards May be Made
C237:4: Interim Counsel Fees
C237:5: Post-Trial Awards
C237:6: Counsel Fees for Appellate Proceedings
C237:7: Counsel Fees in Enforcement Proceedings
C237:8: Litigation Expenses Generally
C237:9: Counsel Fees as Necessaries
C237:10: Counsel Fees to Contract Attorneys
C237:11: Court Rules Governing Matrimonial Counsel Fees
C237:1: Counsel Fees Generally

DRL Section 237 authorizes the court, in certain designated actions and proceedings of a matrimonial nature, to direct either spouse to pay such sums as necessary to enable the other spouse to prosecute or defend the action or proceeding. The amount to be awarded is within the discretion of the court, having regard to the circumstances of the case and of the respective parties. The manifest purpose of the statute is to enable the less affluent spouse to obtain appropriate legal and other services necessary for a proper and effective presentation of his or her case by allowing the court to make the more affluent spouse financially responsible for those expenses. The concern is that attorneys and other needed experts would not elect to represent spouses who could not afford to pay for their services absent the power of the court to charge the adverse party with responsibility for payment. As the Court of Appeals has stated, the statute is designed to enable the court to redress an economic disparity between a monied spouse and a non-monied spouse in order that “the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant’s wallet.” O’Shea v. O’Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8, 711 N.E.2d 193, (1999). The objective is to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence. Id.

The statute was amended in 2010 (effective October 12, 2010) to create a rebuttable presumption that counsel fees be awarded to the spouse with less money. The statute also makes it plain that the court is to assure that each party be adequately represented and that, where an award is made, that the award be made timely on a pendente lite basis so as to assure that there is adequate representation from the beginning of the case. See DRL § 237 (subd. 1, as amended by L.2010, ch. 329.

DRL Section 237, and the authority it conveys to the court to equitably apportion the costs of litigation, has become especially important since the advent of equitable distribution. With equitable distribution, pre-trial proceedings have become more protracted, disclosure more time-consuming and complex, and trials longer. Where the marital assets are significant but are titled or controlled largely by one spouse, the other spouse’s ability to obtain effective representation and trial preparation may depend, to a considerable extent, upon the court’s use of its authority to compel payment from the more affluent spouse. Even before the 2010 statutory revision, if the court did not award counsel fees to the less monied spouse, the court would not have ordinarily made the less monied spouse pay the fees of the more affluent spouse. Hathaway v. Hathaway, 16 A.D.3d 458, 791 N.Y.S.2d 631 (2nd Dept. 2005) (error to direct that legal fees of wife, the monied spouse, be reimbursed to her from marital assets prior to distribution as this effectively made the husband, the nonmonied spouse, bear the cost of the counsel fees of the monied spouse).

At one time, DRL Section 237 permitted counsel fees to be awarded only to wives. In Orr v. Orr, 99 S.Ct. 1102, 440 U.S. 268, 59 L.Ed.2d 306 (1979), the Supreme Court held that it was unconstitutional to limit the availability of alimony awards only to wives. Following the Orr decision, the courts temporarily salvaged the constitutionality of DRL § 237 by, in effect, re-writing it to make it gender neutral. See Childs v. Childs, 69 A.D.2d 406, 419 N.Y.S.2d 533 (2nd Dept. 1979), mandamus denied, 100 S.Ct. 691, 444 U.S. 1010, 62 L.Ed.2d 660 (1980), appeal dismissed and cert. denied, 100 S.Ct. 1824, 446 U.S. 901, 64 L.Ed.2d 253 (1980). The Equitable Distribution Law, effective July 19, 1980, not only introduced new concepts of property distribution upon dissolution of the marriage, but gender-neutralized the wording of numerous statutes, DRL § 237 included. An award of counsel fees and litigation expenses may now be made to a needful party, irrespective of gender.

It should be stressed, before proceeding too far, that the effect of DRL Section 237 is to empower the court to make a non-client, indeed an adverse party, responsible for the fees and expenses incurred by an attorney or other expert. The court is not empowered, by this statute, to interfere with the fee relationship between the attorney and the client. Thus, if the court finds that an attorney, who seeks a counsel fee award, is not entitled to the entire sum sought, it may make an appropriate award or deny a fee award altogether. However, the court may not preclude the attorney from seeking the balance of the fee claimed from their own client, if the retainer agreement permits it. Law Firm of Joel R. Branes P.C. v. Ferraro, 257 A.D.2d 610, 685 N.Y.S.2d 83 (2nd Dept. 1999). While the attorney is obligated to credit the client with the amount paid by the adverse party, the attorney may seek to recover from the client for the difference between the amount paid by the adverse party and the amount owed pursuant to the retainer agreement. The attorney may not recover a total amount which is deemed to be unreasonable or unconscionable. Id. On the other hand, where the opposing party is directed to make full payment for the client’s counsel fee obligations, the attorney may be properly directed to refund to the client all monies the client paid upon the attorney’s receipt of the sums awarded from the adverse party. See Tarr v. Tarr, 45 A.D.2d 1050, 358 N.Y.S.2d 172 (2nd Dept. 1974).

Court rules, including rules adopted by the Appellate Divisions under their their authority to regulate attorney practices and to impose discipline for violations, have imposed strict regulation upon the terms of matrimonial retainer agreements and the billing of clients by matrimonial counsel. The rules require attorneys to submit to arbitration of fee disputes, at the option of the matrimonial client. These matters are considered in Practice Commentary C237:11, infra.

DRL § 237 permits the court to direct that one spouse pay the counsel fees of the other. Indeed, the statute provides for the payment to be made directly to the attorney for the spouse to whom counsel fees are awarded. However, it is apparent that the court may direct that the payment be made directly to a party who has already advanced funds to his or her counsel. Thus, in Ross v. Ross, 90 A.D.2d 541, 455 N.Y.S.2d 113 (2nd Dept. 1982), it was held appropriate and permissible to direct a husband to reimburse the wife for monies that she advanced to her counsel in the event that it is determined that the husband should be responsible for the payment of the wife’s counsel fee obligations. See also Bayer v. Bayer, 102 A.D.2d 879, 477 N.Y.S.2d 51 (2nd Dept. 1984); Silver v. Silver, 63 A.D.2d 1017, 406 N.Y.S.2d 352 (2nd Dept. 1978).

At one time, some cases, particularly some decisions of the the Appellate Division, First Department, held that the payment by a spouse of funds to his or her own attorney indicates, perforce, that the spouse is able to pay his or her own counsel fees and, therefore, an award of counsel fees should be precluded. See, e.g. Kann v. Kann, 38 A.D.2d 545, 327 N.Y.S.2d 75 (1st Dept.1971). These cases were effectively overruled by the Court of Appeals’ decision in Decabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 524 N.Y.S.2d 176 (1987), which held that a spouse is not required to show indigency in order to obtain an award of counsel fees. Thus, the fact that a spouse has assets, or has paid counsel with some assets, does not preclude the court from making a counsel fee award payable by the other spouse. Moreover, by 2010 legislation, the fact that the applying party paid a retainer does not preclude the making of an award of fees. DRL §237 (subd. 1, 2), as amended by L.2010, ch. 329, effective October 12, 2010.

Where the court has made a counsel fee award but the party for whom the award is made has already paid a greater sum to his or her own counsel, it is improper to direct the other spouse to make reimbursement for the excess. See Moreno v. Moreno, 38 A.D.2d 843, 329 N.Y.S.2d 899 (2nd Dept. 01972).

An award of counsel fees in a matrimonial action is a matter that the court decides by using its discretion, based upon the facts and circumstances of the particular case, including the relative merit of the parties’ positions and their respective financial conditions. See, e.g. Koons v. Koons, 212 A.D.2d 370, 622 N.Y.S.2d 242 (1st Dept. 1995); Linda R. v. Richard E., 176 A.D.2d 312, 574 N.Y.S.2d 756 (2nd Dept. 1991); Tregellas v. Tregellas, 169 A.D.2d 553, 564 N.Y.S.2d 406 (1st Dept. 1991). The amount that a party receives in equitable distribution is relevant on the issue of counsel fees. Richards v. Richards, 189 A.D.2d 1025, 592 N.Y.S.2d 872 (3rd Dept. 1993); Campinell v. Campinell, 220 A.D.2d 940, 632 N.Y.S.2d 863 (3rd Dept. 1995); Morrongiello v. Paulsen, 195 A.D.2d 594, 601 N.Y.S.2d 121 (2nd Dept. 1993). The court may look to which party has superior earning power and whether a party engaged in conduct or tactics which unnecessarily prolonged the litigation. Nee v. Nee, 240 A.D.2d 478, 658 N.Y.S.2d 440 (2nd Dept. 1997); Pauk v. Pauk, 232 A.D.2d 386, 648 N.Y.S.2d 621 (2nd Dept. 1996); Rice v. Rice, 222 A.D.2d 493, 634 N.Y.S.2d 761 (2nd Dept. 1995); Cerretani v. Cerretani, 221 A.D.2d 814, 634 N.Y.S.2d 228 (3d Dept. 1995); Saasto v. Saasto, 211 A.D.2d 708, 621 N.Y.S.2d 660 (2nd Dept. 1995). Presumably, under the 2010 statute, if the less monied spouse receives a significant share of assets in distribution and the financial resources of the parties are equalized, the spouse may not necessarily be “less monied” once the equitable distribution is achieved.

An attorney is not precluded from seeking fees, charged pursuant to a retainer agreement, that are greater than the amount granted to the client or the attorney by the court in the matrimonial action. Law Firm of Joel R. Brandes, P.C. v. Ferraro, 257 A.D.2d 610, 685 N.Y.S.2d 83 (2nd Dept. 1999). While the attorney is obligated to credit the client with the amount paid by the adverse party, the attorney may seek to recover from the client for the difference between the amount paid by the adverse party and the amount owed pursuant to the retainer agreement. However, the attorney may not recover a total amount which is deemed to be unreasonable or unconscionable. Law Firm of Joel R. Brandes, P.C. v. Ferraro, 257 A.D.2d 610, 685 N.Y.S.2d 83 (2nd Dept. 1999). The court has the authority to review whether the fee sought to be enforced is excessive, an authority that is not precluded by the fact that the client agreed to pay it. Campion v. Campion, 32 A.D.3d 814, 821 N.Y.S.2d 232 (2nd Dept. 2006). In that case, in the stipulation of settlement, the wife agreed to pay $31,615.40 to her attorney out of the marital property that she was to receive in equitable distribution. When the attorney sought to collect the agreed upon fee, the wife objected, claiming that the fee was excessive. The Appellate Division ruled that the matrimonial court was required to hold a hearing on whether the fee was, in fact, excessive, notwithstanding the wife’s initial agreement to pay it.

Note that, in a nonmatrimonial context, a provision in a retainer agreement providing for the payment of 16% interest on unpaid legal fees was held unenforceable; while interest may be recovered, it must be reasonable and, while the statutory rate of 9% is reasonable, 16% is not. Kutner v. Antonacci, 16 Misc. 3d 585, 837 N.Y.S.2d 859 (Dist. Ct. Nassau County 2007).

Where there has been a change of attorneys, a spouse may not seek reimbursement from the other spouse for a retainer paid to the movant’s former counsel since the potentiality or actuality of a voluntary change of counsel is not among the factors to be considered in fixing an award of counsel fees. Provenzano v. Provenzano, 71 A.D.2d 618, 418 N.Y.S.2d 140 (2nd Dept. 1979). Likewise, where a party repeatedly changed attorneys, an award of fees was held limited to those expenses incurred in regard to the most recent representation, rather than in regard to the totality of the services by all the attorneys involved. Upbin v. Upbin, 213 A.D.2d 629, 624 N.Y.S.2d 193 (2nd Dept. 1995).

Where a party is directed to make full payment for the other party’s counsel fees, the attorney for the party for whom the award is made may be properly directed to reimburse to his or her client the full amount paid by the client upon receipt of the sums awarded from the other party. Tarr v. Tarr, 45 A.D.2d 1050, 358 N.Y.S.2d 172 (2nd Dept. 1974).

Where a counsel fee award may be made, the court may also direct the payment by one spouse of fees and expenses of experts for the other spouse. DRL §§ 237 (subd. a), 237 (subd. b), as amended by L.2010, ch. 329. Expert fees and expenses which may be the subject of such an award may include, but are not limited to, accountant fees, appraisal fees, actuarial fees, investigative fees, and such other fees and expenses that the court may determine to be necessary to enable a spouse to carry on or defend the action or proceeding. DRL § 237 (subd. c). The statute permits litigation expenses to be the subject of an award. Litigation expenses do not include personal living expenses such as costs for personal travel, clothing, or for the education of children. See Ross v. Ross, 90 A.D.2d 541, 455 N.Y.S.2d 113 (2nd Dept. 1982). Such personal expenses, however, may be considered in the context of a maintenance or support application or form the basis of a cause of action for necessaries. Litigation expenses are more generally considered in Practice Commentary C237:8, infra.

In O’Shea v. O’Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8, 711 N.E.2d 193 (1999), the Court of Appeals held that where the more affluent spouse has tried to wear down or financially punish the opposition by recalcitrance or by prolonging the litigation, and, as part of such conduct, has required the less affluent spouse and his or her counsel to submit a hearing on the issue of counsel fees, the matrimonial court may award the less affluent spouse legal fees for the services incurred in connection with the hearing. It should be noted that a mere request for a hearing, by itself, does not carry with it a label of intransigence. Further, the Court of Appeals emphasized that awards for legal services for fee hearings should not be routinely granted. And, significantly, the Court said nothing about legal services rendered prior to the commencement of the hearing itself.

Prior to O’Shea, there was a difference of opinion as to whether the time expended in seeking an award of counsel fees may be compensated in an award of counsel fees. The Appellate Division, First Department, permitted counsel fees to be awarded for seeking counsel fees, while the Appellate Division, Second Department, did not. Compare Wyser-Pratte v. Wyser-Pratte, 160 A.D.2d 290, 553 N.Y.S.2d 719 (1st Dept. 1990) with Getman v. Getman, 156 A.D.2d 686, 549 N.Y.S.2d 161 (2nd Dept. 1989). The First Department’s approach seems fairer to counsel and to comport with the general tenor and purpose of Domestic Relations Law Section 237. Surely, the more affluent spouse is incurring, and presumably paying, legal fees to resist the application. If fees for preparing the application are not compensable, the more affluent spouse may try to drag out and protract the matter, if for no other reason punish the less affluent spouse by requiring the less affluent spouse to absorb the expense of seeking counsel fees. Further, if counsel fee awards are slow in coming and are uncertain, and the costs involved substantial, counsel may be discouraged from representing the less affluent spouse. The Second Department has revisited its determination in light of O’Shea, holding that the courts have authority to grant legal fees for services incident to a counsel fee application, though remarking that such fees should not be routinely expected or freely granted. Matter of Rospigliosi v. Abbate, 31 A.D.3d 648, 819 N.Y.S.2d 285 (2nd Dept. 2006). The Second Department suggested, based upon O’Shea, that appropriate circumstances are where the more affluent spouse has tried to wear down or financially punish the opposition by recalcitrance or by prolonging the litigation. In light of Rospigliosi, the Second Department’s prior precedents, and in particular Getman, have been overruled and are no longer good law.

As amended in 2010, a direction with respect to counsel fees and litigation expenses may be made at any time or times prior to final judgment. DRL §237 (subd. 1), as amended by L.2009, ch. 329, effective October 12, 2010. Under the previous version of the statute, an award must be made in a final judgment and may also be made in one or more orders before final judgment or both in such order or orders and in the final judgment. The language in the language should not preclude the making of a counsel fee award in the judgment itself.

An application for counsel fees and expenses may be maintained by an attorney for a party in his or her own name within the action or proceeding. DRL § 237.

An award of counsel fees should be expressed as a direction to a party to pay a specific dollar amount. Thus, it is error for a court to order a party to pay or contribute a stated percentage of a prospective fee to be incurred in connection with a future hearing. Messinger v. Messinger, 24 A.D.3d 631, 809 N.Y.S.2d 83 (2nd Dept. 2005) (the court should defer the issue of an award until after the expense has actually been incurred or award a specific sum based upon a demonstration as to what the amount of the fee is reasonably anticipated to be).

Where the litigation includes both matrimonial and non-matrimonial causes of action, attorneys may not make a contingency fee arrangement even with respect to the non-matrimonial claims. Thus, in a divorce case in which the wife alleged causes of action sounding oral partnership and constructive trust, along with claims for equitable distribution and maintenance, the attorney could not enforce an agreement under which he would be entitled to one-third of the sums recovered on the partnership and constructive trust claims. Ross v. DeLorenzo, 28 A.D.3d 631, 813 N.Y.S.2d 756 (2nd Dept. 2006). The Appellate Division, Second Department, reasoned that the court rule prohibition on contingency fees in domestic relations matter is broad and does not make a distinction between matrimonial and non-matrimonial claims. It also noted that enforcing a contingency fee on non-matrimonial claims would create an incentive for counsel to try to characterize the proceeds of a marital settlement as having been derived from non-matrimonial claims. In the cited case, the claims were joined in a single action. It would seem that the prohibition could not be circumvented by asserting the claims in distinct actions. To do so would exalt form over substance and encourage multiplicity of actions. Indeed, the attempted circumvention would itself be circumvented if the actions were consolidated. However, a different result could obtain where the non-matrimonial claim may is reserved for later litigation, see Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 810 N.Y.S.2d 96, 843 N.E.2d 723 (2005) (former wife not precluded from pursuing assault action against former husband by res judicata where wife’s factual allegations regarding the assault were withdrawn as part of stipulation for uncontested divorce), or arises too late to be considered in the divorce action.

An attorney for the nonmonied spouse who has been discharged without cause may still seek an award of counsel fees from the monied spouse. Frankel v. Frankel, 2 N.Y.3d 601, 781 N.Y.S.2d 59, 814 N.E.2d 37 (2004). The Court of Appeals, overruling the Appellate Division, held that Section 237 is not limited to applications by the current attorney of record. The Court reasoned that if lawyers terminated without cause lose their right to petition the court for a fee award from an adversary spouse, the less affluent spouse would suffer the consequences. The spouse with ready and ample funds would have a wide choice of counsel, and the financial wherewithal to maintain the litigation, while the nonmonied spouse would struggle to find a lawyer who might have to go unpaid. The Court observed that, as a practical matter, matrimonial lawyers may be willing to carry clients on their accounts receivable books, in the belief that the adversary spouse will have to pay, but lawyers might be less willing to do so if they believe that upon discharge without cause the accounts will prove unreceivable. Indeed, the decision by a client to terminate counsel without cause after considerable services were rendered would leave the lawyer at considerable financial risk. While the attorney could assert a charging lien, that lien would not attach to maintenance or child support, the client might not pursue or have a strong equitable distribution claim, and the conclusion of the underlying matrimonial action might be months, if not years, away.

A settlement between the parties does not, by itself, preclude an application for counsel fees made within the context of a pending action. But the key is that the action must be pending for an application to be made and considered. If the action is no longer pending, as the result of a settlement, a counsel fee award may be precluded as the result of another rule, which holds that, after judgment, the only counsel fee awards that can be made are for services rendered in postjudgment proceedings. These principles are highlighted by Taylor v. Taylor, 120 A.D.2d 355, 502 N.Y.S.2d 7 (1st Dept. 1986). There, the wife, represented by counsel, brought an action for divorce in New York. After one year of litigation, the wife, over her counsel’s objections, agreed to a settlement, which included the discontinuance of the New York action and the obtaining of a divorce in the Dominican Republic. While the wife’s attorneys refused to sign a substitution of counsel, the attorneys did not seek leave to withdraw and an assessment of their fees. The spouses proceeded to obtain the foreign divorce and filed a stipulation of discontinuance of the New York action, a stipulation which was predicated upon the fact that a foreign divorce had been obtained. After this stipulation was filed, the wife’s attorneys then moved for leave to withdraw, for a judicial determination of their fees, and for an order directing the husband to make payment. The Appellate Division held that it was too late for the wife’s attorneys to seek a counsel fee award. Since the action had been discontinued, the courts no longer had authority to award counsel fees for services rendered prior to the stipulated discontinuance.

A noteworthy exception to the rule that a postjudgment application cannot be made for an award of fees attributable to prejudgment services was made in Gilmore v. Gilmore, 138 A.D.2d 347, 525 N.Y.S.2d 639 (2nd Dept. 1988). There, the wife’s counsel had applied, prior to judgment, for an award of counsel fees. But, in the judgment, the application was denied on the ground that the application was not supported by sufficient facts, with leave granted to reapply on proper papers. The wife’s attorneys did reapply, and an award was made, with the husband objecting on the ground that, because judgment had already been entered, it was too late to award fees for prejudgment services. The Appellate Division rejected this contention, holding that the award was justified because the application was made prior to judgment and the court retained, in the judgment, limited jurisdiction to entertain the reapplication.

There is often irony in a situation where a party, who has paid substantial sums to his or her own attorney, challenges the amount of time that opposing counsel reports having spent on the matter. Several cases have posed the issue of whether a party seeking an award of counsel fees can obtain information from the opposing party as to what the opposing party’s attorney has done or received.

In an effort to address this issue, the 2010 legislation requires that each party and their counsel file affidavits with the court detailing the financial arrangement between the party and the attorney. The affidavit has to set forth the amount of any retainer, the amounts paid and owed, the hourly amount charged by the attorney, the amounts paid, or to be paid any experts and and additional costs, disbursements or expenses. DRL § 237 (subd. 1), as amended by L.2010, ch. 329 (effective October 12, 2010). The statute does not specify when the affidavits are to be filed nor does not it make clear whether a one-time affidavit is sufficient or if the affidavits must be updated. Perhaps this will be addressed in court rules; a logical reading of the statute, specially given its intent to have the courts equalize the playing field, would be that the affidavits must be filed each time there is an application for fees and expenses.

Prior to the 2010 legislation, in Match v. Match, 168 A.D.2d 226, 562 N.Y.S.2d 115 (1st Dept. 1990), the Appellate Division set aside an order which had required disclosure to the wife of the time records kept by the husband’s attorney. The wife’s attorneys had failed to keep appropriate records of their own and the trial court reasoned that the time logged by the husband’s counsel would be some indication of what the time expended by the wife’s counsel must have been. See 146 Misc. 2d 986, 553 N.Y.S.2d 626 (Sup.Ct. N.Y. County 1990). Even at that, the trial court directed only the production of time records, allowing the husband’s counsel “to delete all references to the dollar amount actually billed to [the husband] since only the amount of time expended on this matter is relevant and necessary to the question of reasonableness of the fees.” 553 N.Y.S.2d at 632.

On appeal, the Appellate Division ruled that the fact that wife’s attorneys kept “deplorable” time records did not authorize the court “to shift the burden” of proving the wife’s counsel’s fees to the husband’s counsel, by utilizing husband’s counsel’s time records to assist in determining the reasonableness of the fees sought by the wife’s counsel. 562 N.Y.S.2d at 116. The Appellate Division held that, while discovery might be appropriate in some cases, discovery is inappropriate where there is ample evidence to determine the reasonableness of the fees charged. And, in that case, the Appellate Division ruled such other ample evidence existed. It should be noted that the rules governing attorney conduct in matrimonial matters require that detailed bills be sent to the client at least every 60 days, which presupposes that accurate time records are maintained. 22 N.Y.C.R.R. § 1400.3. Failure to timely submit itemized bills to the client may result in the inability of the attorney to seek fees from the client. See Matter of Serazio-Plant, 299 A.D.2d 696, 750 N.Y.S.2d 347 (3d Dept. 2002), leave to appeal denied, 100 N.Y.2d 512, 766 N.Y.S.2d 166, 798 N.E.2d 350 (2003).

The issue was revisited by the court in De La Roche v. De La Roche, 209 A.D.2d 157, 617 N.Y.S.2d 767 (1st Dept. 1994), which involved the discoverability of fee bills rendered by adversary counsel to his or her client.

Fee bills involve far more sensitive considerations. Under the disciplinary regulations applicable to domestic relations matters, attorneys are required to regularly provide their clients with itemized bills. 22 N.Y.C.R.R. § 1400.3. Since attorneys are usually retained on the basis of an hourly rate, clients are entitled to see, not just a statement of the total hours worked, but an itemization of who did the work, what work was done, and the amount of time consumed. Such bills often set forth who the attorney spoke with, what documents the attorney looked at, and the subject matter (and sometimes the content) of attorney client discussions. The itemization is for the client’s benefit and the bills themselves are attorney client communications for privilege purposes.

When a party seeks an award of counsel fees, that party may be required to demonstrate to the court what services have been rendered to date. Sometimes counsel try to meet that requirement by providing a narrative statement of services (which may be based on time sheets and bills); other counsel may submit the bills and time sheets themselves. But, however the application is made, it seems to be understood that, in connection with a fee award made at trial, the party resisting the application is entitled to inspect the time sheets and bills rendered by applicant’s counsel. This is because the party resisting the application is entitled to challenge whether the services are compensable under the statutes involved, whether the services were necessary, and whether the time charged was reasonable. While the fee bills and time sheets are privileged, the privilege has, in effect, been waived by the making of a counsel fee request.

Fee bills rendered by the nonapplying side, however, are not subject to a waiver argument. But in De La Roche, the First Department, without citation to Match v. Match, supra, held that the fee bills of the husband should be produced for in camera inspection by the trial court. This is a curious ruling since the court, in its decision, acknowledged that fee bills are privileged or, at the very least, reflective of work product. Nevertheless, the trial court is to look at the bills in camera in order to make sure that the bills are entitled to protection as privileged.

De La Roche seems to impose an additional task on trial courts. Each party is entitled, without question, to examine the retainer agreement of the other party and counsel. No privilege attaches to the agreement or its terms, particularly since such terms (and the agreement itself) must be submitted as part of the court-required net worth statement. Nor is there any question but that each party can be required to disclose the amount billed by his or her counsel, as well as the amount of payments made to counsel. The amount billed represents a liability, or potential liability, that is just as discoverable as any other liability. The amount paid is an expense that is just as discoverable as any other paid expense. However, there may be matters reflected on time sheets that the party does not wish to let the court know about and would legitimately be entitled to keep under wraps. For example, time sheets might reflect discussion of a possible appeal or possible settlement terms.

Where an agreement provides the basis for an award of counsel fees, then the terms of the agreement, not the provisions of DRL § 237, control. Millard v. Millard, 246 A.D.2d 349, 667 N.Y.S.2d 714 (1st Dept. 1998). However, a party may seek the recovery of fees under both the statute and an agreement, unless the agreement contains an express waiver of the right to apply under the statute. Millard v. Millard, supra. Thus, a party may seek fees on both a statutory and contractual basis, provided that the party may not recover twice for the same fees. Where a party is relying upon the provisions of an agreement as the basis for an award of fees, that party must comply with the provisions of the agreement governing the process by which liability for fees is to be determined. Thus, where the agreement provided that the wife, in order to receive counsel fees, was required to send to the husband “written notice” of default, and that notices had to be sent by registered or certified mail, return receipt requested, the failure of the wife to comply with this requirement resulted in the denial of her application for an award of counsel fees under the agreement. Dallin v. Dallin, 225 A.D.2d 728, 640 N.Y.S.2d 196 (2nd Dept. 1996).

Where an agreement precludes the awarding of fees, the courts will enforce that preclusion unless the entire agreement is found to be invalid. Klein v. Klein, 246 A.D.2d 195, 676 N.Y.S.2d 69 (1st Dept. 1998). That said, the Appellate Division, Second Department, has held that a waiver of the right to seek counsel fees contained in a prenuptial agreement may be unenforceable where the effect of the waiver would be to preclude the non-monied spouse from prosecuting or defending the matrimonial action or proceeding. Kessler v. Kessler, 33 A.D.3d 42, 818 N.Y.S.2d 571 (2nd Dept. 2006). In that case, the parties litigated both the validity of the prenuptial agreement and the issue of child custody. The wife’s challenge to the validity of the agreement was rejected on its merits and the custody issue was settled on the eve of trial. The agreement provided that neither party would have any “right or claim against the other for support, alimony, attorney fees or costs”. The parties agreed that the word “support” did not mean, or include, “child support”. The Appellate Division concluded that, because “support” did not cover “child support”, there was no waiver of child support and, therefore, no waiver of an award of counsel fees as to child support. The appellate court also noted that, under Section 237, no award could be made for the fees attributable to an unsuccessful effort to rescind or reform the prenuptial agreement. But, ruled the court, it could be against public policy to deprive the non-monied spouse of the ability to obtain proper representation on issues of equitable distribution. In the case before the court, while the agreement permitted each party to retain their separate property--a provision which protected the husband’s substantial premarital assets--the agreement did not provide for the equitable distribution of the assets accumulated during marriage. Perhaps more important, though not noted by the court, the award of counsel fees may be crucial to the ability of the non-monied spouse to obtain proper representation in custody litigation. If the non-monied spouse has limited assets, and no ability to obtain counsel fees, that spouse would be seriously disadvantaged in advocating his or her position as to custody. The Second Department ruled that whether the waiver of a fee award should be enforced should generally be determined at the conclusion of the case, because it is at trial that the court is best able to assess the circumstances of the parties at the time of the agreement, their circumstances at the time of trial, and the conduct of the parties during the litigation. However, as a practical matter, having to wait until the trial to find out if a fee award can be made may deter attorneys from undertaking the representation of the non-monied spouse, since counsel may not be able to predict whether an award may be made and, if the non-monied spouse has no or limited funds with which to pay counsel and no prospect for a large equitable distribution recovery, counsel may not be willing to undertake the risk of devoting substantial time and energy to a case where no payment will be forthcoming. Accordingly, while the reasoning of the Second Department is sound, it may be preferable for the court to permit interim awards to be made, albeit with the prospect that the monied spouse might be entailed to a credit at the end of the case for the funds paid out, as against whatever equitable distribution award might otherwise have been made, should the court find that the fee waiver is enforceable.
 
C237:2: Actions in Which Awards May be Made

Pursuant to DRL § 237 (subd. a), an award of counsel fees and expenses may be made in an action or proceeding: (1) for an annulment or to declare the nullity of a void marriage; (2) for a separation; (3) for a divorce; (4) to declare the validity or nullity of a judgment of divorce rendered against a spouse who was the defendant in any action outside the State of New York and who did not appear therein, provided that such spouse asserts the nullity of the foreign judgment; (5) to obtain maintenance or distribution of property following a foreign judgment of divorce; and (6) to enjoin the prosecution in any other jurisdiction of an action for divorce. The fifth listed category of qualifying actions or proceedings was added in 2010, effective October 12, 2010. L.2010, ch. 329.

DRL § 237 (subd. b), as revised in 2010, authorizes an award of counsel fees and expenses upon any application to annul or modify an order or judgment for alimony maintenance, distributive award, distribution of property, or for custody, visitation, or maintenance of a child, made pursuant to DRL § 236 or DRL § 240. The 2010 addition of applications seeking to modify maintenance determinations made in orders or judgments remedies an apparent oversight. But the inclusion of modifications of property distributions is puzzling as property distributions have been considered non-modifiable.

DRL § 237 (subd. b) also authorizes counsel fee and expense awards upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation, or maintenance of a child. Thus, where a wife was required to respond to a writ of habeas corpus secured by a husband seeking to enforce visitation rights, it was held permissible for the court to award counsel fees to the wife. People ex rel Palyswiat v. Palyswiat, 84 A.D.2d 633, 444 N.Y.S.2d 279 (3rd Dept. 1981). Likewise, in an action on a separation agreement, where the defendant husband moved for a change of child custody, it was held proper to award counsel fees to the wife to the extent of the fees involved in her defense of the change of custody application. Walder v. Walder, 54 A.D.2d 932, 388 N.Y.S.2d 134 (2nd Dept. 1976).

DRL § 237 (subd. b) authorizes the court to direct only that a spouse or a parent pay the counsel fees or expenses of the other spouse or parent. Where the parents of a deceased father unsuccessfully sought custody, in a habeas corpus proceeding, of a child born out of wedlock who had been surrendered for adoption by the natural mother, it was held that there was no authority to award counsel fees against the petitioner grandparents. Matter of “JJ” v. Family and Childrens Service of Ithaca, Inc., 39 A.D.2d 612, 330 N.Y.S.2d 844 (3rd Dept. 1972). Such an application would not be within DRL § 237 (subd. b) since grandparents are not the spouses of the other party, nor are they parents of the child whose custody is in issue.

Where an action or proceeding is not one expressly included in Section 237, no award of counsel fees may be made thereunder. Actions which do not qualify are often referred to as nonmatrimonial actions. Thus, fees may not be awarded for legal services in connection with bankruptcy proceedings filed by the other spouse. Bragar v. Bragar, 277 A.D.2d 136, 717 N.Y.S.2d 100 (1st Dept. 2000).

Where an award of counsel fees is authorized in a given type of action or proceeding, the existence of a separation agreement which is silent on the subject of counsel fees is not a barrier to the making of an award. Balenske v. Balenske, 73 Misc.2d 405, 342 N.Y.S.2d 183 (Sup.Ct. Onondaga County 1973). Further, in for an award of fees to be precluded by the terms of the agreement, the agreement must expressly preclude an award of fees. Thus, an agreement which provided that the parties “agree not go to a divorce attorney” and that “[t]he final divorce shall be obtained amicably, and with no further litigation on either side” was held not to be preclude an award of counsel fees. Fischman v. Fischman, 209 A.D.2d 916, 619 N.Y.S.2d 198 (3rd Dept. 1994). However, if a valid separation agreement precludes or limits a counsel fee award, the provisions of the agreement should be respected. See Lottridge v. Lottridge, 73 Misc.2d 614, 342 N.Y.S.2d 251 (County Ct. Monroe County 1973). In that case, involving an action to enforce a separation agreement which was incorporated into a foreign divorce judgment, it was held that a provision limiting the husband’s liability for his wife’s attorney fees was not to be ignored even though additional legal services were required by the wife to obtain her rights under the agreement. In more general terms, the courts have consistently held that where a marital agreement, such as a separation agreement, a separation agreement, is not invalid on its face and, by its terms, precludes the award of counsel fees, fees may not be awarded unless and until the agreement is set aside. Klein v. Klein, 246 A.D.2d 195, 676 N.Y.S.2d 69 (1st Dept. 1998); Ravel v. Ravel, 161 A.D.2d 547, 556 N.Y.S.2d 51 (1st Dept. 1990).

Agreement provisions restricting the rights of the parties to seek an award of counsel fees have been narrowly construed. For example, in Koons v. Koons, 212 A.D.2d 370, 622 N.Y.S.2d 242 (1st Dept. 1995), the award of $100,000 in interim counsel fees was sustained, despite the provision in the parties’ prenuptial agreement containing mutual waivers of attorney’s fees “[i]n the event the impending marriage between the parties is terminated by divorce.” Such language did not, by its precise terms, preclude the award of pre-divorce litigation expenses. Likewise, in Pelkey v. Pelkey, 79 A.D.2d 835, 435 N.Y.S.2d 138 (3rd Dept. 1980), appeal denied, 53 N.Y.2d 601, 438 N.Y.S.2d 1027, 420 N.E.2d 981 (1981), a separation agreement between the spouses provided that “in the event either party seeks an action for divorce against the other, ... he or she will bear his or her own legal expenses and make no claim against the other party for the value of such services except that if the husband shall contest an action for divorce pursuant to Section 170(5) of the Domestic Relations Law, the wife may petition the court for legal fees”. The wife subsequently brought an action seeking to rescind the agreement and the husband counterclaimed for a conversion divorce under DRL § 170 (subd. 6). The Appellate Division ruled that it was proper for the trial court to award legal fees to the wife since the agreement addressed only the situation where a party commences an action. Though the agreement proscribed legal fees generally where sought by a plaintiff in a subsequent divorce action, the agreement did not foreclose an award of counsel fees to the party who defends the action. Since the wife had defended against the counterclaim for a conversion divorce, albeit unsuccessfully, a counsel fee award could properly be made.

In a similar vein, in Klein v. Klein, 246 A.D.2d 195, 676 N.Y.S.2d 69 (1st Dept. 1998), an agreement was held to be no bar to the award of interim counsel fees where the agreement provided that “[n]othing herein shall be construed as a waiver or denial of the right of either party to secure payment of attorneys‘ fees as provided by law for any breach by the other party of any provision of this Agreement”. The court reasoned that, while the agreement allowed fees for enforcement proceedings, it did not specifically bar the award of fees for services rendered on matters unrelated to the enforcement of the terms of the agreement.

Where an action or proceeding is not one expressly included in DRL § 237, no award of counsel fees may be made thereunder. Actions which do not qualify are often referred to as non-matrimonial actions. Thus, it is well settled that actions to enforce or rescind agreements between spouses, such as separation agreements or antenuptial contracts, are not matrimonial actions in which awards of counsel fees and expenses may be made. See, e.g., Broadhurst v. Broadhurst, 50 A.D.2d 569, 374 N.Y.S.2d 716 (2nd Dept. 1975) (action for specific performance of separation agreement); Donnarumma v. Donnarumma, 72 A.D.2d 545, 420 N.Y.S.2d 729 (2nd Dept. 1979) (action to rescind separation agreement); Lamborn v. Lamborn, 56 A.D.2d 623, 391 N.Y.S.2d 679 (2nd Dept. 1977), appeal dismissed 42 N.Y.2d 803, 397 N.Y.S.2d 1028, 366 N.E.2d 1364 (1977) (action to enforce antenuptial agreement).

An action for unpaid support and counsel fees due under a separation agreement is an ordinary contract action, and therefore, in the absence of a contractual provision authorizing award of counsel fees, no such award may be made. Cates v. Cates, 54 A.D.2d 858, 388 N.Y.S.2d 303 (1st Dept. 1976). Likewise, a partition action is not a matrimonial action and no award of counsel fees under DRL § 237 may be made in a partition action between former spouses. Davies v. Davies, 65 Misc.2d 480, 318 N.Y.S.2d 97 (Sup.Ct. Monroe County 1971). In Shapiro v. Shapiro, 88 A.D.2d 592, 449 N.Y.S.2d 806 (2nd Dept. 1982), it was held that an action seeking the specific enforcement of a separation agreement provision, incorporated into a foreign divorce, requiring the husband to obtain a religious divorce, was not a matrimonial action in which counsel fees could be awarded to the wife.

On the other hand, an action or proceeding which seeks to reform or modify the support provisions of an agreement between spouses, which agreement was incorporated into a New York judgment of annulment or divorce, is regarded as sufficiently matrimonial in nature as to authorize an award of counsel fees and expenses. Apkarian v. Apkarian, 39 A.D.2d 609, 331 N.Y.S.2d 239 (3rd Dept. 1972); Gyory v. Schaffer, 80 A.D.2d 871, 436 N.Y.S.2d 788 (2nd Dept. 1981). The rationale for this exception is that the nature of the application is such that, if successful, the rights of the parties under the New York judgment would be affected. This exception is not applicable where the agreement was incorporated into a foreign divorce judgment. Where the agreement is incorporated into a foreign divorce judgment, counsel fees may be awarded only if the agreement authorizes an award and, if it does, only to the extent of the authority conveyed by the agreement. Lottridge v. Lottridge, 73 Misc.2d 614, 342 N.Y.S.2d 251 (County Ct. Monroe County 1973); Ringland v. Ringland, 67 Misc.2d 732, 324 N.Y.S.2d 935 (Sup.Ct. Monroe County 1971).

Where a particular action involves matrimonial and non-matrimonial claims, counsel fees may be awarded only with respect to the qualifying matrimonial claims. Thus, services rendered in respect of non-matrimonial claims are not includable. See Ravel v. Ravel, 235 A.D.2d 410, 652 N.Y.S.2d 306 (2nd Dept. 1997); Silverman v. Silverman, 91 A.D.2d 609, 456 N.Y.S.2d 408 (2nd Dept.1972); Marshall v. Marshall, 48 A.D.2d 759, 368 N.Y.S.2d 360 (4th Dept.1975). In Mattana v. Mattana, 79 A.D.2d 702, 434 N.Y.S.2d 267 (2nd Dept.1980), it was held that the trial court had erred in including in a $10,000 counsel fee award to the wife’s attorney the value of services rendered in prior Family Court proceedings and in Civil Court and Appellate Term proceedings involving the defense of an action instituted by the father of the husband. The Appellate Division remanded the case to the trial court for a determination of the amount by which the fee award was to be reduced by the exclusion of services erroneously included. See Soiefer v. Soiefer, 17 A.D.3d 268, 794 N.Y.S.2d 20 (App. Div. 1st Dept. 2005) (error to include in interim counsel fee award compensation for services rendered in Family Court Act Article 10 proceeding).

In Ravel v. Ravel, 235 A.D.2d 410, 652 N.Y.S.2d 306 (2nd Dept. 1997), the court was presented with a situation in which the wife was granted a divorce after a brief inquest; a lengthy trial then followed on the wife’s claim that the parties’ martial agreements were invalid. That trial resulted in a finding that the wife’s challenge to the agreement was without merit and should not have been brought, and in the additional finding that the wife owed the husband over $300,000 pursuant to the terms of the agreement. The wife’s counsel sought an award of counsel fees for his services on the matrimonial component of the action. The Appellate Division concluded that it was appropriate for the request of the wife’s counsel to be denied in view of all of the circumstances. The court noted that the matrimonial portion of the litigation, the only portion for which counsel fees could have been awarded, consumed only the first few minutes of a 23-day trial. In view of the fact that the wife owed the husband such a substantial sum, it would have been inequitable to order the husband to pay the wife’s counsel fees, even for the matrimonial aspects of the matter.

The Court of Appeals has held that an award of counsel fees may made for legal services rendered and fees incurred prior to the commencement of the action. O’Shea v. O’Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8, 711 N.E.2d 193, (1999). Thus, where counsel engages in pre-action voluntary discovery and pre-action negotiations, counsel is not precluded from recovering for those services and may include them in a fee application made in an ensuing matrimonial action. However, the Court’s decision did not address the recoverability of legal fees for services rendered in connection with a previous action or proceeding. If the previous action or proceeding was one in which an award of litigation expenses could have been made, and such an award was made or was not sought, it would appear that considerations of claim preclusion would bar an attempt to seek such fees in a subsequent matrimonial action. This is because New York’s view of claim preclusion is that a judgment in an action is conclusive not only as to the matters actually litigated but also as to any that might have been litigated. Schuykill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N.Y. 304, 165 N.E.2d 456 (1929); see generally Siegel, New York Practice (4th Ed. West), § 457.
 
C237:3: Stage of Proceedings in Which Awards May be Made

An award of counsel fees and expenses may be made at any time or times prior to the final judgment or by order or orders made after final judgment in the modification context. DRL § 237 (subds. a, b), as amended by L.2010, ch. 329. Thus, the statute plainly authorizes an application or applications for temporary or pendente lite counsel fee awards. However, notwithstanding the provision for successive interim counsel fee awards, most courts had generally disapproved of successive applications and successive awards. Thus, in Goldberg v. Goldberg, 46 A.D.2d 887, 361 N.Y.S.2d 394 (2nd Dept. 1974), it was held error to have made a counsel fee award pending trial where there had been a prior temporary counsel fee award and the court had, in making the prior award, permitted an application to be made at trial for an additional award. However, there may be--and have been--circumstances in which courts have granted successive awards. This is usually been where the case turned out to be more protracted, or complex, or the opposing spouse more obstinate, than had been anticipated in the prior award. A case which makes both points--that successive awards are disfavored but are not out of the question under appropriate circumstances--is Aron v. Aron, 216 A.D.2d 98, 628 N.Y.S.2d 102 (1st Dept. 1995). There, the matrimonial court granted a $30,000 interim counsel fee award and, then, granted an additional $30,000 in interim counsel fees but payable only 10 days prior to trial. The delay in payment appears to have been intended to give the wife (or more precisely, her counsel) an incentive to move the matter to trial. The wife appealed arguing that her second application should have been granted without a delay in the payment date. The Appellate Division upheld the matrimonial court’s exercise of discretion, noting the wife had failed to persuade it that the husband has been obstructive or that, the delay in the payment of the second fee award would impede her prosecution of the case.

But 2010 legislation, effective October 12, 2010, makes it clear the Legislature intends for courts to make periodic, and successive, awards in order to be sure that less affluent parties are adequately represented through all stages of the litigation.

An action for divorce or separation abates upon the death of either party. When the action abates, so does the opportunity to obtain ancillary relief. Thus, it has been held that counsel fees may not be awarded following the death of one of the parties. Collins v. Vaine, 79 A.D.2d 847, 434 N.Y.S.2d 505 (4th Dept. 1980); Musso v. Butera, 64 Misc.2d 604, 315 N.Y.S.2d 483 (Sup.Ct. Kings County 1970). Where it is the attorney’s client who has died, the attorney may be able to obtain a recovery of fees by plenary action against the surviving, and formerly adversary, spouse under the doctrine of necessaries. Collins v. Vaine, supra; Musso v. Butera, supra. There is an exception to this abatement concept directly built into the statute. In an annulment action maintained by persons after the death of a spouse, the court may direct the persons maintaining the action to pay counsel fees and litigation expenses of the defendant spouse. DRL § 237 (subd. a). This exception is predicated upon the recognition that various annulment actions may be brought after the death of a spouse by those with an interest to avoid the marriage and it is fair to apply DRL § 237 to such plaintiffs as they are the real parties in interest.

A reconciliation or settlement between the parties does not, by itself, preclude an application for counsel fees made within the context of a pending action. In Sadofsky v. Sadofsky, 78 A.D.2d 520, 431 N.Y.S.2d 594 (2nd Dept. 1980), the parties placed a settlement stipulation on the record, which was followed by an application for fees by the attorney for the wife. The application was opposed by a new attorney who defended the application for both parties. The court held that it was proper to make a fee award, notwithstanding the settlement of the action, since the statute does not require a contrary result, and because applications for counsel fees may be prosecuted by an attorney in his or her own name in the same proceeding. DRL § 237, as amended by L.1978, c. 444. In Sassower v. Barone, 85 A.D.2d 81, 447 N.Y.S.2d 966 (2nd Dept. 1982), the parties reconciled after a counsel fee award had been made and after the wife appealed therefrom on the ground of inadequacy. Because the fee award had been made before the effective date of the amendment permitting attorneys to prosecute fee applications under their own name, the withdrawal of the appeal by the wife, as part of the reconciliation, was held to give rise to an estoppel precluding the wife and husband from raising the defense of res judicata of the prior award. However, the Appellate Division inferentially suggested that, in view of the amendment allowing attorneys to independently prosecute counsel fee applications, attorneys would be able to pursue appeals from allegedly inadequate awards even over an objection from their clients, or former clients. For an example of a case in which the attorney, but not the client, appealed, see Ravel v. Ravel, 235 A.D.2d 410, 652 N.Y.S.2d 306 (2nd Dept. 1997).

While a settlement between the parties does not, by itself, preclude an application for counsel fees made within the context of a pending action, the action must be pending for an application to be made and considered. If the action is no longer pending, as the result of a settlement, a counsel fee award may be precluded as the result of another rule which holds that, after judgment, the only counsel fee awards that can be made are for services rendered in post-judgment proceedings.

These principles are highlighted by Taylor v. Taylor, 120 A.D.2d 355, 502 N.Y.S.2d 7 (1st Dept. 1986). There, the wife, represented by counsel, brought an action for divorce in New York. After one year of litigation, the wife, over her counsel’s objections, agreed to a settlement, which included the discontinuance of the New York action and the obtaining of a divorce in the Dominican Republic. While the wife’s attorneys refused to sign a substitution of counsel, the attorneys did not seek leave to withdraw and an assessment of their fees. The spouses proceeded to obtain the foreign divorce and filed a stipulation of discontinuance of the New York action, a stipulation which was predicated upon the fact that a foreign divorce had been obtained. After this stipulation was filed, the wife’s attorneys then moved for leave to withdraw, for a judicial determination of their fees, and for an order directing the husband to make payment.

The Appellate Division held that it was too late for the wife’s attorneys to seek a counsel fee award. Since the action had been discontinued, the courts no longer had authority to award counsel fees for services rendered prior to the stipulated discontinuance.

A noteworthy exception to the rule that a post-judgment application cannot be made for an award of fees attributable to pre-judgment services was made in Gilmore v. Gilmore, 138 A.D.2d 347, 525 N.Y.S.2d 639 (2nd Dept. 1988). There, the wife’s counsel had applied, prior to judgment, for an award of counsel fees. But, in the judgment, the application was denied on the ground that the application was not supported by sufficient facts, with leave granted to reapply on proper papers. The wife’s attorneys did reapply, an award was made, with the husband objecting on the ground that, because judgment had already been entered, it was too late to award fees for pre-judgment services. The Appellate Division rejected this contention, holding that the award was justified because the application was made prior to judgment and the court retained, in the judgment, limited jurisdiction to entertain the reapplication.

An application for counsel fees must generally be during the course of the action for which fees are sought. Where counsel for a party sought recovery, under DRL § 237, for counsel fees for services rendered in a prior Family Court proceeding, it was held that such an award was unauthorized. Abrusci v. Abrusci, 79 A.D.2d 980, 434 N.Y.S.2d 722 (2nd Dept. 1981). Similarly, where final judgment denying counsel fees had been entered in a divorce action, the Family Court, to which proceedings in the divorce action had been referred, lacked jurisdiction to award counsel fees for services rendered in the referred proceedings. Hockenbrought v. Hockenbrought, 44 A.D.2d 767, 354 N.Y.S.2d 257 (4th Dept. 1974). In one case, the court reserved decision on the issue of counsel fees and alimony [now maintenance] pending a United States Tax Court decision as to the wife’s tax liability. As to counsel fees, this was held improper since the counsel fees ultimately were awarded after the final judgment. Marshall v. Marshall, 48 A.D.2d 759, 368 N.Y.S.2d 360 (4th Dept. 1975). The parties, of course, can agree to allow a counsel fee determination to be made at a later date. In State ex rel. Schack v. Schack, 48 A.D.2d 791, 369 N.Y.S.2d 159 (1st Dept. 1975), appeal denied 37 N.Y.2d 710, 378 N.Y.S.2d 1025, 340 N.E.2d 752 (1975), the parties agreed to allow the issue of counsel fees to be determined by affidavit submitted by way of motion and this agreed upon procedure was sustained and enforced. Absent an agreement of the parties to the contrary, DRL § 237 does not authorize the court to award fees to a former counsel for services rendered in a prior action. Caplan v. Caplan, 38 A.D.2d 572, 328 N.Y.S.2d 364 (2nd Dept. 1971); Provenzano v. Provenzano, 71 A.D.2d 618, 418 N.Y.S.2d 140 (2nd Dept. 1979).

The Court of Appeals has held that an award of counsel fees may made for legal services rendered and fees incurred prior to the commencement of the action. O’Shea v. O’Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8, 711 N.E.2d 193, 1999 WL 251347 (1999). Thus, where counsel engages in pre-action voluntary discovery and pre-action negotiations, counsel is not precluded from recovering for those services and may include them in a fee application made in an ensuing matrimonial action. However, the Court’s decision did not address the recoverability of legal fees for services rendered in connection with a previous action or proceeding. If the previous action or proceeding was one in which an award of litigation expenses could have been made, and such an award was made or was not sought, it would appear that considerations of claim preclusion would bar an attempt to seek such fees in a subsequent matrimonial action. This is because New York’s view of claim preclusion is that a judgment in an action is conclusive not only as to the matters actually litigated but also as to any that might have been litigated. Schuykill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N.Y. 304, 165 N.E.2d 456 (1929); see generally Siegel, New York Practice (4th Ed. 1999), § 457.

Counsel fees may properly be awarded in post-judgment proceedings involving appeals and enforcement. However, post-judgment applications for fees must be based upon legal services and expenses incurred after rendition of the final judgment. The court, in determining a post-judgment counsel fee application, may not award fees for services rendered prior to judgment. Thus, for example, where a separation judgment has been rendered, the court in a subsequent divorce action may not award counsel fees for services dating back to the initial marital difficulty. Roscini v. Roscini, 45 A.D.2d 254, 357 N.Y.S.2d 227 (4th Dept. 1974).
 
C237:4: Interim Counsel Fees

It is well settled that the court may, by order, direct the payment of counsel fees for a party during the pendency of a matrimonial action. The purpose of such an award is to enable a financially disabled spouse to obtain funds necessary to prosecute or defend the action. Cook v. Cook, 95 A.D.2d 768, 463 N.Y.S.2d 248 (2nd Dept. 1983); Furman v. Furman, 18 A.D.2d 659, 235 N.Y.S.2d 408 (2nd Dept. 1962); see also Walsh v. Walsh, 92 A.D.2d 345, 462 N.Y.S.2d 71 (3rd Dept. 1983).

Since the enactment of the Equitable Distribution Law, courts have become increasingly sensitive to the need to assure that less affluent spouses have the ability to obtain competent and experienced counsel equivalent to counsel which may be available to the more affluent spouse. The decisions granting interim fees often remark upon the disparity of the resources between the applying spouse and the spouse from whom fees are sought. Assini v. Assini, 11 A.D.3d 417, 783 N.Y.S.2d 51 (2nd Dept. 2004); Shanon v. Patterson, 294 A.D.2d 485, 742 N.Y.S.2d 653 (2nd Dept. 2002); Campanaro v. Campanaro, 292 A.D.2d 330, 738 N.Y.S.2d 74 (2nd Dept. 2002); Sapir v. Sapir, 288 A.D.2d 25, 732 N.Y.S.2d 169 (1st Dept. 2001). As a result of 2010 legislation, there is now a presumption that the less affluent spouse should be awarded fees and expenses. Courts are instructed to use their discretion to assure that each party is adequately represented and that, where awards are appropriate, awards are made on a timely basis, pendente lite, to assure that there is adequate representation throughout the proceeding. DRL § 237 (subd. a), as amended by L.2010, ch. 329, effective October 12, 2010.

Even prior to the 2010 legislation, the Appellate Division, Second Department, in recognition of the importance of assuring that the non monied spouse is able to litigate the action on an equal footing with the monied spouse, held that an award of interim fees to the non monied spouse is generally warranted where there is a significant disparity in the financial circumstances of the parties. Prichep v. Prichep, 52 A.D.3d 61, 858 N.Y.S.2d 667 (2nd Dept. 2008). The court held that an application for interim counsel fees by the non-monied spouse should not be denied or deferred until trial (which is the functional equivalent of a denial) unless the matrimonial court articulates good cause for that disposition in its decision. In Prichep, the wife’s counsel had applied for interim fees and submitted in support of the application detailed billing records that showed that the wife’s attorneys had performed, and had bill the wife for, legal work valued at $159,000. While the husband argued that the wife had resources due to the pendente lite maintenance award, the Appellate Division held that the wife could not be expected to exhaust all, or a large portion, of the finite resources available her to pay counsel, while the husband, who had financial resources far exceeding the wife’s, was able to pay his counsel without impact upon his lifestyle.

The husband in Prichep also contended that the wife had “over litigated” the case. While the wife had asked for interim fees of $35,000 and, upon renewal of the motion, for another $40,000, the matrimonial court denied the application, without prejudice to renewal at trial, where the financial circumstances of the parties, the nature and complexity of the case, the fees billed, services rendered, and legal expertise of the wife’s counsel could all be evaluated. The Appellate Division reversed and ordered that the fees, totaling $75,000, be paid by the husband directly to counsel for the wife. The Appellate Division stated that, while there were sharp disputes regarding whether the husband’s actions and litigation tactics unduly prolonged the action, and whether all of the services rendered by the wife’s attorneys were necessary, given the disparity in financial circumstances, it was appropriate to award the wife at least some significant amount of fees on an interim basis, while allowing the trial court to decide which party should ultimately bear the burden of the wife’s legal fees.

In Charpie v. Charpie, 271 A.D.2d 169, 710 N.Y.S.2d 363 (1st Dept. 2000), the appellate court, in holding that the matrimonial court had improperly denied the wife’s application for interim counsel fees, held that, when considering an application for interim counsel fees, the court must consider the relative financial circumstances of both parties. The court observed that such consideration is intended not only to permit determination of one side’s need and the other’s ability to pay; it is also to ensure that a spouse with substantially greater financial resources cannot use those resources against the less powerful spouse to obtain the outcome the wealthier spouse desires.

In Sassower v. Barone, 85 A.D.2d 81, 447 N.Y.S.2d 966 (2nd Dept. 1982), the court, in rejecting a claim that a retainer agreement which based the fee upon a billing rate of $100 per hour was per se unconscionable, noted that to declare such a fee arrangement invalid would permit a wealthy spouse to obtain the services of highly paid (and presumably more seasoned and superior) attorney, while relegating an indigent spouse to counsel willing to take on the representation on a poverty basis. The court forthrightly recognized that such a prospect would create a very real risk of inequality of representation which should not be encouraged in matrimonial litigation.

Previous statutory language, added in 1987, mandated counsel fees where it is shown that the award is required “to enable the petitioning party to property proceed”. However, this amendment did not, by itself, resulted in any major change in judicial attitudes toward counsel fee awards. While the purpose of the statutory revision was to compel the judiciary to make an interim award where the award is necessary for the petitioning party to properly proceed, few judges would deny an award once it was found that an award was needed. The key item--both before and after the amendment--was to convince the court that the award is necessary. If the court was not convinced that an award is necessary to enable a party to properly proceed, the mandate to make the award disappears and, further, the reason to make the award, as a discretionary matter, also disappears. Conversely, if the court found that an award is necessary for a party to properly proceed, the failure to make an award that is so necessary would doubtless constitute an abuse of discretion, even if the making of the award was only a matter of discretion and not a mandate. The 2010 legislation makes clearer the legislative intent that counsel fees be presumptively awarded to less affluent spouses.

Where the marital assets are either numerous or valuable, where the issues are complex, or where considerable effort and expertise will be required to properly prepare the action for trial, an appropriate award of counsel fees should be made. Wechsler v. Wechsler, 293 A.D.2d 379, 740 N.Y.S.2d 608 (1st Dept. 2002); Ahern v. Ahern, 94 A.D.2d 53, 463 N.Y.S.2d 238 (2nd Dept.1983). In Hinden v. Hinden, 122 Misc.2d 552, 472 N.Y.S.2d 248 (Sup.Ct. Nassau County 1983), the court awarded interim counsel fees of $15,000 to counsel for the wife with leave to apply for additional allowances both prior to or during trial. The court held that such a sizeable fee award was appropriate in view of the large sums at issue, the complexity of the issues, the standing of counsel, and the failure of the husband to disclose his financial arrangements with his own attorney. Indeed, the court ruled that the husband’s failure to disclose his financial arrangement with his attorney led to an inference that his prospective legal expenses were not substantially less than those demanded on behalf of the wife. In Pacheco v. Pacheco, 107 A.D.2d 741, 484 N.Y.S.2d 102 (2nd Dept. 1985), the Appellate Division sustained a $4,000 interim counsel fee award where the proceedings to date had been voluminous and where the wife persuasively argued that the defendant husband may have secreted his assets and income in corporate entities. See also Ahern v. Ahern, 94 A.D.2d 53, 463 N.Y.S.2d 238 (2nd Dept. 1983).

In Block v. Block, 296 A.D.2d 343, 746 N.Y.S.2d 15 (1st Dept. 2002), the appellate court upheld the an unallocated interim award for counsel and expert fees in the amount of $35,000. Such fees were intended to assist the wife in preparing for the forthcoming trial to determine the value of the fees due the husband, an attorney, for his representation of clients in personal injury cases. The appellate court ruled that the trial court had properly balanced the relative financial circumstances of the parties as well as the nature and extent of the issues to be litigated, as to which that court was uniquely positioned to assess. However, as discussed in Practice Commentary C237B:6, the Appellate Divisions struck out a $15,000 fee award which had been granted to the wife to cover the prospective cost to her of defending against the husband’s appeal of the $35,000 unallocated award.

The relative financial circumstances of the parties are an important factor in a determination of an application for an interim counsel fee award. Under the 2010 statute, there is a rebuttable presumption that an award should be made in favor of the less affluent spouse. An interim award may be refused where a party requesting has access to sufficient funds to pay his or her own counsel, see Kerzner v. Kerzner, 281 A.D.2d 215, 726 N.Y.S.2d 388 (1st Dept. 2001) (wife had access to $2 million from sale of former marital residence), or where he or she has previously paid his or her counsel from his or her own funds. See Gruber v. Gruber, 43 A.D.2d 917, 352 N.Y.S.2d 463 (1st Dept. 1974).

Interim counsel fees had been denied where the movant failed to show that the movant lacks sufficient personal funds to compensate counsel. See Grant v. Grant, 299 A.D.2d 521, 751 N.Y.S.2d 40 (2nd Dept. 2002) (interim counsel fee award of $25,000 set aside on appeal on ground that wife had failed to demonstrate that she lacked sufficient funds of her own to compensate counsel at this stage of the litigation).

There had been some reluctance to award interim counsel fees, absent a showing of necessity, since at trial a better assessment of the parties’ respective financial circumstances and of the value of counsel’s services may be obtained. Perless v. Perless, 33 A.D.2d 1013, 308 N.Y.S.2d 116 (1st Dept. 1970). However, a party is not required to exhaust his or her own capital resources in order to qualify for an interim counsel fee award. Hyman v. Hyman, 56 A.D.2d 337, 392 N.Y.S.2d 455 (1st Dept. 1977); Lubin v. Lubin, 66 A.D.2d 677, 411 N.Y.S.2d 21 (1st Dept. 1978); Hinden v. Hinden, 122 Misc.2d 552, 472 N.Y.S.2d 248 (Sup.Ct. Nassau County 1983).

On a motion for an award of counsel fees, the supporting papers should discuss the nature of the services rendered or to be rendered, the necessity therefor, the amount of time devoted by counsel, the amount customarily charged by counsel for similar services, counsel’s professional standing, and the fee arrangements and payments by the client. Indeed, the statute, as revised in 2010, requires that both sides and their counsel file affidavits detailing the financial agreement between the party and the attorney, including a statement as to the amount of any retainer, the amounts paid and the amounts owed, the hourly amount charged by the attorney, the amounts paid or to be paid to any experts, and any additional costs, disbursements or expenses. It is unclear when these affidavits are to be filed and it is also unclear whether the affidavits are to be filed one-time only or periodically. Perhaps this will be addressed by court rule; logically, to keep with the legislative intent, it may be that the affidavits need be filed upon the making of any fee application.

Interim counsel fees will be denied where the movant fails to adequately document the legal services already rendered. Darvas v. Darvas, 242 A.D.2d 554, 662 N.Y.S.2d 87 (2nd Dept. 1997). In order to properly document the services already provided, counsel should submit time records or provide a written breakdown of the services rendered and the time expended relative to each service. See Gober v. Gober, 282 A.D.2d 392, 724 N.Y.S.2d 48 (1st Dept. 2001), where the Appellate Division held that it was error for the trial court to have denied the wife’s counsel’s application for an additional interim award of $266,384 in attorney and expert fees, even though the motion was made just three months after the wife had been awarded $150,000 for legal expenses and $70,000 for expert fees, bringing the total award from the commencement of the action to $415,000 for her attorneys and $128,500 for the services of experts. The appellate court noted that the husband’s present attorneys had been paid some $745,000 and he had previous counsel who presumably had been paid as well. Thus, the husband’s counsel fees were greatly in excess of the wife’s. The appellate court noted that both parties had been contentious but that neither was more responsible for the large litigation costs than the other. Since the wife had no assets, other than her support, to pay counsel and the husband had millions and his assets continued to grow, the appellate court concluded that the wife’s request for additional fees and expenses should have been granted.

Though DRL Section 237 does not provide express direction for the process by which an order allowing interim counsel fees may be obtained, it is accepted practice that such an order may be applied for by motion made on notice, either brought on by notice of motion or order to show cause. Indeed, due process required that the party sought to be charged receive notice and an opportunity to be heard. See Leibowits v. Leibowits, 93 A.D.2d 535, 462 N.Y.S.2d 469 (2nd Dept. 1983). However, in Cook v. Cook, 95 A.D.2d 768, 463 N.Y.S.2d 248 (2nd Dept. 1983), it was held that counsel fees could be awarded on a motion even though counsel fees were not expressly requested in the moving papers. However, the counsel fee award made in that case was vacated due to the failure of the party who received the award to demonstrate an inability to pay for those fees. It would seem to be a rare case that counsel fees are properly awardable absent a specific request for such relief and supporting information. Indeed, the moving papers must specifically disclose information concerning the parties’ respective financial circumstances, the services rendered, the fees paid, the time expended by counsel, counsel’s professional standing, the amount customarily charged by counsel for similar services, and the fee arrangement with the client. It is one thing if all this information is provided in supporting affidavits but a formal request is inadvertently left out of the notice of motion or order to show cause. Such a technical failure may be disregarded where the adverse party was not deprived of a fair opportunity to dispute the matter. However, if there is no formal request and the necessary information is not supplied, an award may be inappropriate.

In this regard, it is important to take note of the provisions of Section 202.16 of the Uniform Civil Rules for the Supreme Court and the County Court 22 N.Y.C.R.R. § 202.16. That rule, among other things, provides for the form of a sworn net worth statement, which is to be exchanged or served and filed pursuant to DRL § 236. The net worth statement requires disclosure of the amount of any counsel fee request, amounts paid to counsel, and agreements with counsel concerning fees. A copy of the retainer agreement or other written agreement pertaining to the payment of legal fees must be annexed to the net worth statement. Similarly, the basis for any request for accountant and appraisal fees must be divulged.

The form net worth statement must accompany any motion for interim financial relief in a matrimonial action. Indeed, the motion may not be heard unless the official form affidavit is supplied. Further, no motion for counsel fees may be heard unless the moving papers include the affidavit of the movant’s counsel stating the moneys, if any, received on account of fees from the client or any third person, the moneys promised by the client or any third person to the attorney, and the agreement the attorney made with the client or any third person concerning payment of fees. 22 N.Y.C.R.R. § 202.16 (subd. k).

The requirements concerning the submission of form net worth statements and attorney affidavits are to be strictly enforced. It is error for a court to consider the merits of a counsel fee application where the attorney for the movant has not submitted the required attorney’s affidavit. See, e.g., Stewart v. Stewart, 96 A.D.2d 939, 466 N.Y.S.2d 389 (2nd Dept. 1983); Lewin v. Lewin, 91 A.D.2d 649, 457 N.Y.S.2d 92 (2nd Dept. 1982); Suter v. Suter, 91 A.D.2d 574, 457 N.Y.S.2d 63 (1st Dept. 1982); Prince v. Prince, 114 Misc.2d 695, 452 N.Y.S.2d 534 (Sup.Ct. Nassau County 1982).

Interim counsel fee applications are usually determined on the basis of the papers submitted and without an evidentiary hearing. Conducting evidentiary hearings on temporary applications may require the court and the parties to devote resources and energies to interlocutory matters and delay the final resolution of the matter. For that reason, such hearings are generally to be avoided. However, there have been particular circumstances where the courts have directed evidentiary hearings on interim counsel fee applications. Such hearings may be appropriate where an award is appropriate but the record needs to be clarified as to the extent of the award. Rather than denying the award entirely, and thus potentially frustrate a needy spouse’s ability to properly litigate the case, directing a hearing, and keeping the hearing within manageable limits, may be an appropriate alternative. See Smith v. Smith, 277 A.D.2d 531, 715 N.Y.S.2d 508 (3rd Dept. 2000) (husband had failed to pay interim support and had been held in contempt; attorney detailed over $56,000 in legal expenses alleged to be attributable to husband’s efforts to prolong and complicate the litigation; however, because the court found the record insufficient to adequately assess the relative financial situations of both parties and the value of the legal services, it ordered a hearing on the issue of interim fees); but see Cervera v. Bressler, 50 A.D.3d 837, 855 N.Y.S.2d 658 (2nd Dept. 2008) (in child custody litigation,hearing ordered on allocation between parties of fees of attorney for child).

In Waterman v. Waterman, 128 Misc.2d 665, 490 N.Y.S.2d 436 (Sup.Ct. Suffolk County 1985), the court held that, on a motion for interim counsel and expert fees, the court should examine the sufficiency of the matrimonial causes of action and, if the complaint is insufficient, an application by the plaintiff for interim counsel and expert fees should be denied. The court reasoned that since equitable distribution is available only if the marriage is dissolved, it would be unwise and inequitable to compel a defendant to pay for services to be rendered in the preparation of a baseless action. However, in Waterman, the court was dealing with a complaint it found to be insufficiently pleaded. The Waterman rule is sensible where the plaintiff has failed to even state a cause of action for termination of the marriage and the defendant has not sought termination of the marriage. If the defendant has counterclaimed, and the counterclaim is legally sufficient, the rationale for denying the award would disappear. Further, if the plaintiff’s complaint is legally sufficient, an award should not be precluded. The plaintiff should not be compelled to demonstrate a probability of success on the matrimonial merits. As is the case with temporary spousal support, if the movant’s matrimonial claims are sufficient on the face, the burden should fall on the party resisting the motion to demonstrate that those claims are not meritorious. See Pica v. Pica, 70 A.D.2d 931, 417 N.Y.S.2d 528 (2nd Dept. 1979); Nobel v. Nobel, 49 A.D.2d 850, 373 N.Y.S.2d 615 (1st Dept. 1975).
 
C237:5: Post-Trial Awards

DRL Section 237 permits the court, in the final judgment, to include provisions with respect to the payment by one party of the other party’s counsel fees and litigation expenses. In rendering a determination on the issue of counsel fees and expenses, the court is to consider the circumstances of the case and of the respective parties. The court must review the financial circumstances of the parties and then fairly allocate the burden of paying fees and expenses as between the parties. The court is not required to place the full financial burden of the costs and expenses of the litigation upon one party, even if that party did not prevail. Pokress v. Pokress, 71 Misc.2d 171, 335 N.Y.S.2d 861 (Sup.Ct. Westchester County 1972); see also Alwardt v. Alwardt, 41 A.D.2d 592, 340 N.Y.S.2d 209 (4th Dept. 1973).

In determining an application for fees, the courts often look to whether the party seeking fees was subjected to higher fees and expenses due to the litigation activity of the other spouse. The issue is not which party made the most motions since the applications to the court may have been made necessary by the conduct of the adverse party. Thus, in Love v. Love, 250 A.D.2d 739, 673 N.Y.S.2d 175 (2nd Dept. 1998), the appellate court set aside an award of $25,000 in counsel fees to the wife. While the trial court granted the award in light of the husband’s filing of motion prior to trial, the appellate court held that the husband was not obstructionist and most of his motions were necessitated by the wife’s obstructionist and dilatory tactics. See also Skiff-Murray v. Murray, 305 A.D.2d 751, 760 N.Y.S.2d 564 (3rd Dept. 2003) (mother not awarded counsel fees in child support proceedings in light of father’s substantial obligations for arrears and future support, excessive litigation of the issues by mother and mother’s failure to cooperate with the father in obtaining transcripts of the hearing); Farrell v. Cleary-Farrell, 306 A.D.2d 597, 761 N.Y.S.2d 357, 3 A.L.R.6th 803 (3rd Dept. 2003) (in assessing requests for counsel fees, including appellate fees, courts should consider the financial circumstances of both parties, the relative merits of the parties’ positions, the nature and extent of the services rendered, and the complexity of the issues involved); Harrington v. Harrington, 300 A.D.2d 861, 752 N.Y.S.2d 430 (3rd Dept. 2002) (counsel fee award appropriate where it was based, in part, on husband’s attempts to wear down or financially punish the wife through prolonging the litigation).

A party who has engaged in conduct resulting in unnecessary litigation may be denied an award of an attorney’s fee and the other party, who was caused incur otherwise unnecessary legal fees, may recovery such fees. Chamberlain v. Chamberlain, 24 A.D.3d 589, 808 N.Y.S.2d 352 (2nd Dept. 2005). Likewise, the award of substantial fees may be appropriate, despite a sizeable equitable distribution award, where the titled spouse engaged in obstructionist tactics or discovery misconduct, as by refusing to timely comply with discovery requests and refusing to pay expert valuation fees, and that misconduct resulted in an unnecessary escalation of litigation costs. See Johnson v. Chapin, 12 N.Y.3d 461, 881 N.Y.S.2d 373, 909 N.E.2d 66 (2009) (award of $885,000 in legal and expert fees affirmed in light to parties’ financial conditions and the delay attributable to husband’s obstructionist tactics); Schorr v. Schorr, 46 A.D.3d 351, 848 N.Y.S.2d 614 (1st Dept. 2007) (award of $100,000 in fees affirmed on appeal). See also Weinstein v. Weinstein, 18 A.D.3d 246, 795 N.Y.S.2d 523 (1st Dept. 2005) (award of $300,000 in fees affirmed where, though wife had received substantial distributive award, she had been forced to use much of it towards legal expenses and husband was far more able to pay legal fees and his substantial resources were a significant factor in achieving resolution of custody issues); Grumet v. Grumet, 37 A.D.3d 534, 829 N.Y.S.2d 682 (2nd Dept. 2007) (wife’s counsel fee award reduced by half on appeal to approximately $130,000 due to large distributive award and her possession of substantial assets which were sufficient to enable her to pay a significant portion of her litigation expenses).

The amount of the property available to each party is a critical factor, including the extent of an equitable distribution award. Where the parties’ financial circumstances at the end of the case are similar, counsel fees may be denied. See, e.g. Chase v. Chase, 208 A.D.2d 883, 618 N.Y.S.2d 94 (2nd Dept. 1994). In Chalif v. Chalif, 298 A.D.2d 348, 751 N.Y.S.2d 197 (2nd Dept. 2002), the wife was awarded $25,000 in counsel and expert fees, even though her distributive award exceeded $2,500,000 and even though court found her counsel fees to be excessive. On the other hand, even if a distributive award is not so large as to preclude an award of counsel fees, the distributive award may impact the amount of the counsel fees award. Carniol v. Carniol, 306 A.D.2d 366, 762 N.Y.S.2d 619 (2nd Dept. 2003) (counsel fee award reduced on appeal from $94,590.23 to $50,000 in view of $321,654 distributive award and fact that wife, for whom award was made, holds master’s degree in business and was capable of being self-supporting).

In passing upon an application for an award made during or after trial, the court should base its determinations upon the testimonial and other trial evidence as to the financial conditions of the parties. Fomenko v. Fomenko, 50 A.D.2d 712, 374 N.Y.S.2d 882 (4th Dept. 1975); see also Ryan v. Ryan, 92 A.D.2d 889, 459 N.Y.S.2d 863 (2nd Dept. 1983). A showing of indigency is not a prerequisite for an award of counsel fees. Decabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 524 N.Y.S.2d 176, 518 N.E.2d 1168 (1987). A court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions. Johnson v. Chapin, 12 N.Y.3d 461, 881 N.Y.S.2d 373, 909 N.E.2d 66 (2009); Decabrera v. Cabrera-Rosete, supra.

Financial considerations are not the sole criteria of the determination. Relevant as well are the value of the services, as measured by the standing of counsel, the time devoted to the action, the nature of the services, the complexity of the matters, and the results achieved. Counsel fees generally may not be refused without affording the requesting party or his or her attorney an opportunity to present proof as to the reasonable value of the services rendered. Edelstein v. Edelstein, 53 A.D.2d 595, 385 N.Y.S.2d 80 (1st Dept. 1976). In presenting such proof, counsel must be certain, especially if the request is sizeable, to present documentation as to the time devoted to the action and the services rendered. Baecher v. Baecher, 80 A.D.2d 629, 436 N.Y.S.2d 325 (2nd Dept. 1981), appeal dismissed 53 N.Y.2d 605, 440 N.Y.S.2d 1025, 422 N.E.2d 834 (1981). There must be appropriate evidence of the nature of the legal services provided, the amount of time spent or the reasonable value of the services. Schultz v. Schultz, 309 A.D.2d 1020, 765 N.Y.S.2d 676 (3d Dept. 2003). No award may be made at all where appropriate evidence as to the nature and value of the services is not offered. McLane v. McLane, 209 A.D.2d 1001, 619 N.Y.S.2d 899 (4th Dept. 1994).

The Appellate Division, First Department, has held that it is improper to award the more affluent spouse counsel fees to offset the litigation costs incurred in defense of unsupported claims. While engaging in wasteful litigation may reduce the counsel fee award to the less affluent spouse, it does not warrant an affirmative counsel fee award in favor of the more affluent spouse. Ruling in Silverman v. Silverman, 304 A.D.2d 41, 756 N.Y.S.2d 14 (1st Dept. 2003), the court stated that such an award to the more affluent spouse would not “level the playing field” but would merely serve to punish a spouse for what the court viewed as wasteful, frivolous litigation. The court noted that an attorney fee award of such a punitive nature is permissible, not under DRL 237, but only under the court rules governing sanctioning of frivolous litigation conduct. See 22 N.Y.C.R.R. § 130-1.1(c). The court rules authorize an award of counsel fees where conduct by a party or attorney is completely without merit or is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another.

In Havell v. Islam, 301 A.D.2d 339, 751 N.Y.S.2d 449 (1st Dept. 2002), leave to appeal denied, 100 N.Y.2d 505, 763 N.Y.S.2d 811, 795 N.E.2d 37 (2003), the court held that it would not be just to require the wife to pay the husband’s attorneys’ fees where husband had engaged in a vicious attack on the wife, attempting to kill her.

As a general proposition, a party resisting a counsel fee application is entitled to an evidentiary hearing as to the extent and value of the attorney’s services. Redgrave v. Redgrave, 304 A.D.2d 1062, 759 N.Y.S.2d 233 (3rd Dept. 2003); Nee v. Nee, 240 A.D.2d 478, 658 N.Y.S.2d 440 (2nd Dept. 1997). The court may not simply act on the basis of conflicting affidavits and written net worth statements. Hansen v. Hansen, 86 A.D.2d 859, 447 N.Y.S.2d 323 (2nd Dept. 1982). The party resisting the fee application generally has the right to cross-examine the attorney applying for the fees. Ames v. Ames, 212 A.D.2d 653, 622 N.Y.S.2d 774 (2nd Dept. 1995). However, the parties may agree to permit the issue of the extent and value of the attorney’s services to be determined upon the basis of affidavits. If there is such a stipulation, an evidentiary hearing is not required. Burns v. Burns, 193 A.D.2d 1104, 598 N.Y.S.2d 888 (4th Dept. 1993), modified on other grounds, 84 N.Y.2d 369, 618 N.Y.S.2d 761, 643 N.E.2d 80 (1994). Even if the parties agree to permit the issue to be determined upon the basis of submitted papers, if the submissions are not sufficiently developed to permit an appellate court to properly evaluate the counsel fee determination made, the court may direct an evidentiary hearing in any event. Phyfe v. Phyfe, 86 A.D.2d 535, 447 N.Y.S.2d 674 (1st Dept. 1982).

The court may dispense with a hearing where the party who has demanded it has engaged in harassing litigation conduct and has been overly litigious. Hootnick v. Cohen, 193 A.D.2d 1092, 598 N.Y.S.2d 884 (4th Dept. 1993). In such a circumstances, the court may properly protect itself and the applying party from the harm created by a hearing which is being sought merely to create a vehicle for engaging in additional frivolous litigation conduct. The court may also dispense with a hearing where the parties did not insist upon it and the award is based upon the prevailing rate in the locality. Gundlach v. Gundlach, 223 A.D.2d 942, 636 N.Y.S.2d 914 (3rd Dept. 1996).

The Appellate Division, Second Department, has held that the failure of the party opposing the fee application to specifically request a hearing does not result in the waiver of his or her right to a hearing. Pfluger v. Pfluger, 35 A.D.3d 828, 828 N.Y.S.2d 118 (2nd Dept. 2006). Note also that in the cited case, the wife, who was the client of the attorney seeking a fee award, objected to the fee request, setting forth her dispute with the services provided. The husband expressly relied on the wife’s objections and that was sufficiently to trigger the obligation to hold a hearing on the husband’s objection. Of interest, the trial court had awarded fees without a hearing and only the husband, not the wife, appealed, perhaps because the award, or most of it, was payable by him.

A party resisting a fee application cannot thereby inflict additional costs and expenses upon the applying party and applying counsel with impunity. In O’Shea v. O’Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8, 711 N.E.2d 193 (1999), the Court of Appeals took a large step towards allowing the matrimonial courts to award counsel fees incurred in relation to a counsel fee application. The Court held that where the more affluent spouse has tried to wear down or financially punish the opposition by recalcitrance or by prolonging the litigation, and, as part of such conduct, has required the less affluent spouse and his or her counsel to submit a hearing on the issue of counsel fees, the matrimonial court may award the less affluent spouse legal fees for the services incurred in connection with the hearing. It should be noted that a mere request for a hearing, by itself, does not carry with it a label of intransigence. Further, the Court of Appeals emphasized that awards for legal services for fee hearings should not be routinely granted.

Likewise, the Second Department has also held that, while awards for services provided in the making of fee applications are not to be routinely expended or freely granted, such awards are permissible in appropriate cases. Rospigliosi v. Abbate, 31 A.D.3d 648, 819 N.Y.S.2d 285 (2nd Dept. 2006). The court suggested, based upon O’Shea, that appropriate circumstances are where the more affluent spouse has tried to wear down or financially punish the opposition by recalcitrance or by prolonging the litigation. In making this determination, the Second Department reconsidered, and abrogated, earlier cases to the contrary, such as Getman v. Getman, 156 A.D.2d 686, 549 N.Y.S.2d 161 (2nd Dept. 1989).

It is manifest that a counsel fee application made during or after trial may not be prosecuted on an ex parte basis. Thus, in Marocco v. Marocco, 53 A.D.2d 707, 383 N.Y.S.2d 939 (3rd Dept. 1976), where no application for counsel fees was made until several days after the completion of testimony and without notice, it was held that proper practice, as well as fair play and substantial justice, required that notice of the application be given to the adverse party.
 
C237:6: Counsel Fees for Appellate Proceedings

DRL Section 237 provides that, in designated actions and proceedings, the court may direct one spouse to pay such sums as needed to enable the other “to carry on or defend” the action or proceeding. DRL § 237 (subd. a). In allowing for counsel fee and expense awards in custody or modification matters, the statute uses the more modern phrase “for the prosecution or the defense of the application or proceeding”. In either event, the language is certainly broad enough to support an award of counsel fees and expenses in connection with appellate proceedings. Certainly, in an expansive sense at least, the prosecution or defense of an appeal is part of the carrying on or defense of the underlying action or proceeding.

An application for an award of counsel fees for appellate services is made to the court of original instance and not to the appellate court. Urbach v. Krounder, 213 A.D.2d 833, 623 N.Y.S.2d 380 (3rd Dept. 1995); Gutman v. Gutman, 24 A.D.2d 758 (2nd Dept. 1965). An award of appellate counsel fees to enable a spouse to defend an appeal may be made either before or after the appeal has been resolved. Holloway v. Holloway, 307 A.D.2d 405, 762 N.Y.S.2d 681 (3rd Dept. 2003). Counsel fees may be awarded for prospective appellate services, without awaiting the determination of the appeal. A prospective award is to be determined by the trial court with its use of its knowledge and experience. Caldwell v. Caldwell, 209 A.D.2d 1022, 619 N.Y.S.2d 908 (4th Dept. 1994). The court should, before awarding prospective appellate fees on behalf of a party who will be resisting an appeal, be sure that the appeal is really going to be taken. It may not be necessary or appropriate to require the party who will be responding to the appeal that a record and brief has been filed by the appellant. This is because if such a showing is required, the respondent’s time to file a respondent’s brief may come and go before the fee application could even be made. It should suffice that there be a showing that the appellant is serious about the appeal.

In Block v. Block, 296 A.D.2d 343, 746 N.Y.S.2d 15 (1st Dept. 2002), a divided court held that it was error for the matrimonial court to have granted $15,000 in fees to cover the anticipated cost of defending an appeal of fee award of $35,000. In the same decision, the appellate court upheld the $35,000 fee award, but expressed concern that the $15,000 in anticipatory appellate fees courts could have acted, or might have been intended to act, as deterrent to the review of the original award. While the wife charged the husband was pursuing a “scorched earth” tactic, the Appellate Division held that such allegations did not justify an award that served, in effect, as a sanction for taking an appeal. A dissent maintained that the monied spouse was using his resources against the less powerful spouse to obtain leverage in the litigation by requiring her to use up a portion of her finite resources to defend against the appeal.

It should be noted that the appellate court, in deciding the appeal, may conclude that a party who successfully defended the appeal should be awarded counsel fees for appellate services and expenses. In such event, the appellate court, while directing that the unsuccessful appellant be responsible for the fees, must direct that an application to fix the amount of the fees be made to the trial court. Murtari v. Murtari, 249 A.D.2d 960, 673 N.Y.S.2d 278 (4th Dept. 1998).

Of course, a party may wait until after the appeal has been determined to seek fees for either prosecuting or defending the appeal. Salvati v. Salvati, 242 A.D.2d 538, 662 N.Y.S.2d 130 (2nd Dept. 1997). In such event, a successful resolution of the appeal in the favor of the party seeking fees would be a factor in favor of the award; conversely, a unsuccessful outcome is also a factor to be considered. Thus, in Salvati v. Salvati, 242 A.D.2d 538, 662 N.Y.S.2d 130 (2nd Dept. 1997), the Appellate Division specifically held that it was error to deny a request for appellate counsel fees as timely where the application was made after the appeal was decided. The court ruled that there was nothing in Section 237 that precluded an application from being made after the appeal was determined. Indeed, the Appellate Division directed that the lower court rule on the merits of the application for fees for the prosecution of a successful appeal, as well as for fees for opposing a motion for leave to appeal to the Court of Appeals.

There is no time limit with which an application for appellate counsel fees must be made. In Holloway v. Holloway, 307 A.D.2d 405, 762 N.Y.S.2d 681 (3rd Dept. 2003), it appears that the appeal for which appellate fees were sought was decided in April 1999 and fees were requested in February 2001. The appellate court concluded that, while there was an unusual delay in making the request, and that delay could have justified its denial, the trial court did not abuse its discretion in granting the request. Clearly, it would be better practice to seek fees within a reasonable time of the resolution of the appeal.

The trial court’s denial of counsel fees, whether made prospectively before the appeal is heard or retroactively after the appeal has been heard, may be reviewed by the appellate court. See, e.g., Farrell v. Cleary-Farrell, 306 A.D.2d 597, 761 N.Y.S.2d 357, 3 A.L.R.6th 803 (3rd Dept. 2003) (denial of prospective appellate fees to defend appeal affirmed where appeal was limited to one issue and appeal was not frivolous and not intended to prolong litigation).

It has been held that an award will be denied if there exists a prior valid foreign divorce. Gould v. Gould, 201 A.D. 127, 194 N.Y.S. 122 (1st Dept. 1922). But see Bienstock v. Bienstock, 219 N.Y.S.2d 395 (Sup.Ct. Kings County 1961), holding that the court may award counsel fees on an appeal by a wife for modification of a support order in an action brought by her to declare invalid an ex parte foreign divorce decree which was instead held to be valid and her complaint dismissed on the merits.

In Weitz v. Weitz, 24 N.Y.2d 930, 301 N.Y.S.2d 991, 249 N.E.2d 768 (1969), the Court construed Section 237 as authorizing a spouse to be awarded counsel fees despite the nullity of the marriage by reason of the invalidity of that spouse’s prior divorce. In view of Section 237, which authorizes the payment of counsel fees and expenses to enable a spouse to carry on or defend the action, counsel fees on appeal may be awarded to a spouse whether the judgment is for divorce, separation, or annulment, and regardless of whether the spouse for whom the award is made is the appellant or respondent. See Greenberg v. Greenberg, 134 A.D. 419, 119 N.Y.S. 227 (1st Dept. 1909).

Where a spouse seeks counsel fees in order to prosecute an appeal, the would-be appellant must show that there is reasonable ground for believing that the appeal will be successful and is taken in good faith. Koff v. Koff, 286 A.D. 1110, 146 N.Y.S.2d 461 (2nd Dept. 1955); Greenberg v. Greenberg, 134 A.D. 419, 119 N.Y.S. 227 (1st Dept. 1909). Counsel fees and related expenses may be denied where there is a failure to show reasonable probability of appellate success. See Habiby v. Habiby, 24 A.D.2d 435, 260 N.Y.S.2d 664 (1st Dept. 1965); Prytherch v. Prytherch, 22 A.D.2d 706, 253 N.Y.S.2d 781 (2nd Dept. 1964).

In addition to awarding counsel fees to prosecute an appeal, the court, where appropriate, may direct the respondent to pay for, or reimburse for, disbursements necessary to the prosecution of the appeal, such as printing expenses and transcript costs. These items surely fall within the classification of litigation expenses which are essential to the prosecution of the appeal. See DRL § 237 (subd. d). When the appeal is determined, the appellate court in its order will determine which side is to be responsible for appellate costs. However, even the refusal of the appellate court to award costs is not automatically preclusive of the court’s power to make an appropriate award under DRL § 237.

At one time, it was the rule that a wife, who was the successful party in the trial court, was entitled to counsel fees to defend an appeal taken by the husband, regardless of the sufficiency of her financial means. Goldsmith v. Goldsmith, 56 A.D.2d 834, 392 N.Y.S.2d 69 (2nd Dept. 1977). However, this principle has not survived the gender-neutralization of DRL § 237 and the increase in emphasis upon a fair allocation of litigation expenses based upon the parties’ respective financial circumstances. The point is illustrated by Borakove v. Borakove, 116 A.D.2d 683, 498 N.Y.S.2d 5 (2nd Dept. 1986). In that case, the lower court, relying upon Goldsmith, awarded the wife appellate counsel fees on the sole basis that she had prevailed in the lower court in a prior matter and had successfully defended an appeal taken by the husband. The Appellate Division reversed and ordered a new hearing on the question of counsel fees. It held that an application for counsel fees must always entail consideration of the relative merits of the parties and their respective financial situations. It distinguished the Goldsmith case by explaining that, there, after trial, the wife was found financially entitled to an award of counsel fees and it was for that reason that the issue of the wife’s economic resources did not have to be considered. As modified in Borakove, Goldsmith still suggests that, where a party was properly awarded counsel fees by the trial court, the explicit, or implicit, finding of financial eligibility carries over to a request by that party for counsel fees on appeal and may not be relitigated by the adverse party. However, the finding of financial eligibility does not mean that an award must be made. The other factors to be considered, including the merit of the appellate contentions, must be weighed in the balance.

In Castellano v. Ross, 19 A.D.3d 1020, 798 N.Y.S.2d 271 (4th Dept. 2005), the appellate court held that the father should not have been ordered to pay fees and disbursements in connection with services involved in the representation of the mother on three separate appeals where the retainer agreement between the mother and the attorney did not cover any appeals and there was no written agreement specifically related to the appeals. While the mother and her attorney claimed that they had oral modified the retainer to cover the appeals, such oral modification was ineffective because the agreement provided that modifications must be contained in a subsequent writing signed by the client. See also Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 A.D.3d 161, 798 N.Y.S.2d 379 (1st Dept. 2005) (if law firm represented defendant client in two family law matters but only had one retainer agreement, recovery of fees against client may be totally precluded).
 
C237:7: Counsel Fees in Enforcement Proceedings

Until 1986, DRL Section 237 had no application to counsel fee awards for services rendered in connection with the enforcement of matrimonial orders and judgments. That subject was regulated exclusively by DRL Section 238 which conveyed discretion to the courts to fashion counsel fee awards to enable a party to prosecute or defend an enforcement proceeding. However, in 1986, as part of a general effort to make recalcitrant parties responsible, not only for the defaults but for the costs and expenses incurred in obtaining compliance, the Legislature added subdivision (c) to DRL Section 237. L.1986, ch. 149, § 1. This added provision gives DRL Section 237 an important role to play in enforcement matters.

Subdivision (c) of DRL Section 237 applies in actions or proceedings which are based upon a failure to obey any lawful order compelling the payment of support, maintenance, or distributive award. The statute does not apply to efforts to enforce other aspects of matrimonial orders, such as custody, visitation, and counsel fees. In situations involving matters other than support, maintenance or distributive award, authority for counsel fee awards must be found elsewhere. See, e.g. DRL § 237 (subd. b); DRL § 238.

While subdivision (c) speaks of “orders” which contain these types of financial relief, manifestly the statute encompasses court-imposed obligations. Judgments should clearly be within the term “order”. The order must be a “lawful” one. Lawful, in this context, means that the court that had the authority to make the order that it did and that the order has not been overturned on appeal or otherwise superceded. The statute does not seem to invite the court that passes upon the counsel fee application to reconsider, or permit reargument of, the order to be enforced in the guise of ascertaining its lawfulness. All that the court, on the fee application, is required to do is ascertain whether the rendering court had the authority to make the order and whether the order has been affected by any subsequent appellate or modification proceedings.

Actions or proceedings within the statute should include any application, including motions, for enforcement of support, maintenance, or distributive awards. However, plenary actions to enforce antenuptial, separation or other marital agreements would be excluded to the extent that the claim is founded on breach of contract, rather than to enforce a court-imposed obligation. Of course, if the agreement is incorporated into a court order or judgment, and it is the order or judgment that is sought to be enforced, the action or proceeding should be within the statute.

While Section 238 conveys to the court specific authority to award counsel fees in designated enforcement proceedings, the court may also award professional fees for enforcement proceedings pursuant to the general authority conveyed in Section 237 (subd. a), a determination which is also committed to the court’s discretion. See Markov v. Markov, 304 A.D.2d 879, 757 N.Y.S.2d 632 (3rd Dept. 2003) (wife was awarded counsel fees, pursuant to DRL § 237 [subd. a], where husband engaged in obstructionist tactics delaying the sale of the marital residence and compelling wife to incur additional litigation costs); State ex rel. Gerstein ex rel. Gerstein v. Gerstein, 302 A.D.2d 447, 755 N.Y.S.2d 408 (2nd Dept. 2003) (mother was awarded counsel fees incurred in connection with proceedings to enforce visitation).

In a qualifying action or proceeding, if the court finds that the failure to comply with the order was willful, the court must order the respondent to pay counsel fees to the attorney for the petitioner. As employed in the statute, the respondent, even if styled otherwise in the caption, is the person charged with the default and the petitioner is the person who seeks enforcement.

The key question to be decided is whether the default is willful. Thus, where a contempt proceeding was settled, without the court having made an express finding of willfulness, the statute did not apply. Webber v. Webber, 30 A.D.3d 723, 817 N.Y.S.2d 417 (3rd Dept. 2006). Wilfulness is shown by proof that the defaulting party had the ability to pay but did not do so. The mere fact that payment was not made, by itself, does not establish wilfulness. See Altschul v. Altschul, 84 A.D.2d 798, 444 N.Y.S.2d 159 (2nd Dept. 1981); Bruno v. Bruno, 50 A.D.2d 701, 375 N.Y.S.2d 442 (3rd Dept. 1975); Lamb v. Lamb, 55 A.D.2d 830, 390 N.Y.S.2d 311 (4th Dept. 1976). If the court finds that the failure to pay was not wilful, an award of counsel fees cannot be made pursuant to DRL Section 237, subdivision (c). However, that does not mean that an award cannot be made at all. The court could still exercise its discretion, pursuant to DRL Section 238, to make an appropriate award.

On the other hand, if wilfulness is shown, an award of counsel fees must be made. Where the default is proven to be wilful, the court has no discretion to refuse to make an award of counsel fees to the attorney for the creditor party. However, the amount to be awarded still rests in the discretion of the court.

Where an award is made pursuant to subdivision (c), the court must order that payment be made directly to the attorney for the creditor spouse. Where that attorney has already received full payment for his or her services from the client, the court may not order the debtor spouse to pay fees to the creditor spouse but it should be able to direct the attorney to refund to the client the monies received from the client upon the attorney’s receipt of fees from the debtor spouse.

Curiously, subdivision (c) does not explicitly mandate that expenses and disbursements incurred in connection with qualifying enforcement matters be reimbursed by a spouse who wilfully defaulted. The broad definition of expenses contained in subdivision (d) of DRL Section 237 applies to subdivisions (a) and (b) and not to subdivision (c). However, the court would have discretion to award disbursements pursuant to DRL Section 238.
 
C237:8: Litigation Expenses Generally

Where the court is authorized to make an award of counsel fees under subdivisions (a) and (b) of DRL Section 237, it is also empowered to include in its award a directive for the payment, or reimbursement, of litigation expenses. The term expenses is specifically defined by the statute to include accountant fees, appraisal fees, actuarial fees, investigative fees, and such other fees and expenses as the court may find to be necessary to the prosecution or defense of the action or proceeding. DRL § 237 (subd. d). Litigation expenses must, however, be distinguished from personal living expenses, such as personal travel expenses, clothing, or educational expenses for children. Personal living expenses may not be recouped through an award under DRL § 237. See Ross v. Ross, 90 A.D.2d 541, 455 N.Y.S.2d 113 (2nd Dept. 1982). Such expenses may be considered in the context of support or maintenance or form the basis for a cause of action in necessaries.

The broad and liberal statutory definition of expenses was first appended to DRL Section 237 in 1983 as then subdivision (c). L.1983, ch. 86. The 1983 enactment was prompted by the increased importance of accountants, appraisers, and investigators in contested equitable distribution matters. Though the courts did make awards to needy spouses to cover such expenses, there was no express statutory authorization and DRL Section 237 was amended to fill the gap. In 1986, a new subdivision (c) was enacted, dealing with counsel fees in certain enforcement matters, and the definition of expenses was dropped down into subdivision (d).

The 1983 amendments which revised DRL § 237 to give the courts express authority to provide for awards to cover litigation expenses, such as appraisal fees, merely confirmed previous caselaw holdings that the courts had such authority. In Zirinsky v. Zirinsky, 138 A.D.2d 43, 529 N.Y.S.2d 298 (1st Dept. 1988), the amendments were described as essentially a “housekeeping measure designed to eliminate any confusion about the extent of powers the courts were already exercising.” 529 N.Y.S.2d at 299. Zirinsky holds that, in addition to the authority to compel one spouse to pay for experts retained by the other, the court has inherent authority to appoint its own independent expert, with the cost to be apportioned between the parties. Court rules specifically provide that in any non-jury action in which Section 237 applies, the court may appoint an expert to give testimony as to custody and visitation and may appoint an expert to give testimony with regard to equitable distribution. 22 N.Y.C.R.R. § 202.18.

In 1992, the Legislature amended DRL § 237(d) to provide that, in determining whether accountant, appraisal, actuarial and investigative fees are reasonable and necessary, the court must consider: the nature of the marital property involved; the difficulties involved, if any, in identifying and evaluating the marital property; the services rendered and the estimated time involved; and the applicant’s financial status. L.1992, ch. 422.

For the most part, the legislation merely incorporates into the statutory considerations that the courts had already identified in the case law. The four statutory factors were drawn directly from Ahern v. Ahern, 94 A.D.2d 53, 463 N.Y.S.2d 238 (2nd Dept. 1983). The statute should not be read as limiting the court’s consideration to only those factors which have been written into the statute. For example, while the statute mentions the applicant’s financial status, surely the financial status of the spouse from whom payment is sought is relevant as well. The statute also omits reference to payment that may have already been made by the applicant.

The statute’s emphasis on “marital property” in the first two factors should not be read as suggesting that the court may grant fees only for the purposes of evaluating marital property. It may be appropriate in some circumstances for the non-titled spouse to be granted fees to evaluate separate property, such as where there is a claim to the appreciation in value of separate property, where the value of separate property is so significant as to impact upon the distribution of marital property, and where the value of separate property is relevant to a proper determination of maintenance or child support.

The statute’s reference, in the third factor, to an “estimate of the time involved” is most pertinent to an interim or pre-trial application. Where the work has been done, the service provider should be required to submit a detailed statement of the work done and time expended, not just a mere estimate.

Perhaps the stage of proceedings where awards of litigation expenses are the most critical is the pre-trial stage. In equitable distribution matters, experts are often essential in guiding counsel in disclosure, in pre-trial preparation, and in settlement negotiations. In Ahern v. Ahern, 94 A.D.2d 53, 463 N.Y.S.2d 238 (2nd Dept. 1983), the Second Department stressed the important roles to be played, in complex equitable distribution cases, by experts such as accountants, appraisers, and actuaries. The court implicitly encouraged the granting of expert fees pendente lite and developed a four-pronged test for evaluating applications for such relief. At one time, the First Department, on the other hand, indicated that the issue of an allowance for accountant’s services should be left to the trial court. It reasoned that the trial judge would be in a better position to ascertain what services were rendered, the qualifications of the accountant, and the compensation that should be allowed. Russack v. Russack, 85 A.D.2d 542, 448 N.Y.S.2d 420 (1981). This may be unfortunate if the spouse seeking to retain the expert lacks the funds to pay for the services. That spouse’s pre-trial and trial preparation may be hampered and an award for accountant’s services made at trial may come too late to be of any real assistance. Moreover, if a pre-trial award is made, an adjustment can be made later in considering the equitable distribution determination.

The courts have also placed emphasis on whether the party opposing the application has been forthright in disclosure of his or her assets. See Karnilaw v. Karnilaw, 110 A.D.2d 685, 487 N.Y.S.2d 601 (2nd Dept. 1985). For example, in Pacheco v. Pacheco, 107 A.D.2d 741, 484 N.Y.S.2d 102 (2nd Dept. 1985), where the court upheld an interim award of expert fees, the wife had persuasively argued that her husband may have secreted assets in various corporate entities and she demonstrated that she lacked the funds with which to pay for needed investigative services made necessary by the husband’s apparent conduct. Likewise, in Endes v. Endes, 88 A.D.2d 652, 450 N.Y.S.2d 534 (2nd Dept. 1982), the court upheld an award of money to pay for accountant’s services where the husband had listed his interest in certain properties as “unknown”. It is suggested, however, that even if the husband had placed a value on those assets, the wife, if she questioned the accuracy of the husband’s valuation and lacked the funds necessary to retain an accountant, should still have received an award. The crux of the matter should be whether the services are necessary and whether the party seeking those services has the ability to pay for them. See Colin v. Colin, 113 A.D.2d 817, 493 N.Y.S.2d 495 (2nd Dept. 1985); Aronauer v. Aronauer, 112 A.D.2d 261, 491 N.Y.S.2d 708 (2nd Dept. 1985).

There is a line of authority which holds that expert fees should not be awarded with respect to services rendered towards the evaluation of an asset that is not subject to distribution. For example, in Billington v. Billington, 111 A.D.2d 203, 489 N.Y.S.2d 89 (2nd Dept. 1985), though the wife received an interim award of accountant’s fees to evaluate her husband’s medical practice, an award of appraiser’s fees was refused where the property to be appraised was, beyond dispute, the husband’s separate property and the wife had not claimed that these assets had appreciated due to her contributions. Where there is no dispute that the property is separate and no claim that the non-owner spouse contributed to the appreciation of the property, there certainly is no warrant for as comprehensive an examination of the property as would be the case if it were marital. However, where the separate property is, or is alleged to be, of considerable value, fairness may require, in some circumstances, that the non owner spouse be allowed fees to obtain a basic evaluation of it. Though the property itself would not be distributable, the court, in dividing the marital property, may take the amount of separate property possessed by one spouse into consideration. Further, an award of fees may be in order where the value of the separate property may have a bearing on maintenance and child support issues. Of course, an award of expert fees is not precluded by the fact that one party claims the property is separate where that claim is the subject of bona fide dispute.

In Waterman v. Waterman, 128 Misc.2d 665, 490 N.Y.S.2d 436 (Sup.Ct. Suffolk County 1985), the court held that, on a motion for interim counsel and expert fees, the court should examine the sufficiency of the matrimonial causes of action and, if the complaint is insufficient, an application by the plaintiff for interim counsel and expert fees should be denied. The court reasoned that since equitable distribution is available only if a the marriage is dissolved, it would be unwise and inequitable to compel a defendant to pay for services to be rendered in the preparation of a baseless action. However, in Waterman, the court was dealing with a complaint it found to be insufficiently pleaded. The Waterman rule is sensible where the plaintiff has failed to even state a cause of action for termination of the marriage and the defendant has not sought termination of the marriage. If the defendant has counterclaimed, and the counterclaim is legally sufficient, the rationale for denying the award would disappear. Further, if the plaintiff’s complaint is legally sufficient, an award should not be precluded. The plaintiff should not be compelled to demonstrate a probability of success on the matrimonial merits. As is the case with temporary spousal support, if the movant’s matrimonial claims are sufficient on the face, the burden should fall on the party resisting the motion to demonstrate that those claims are not meritorious. See Pica v. Pica, 70 A.D.2d 931, 417 N.Y.S.2d 528 (2nd Dept. 1979); Nobel v. Nobel, 49 A.D.2d 850, 373 N.Y.S.2d 615 (1st Dept. 1975).

The decision to award expert fees is, in the first instance, a matter committed to the discretion of the trial court. Upon appeal to the Appellate Division, the Appellate Division may review the matter and exercise a discretionary authority as broad as that possessed by the trial court. However, as a general matter, the Court of Appeals will disturb a discretionary decision on the issue of expert fees only where a legal issue is presented. See O’Brien v. O’Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743, 489 N.E.2d 712 (1986).
 
C237:9: Counsel Fees as Necessaries

Legal services furnished to a spouse in respect of a matrimonial action may be considered necessaries which counsel may recover in a plenary common law action against the other spouse. E.g., Elder v. Rosenwasser, 238 N.Y. 427, 144 N.E. 669 (1924); Alter & Alter v. Friedman, 210 A.D.2d 105, 620 N.Y.S.2d 45 (1st Dept. 1994); Sassower v. Barone, 85 A.D.2d 81, 447 N.Y.S.2d 966 (2nd Dept. 1982); Merrick v. Merrick, 163 Misc.2d 929, 622 N.Y.S.2d 852 (Sup.Ct. N.Y. County 1995); Phillips, Nizer, Benjamin, Krim & Ballon v. Rosensteil, 490 F.2d 509 (2nd Cir. 1973); see Gilberg v. Lennon, 212 A.D.2d 662, 622 N.Y.S.2d 962 (2nd Dept. 1995).

While the doctrine of necessaries developed as a basis upon which a wife or those providing services to her could obtain a recovery for necessary expenses from a husband, as the result of equal protection concerns, the doctrine of necessaries has been extended to impose a reciprocal duty upon the married couple for the necessary expenses incurred by either spouse. Medical Business Associates, Inc. v. Steiner, 183 A.D.2d 86, 588 N.Y.S.2d 890 (2nd Dept. 1992); Our Lady of Lourdes Memorial Hosp., Inc. v. Frey, 152 A.D.2d 73, 548 N.Y.S.2d 109 (3rd Dept. 1989). The Appellate Division, Second Department, held that, under the revised necessaries doctrine, the spouse who has incurred a debt for necessary goods or medical treatment is primarily liable for that debt. Medical Business Associates, Inc. v. Steiner, supra. Thus, where an attorney was retained to represent one spouse in a matrimonial action, the attorney cannot recover for the value of the services rendered against the nonclient spouse absent a showing that the client spouse was unable to satisfy the debt out of his or her own resources. Gilberg v. Lennon, 212 A.D.2d 662, 622 N.Y.S.2d 962 (2nd Dept. 1995).

The right to proceed on a necessaries theory is a remedy that sits alongside DRL Section 237. However, there are election of remedies problems. If an application for counsel fees is made in the matrimonial action, the court’s award determines the more affluent spouse’s obligation as to the services rendered in that action and a common law plenary action against the more affluent spouse for recovery of sums on account of legal fees is precluded. Berkowitz v. Berkowitz, 49 A.D.2d 872, 373 N.Y.S.2d 184 (2nd Dept. 1975); Pressinger, Wigg and Goodstein v. Revson, 67 Misc.2d 988, 326 N.Y.S.2d 10 (N.Y.City Civil Court 1971). The manifest purpose of this election of remedies doctrine is to prevent a double recovery and a double harassment of the more affluent spouse. See Phillips, Nizer, Benjamin, Krim & Ballon v. Rosensteil, 490 F.2d 509 (2nd Cir. 1973).

The concept of election of remedies may not be used to unfairly trap an attorney. The attorney is entitled to fully pursue one of the alternative remedies. This point was made in Sassower v. Barone, 85 A.D.2d 81, 447 N.Y.S.2d 966 (2nd Dept. 1982). There, the wife applied for and received a counsel fee award. However, the wife’s attorney perceived the award to be inadequate and an appeal was taken. Under then existing law, the appeal was taken in the wife’s name. The wife, however, reconciled with her husband and withdrew the appeal before it could be decided. The wife’s attorney thereafter brought an action to recover for legal services against the wife, based on the retainer agreement, and against the husband, based upon a claim of necessaries. While both the husband and the wife sought to avoid the attorney’s fee claim by pointing to the award made in the prior action, the court reasoned that the withdrawal of the appeal by the wife, taken as part of an agreement with her husband, had prevented the wife’s attorney from having the adequacy of the counsel fee award fairly evaluated on appeal. Accordingly, the court held the husband and wife equitably estopped from asserting the prior counsel fee award as a barrier to the plenary action.
 
C237:10: Counsel Fees to Contract Attorneys

Pursuant to Social Services Law, § 111-b (subd. 9[a]), the Commissioner of the Department of Social Services is permitted to contract with not-for-profit legal services corporations and agencies for the provision of legal representation to persons receiving social services. Those legal services may include the seeking of enforcement or modification of support orders. The contract must provide that the not-for-profit corporation or agency providing the legal services will apply to the court for an award of counsel fees and expenses from the adverse party. Consistent with these legislative provisions, DRL § 237 (subd. b) provides that the fact that the representation of a party by an attorney pursuant to the provisions of Social Services Law, § 111-b (subd. 9[b]) does not preclude the court from awarding counsel fees.
 
C237:11: Court Rules Governing Matrimonial Counsel Fees

The Rules of the Appellate Divisions regulate attorney conduct in domestic relations matters. The rules are found in 22 N.Y.C.R.R., Part 1400. Of moment to the issue of counsel fees, the court rules require that attorneys undertaking the representation of clients in domestic relations matters have a written retainer agreement with the client which sets forth, in plain language, the terms of compensation and the nature of the services to be performed. 22 N.Y.C.R.R. § 1400.3. The retainer agreement must also provide for the client to be periodically furnished with an itemized bill. An itemized bill must be sent to the client at least every 60 days. Where an action is brought in the Supreme Court, the retainer agreement must be filed with the court together with the client’s net worth statement. Net worth statements (and thus retainer agreements) must be filed at least 10 days prior to the preliminary conference. 22 N.Y.C.R.R. § 202.16(f).

The attorney conduct rules were instituted in order to curb abuses committed by some attorneys. There were instances in which counsel did not enter into written agreements with their clients, leading to misunderstandings, confusion, and disagreement as to fee arrangements. Where counsel had an agreement to be compensated on the basis of an hourly rate for hours devoted to the matter, failure to render bills periodically left clients in the dark as to the amounts being claimed by counsel and prevented clients from monitoring the charges being incurred. Failure to itemize bills made it difficult, if not impossible, for clients to assess the reasonableness of the bills.

The court rules regulating attorney conduct in domestic relations matters reflect important public policy and exist to protect clients. Where an attorney fails to substantially comply with the rules, the attorney will be unable to obtain payment from the client or from the opposing client. The issue is not whether the attorney has done the work or earned the fee. Rather, an attorney who has failed to comply with applicable court rules is not entitled to be paid for services rendered in violation of court rules regulating attorney conduct. Counsel not be fairly expect to be paid for services rendered in material violation of court rule. Indeed, loss of compensation gives counsel a major incentive to comply with the rules.

Whether a violation of the rules governing the conduct of matrimonial attorneys will result in a preclusion of recovery of fees by the offending attorney depends upon how substantial the violation is. Where the attorney failed to have a written retainer agreement with the client, failed to render any bills (much less render bills within 60 days), or failed to give notice of the right to fee arbitration, the courts generally preclude recovery of fees by the attorney, whether from the client or from the client’s spouse. See Castellano v. Ross, 19 A.D.3d 1020, 798 N.Y.S.2d 271 (4th Dept. 2005); Wagman v. Wagman, 8 A.D.3d 263, 777 N.Y.S.2d 678 (2nd Dept. 2004); Julien v. Machson, 245 A.D.2d 122, 666 N.Y.S.2d 147 (1st Dept. 1997); see also Matter of Serazio Plant, 299 A.D.2d 696, 750 N.Y.S.2d 347 (3d Dept. 2002). Where the attorney’s conduct is less gross, but still in violation, the courts may reduce the fees, but not preclude them entirely. See Riley v. Coughtry, 13 A.D.3d 703, 786 N.Y.S.2d 588 (3d Dept. 2004) (fees reduced by failure to bill every 60 days and timely provide other correspondence). See also Grald v. Grald, 33 A.D.3d 922, 824 N.Y.S.2d 100 (2nd Dept. 2006) (failure of wife’s attorney to comply with requirements for execution and filing of retainer agreement and failure to provide an itemized bill ever 60 days did not preclude an award of counsel fees where award was made in a violation proceeding under Article 8 of the Family Court Act as such proceedings are not within the parameter of the rules).

The courts will not apply the rules, which are designed to protect a truly aggrieved client from the unsavory conduct of an attorney, in a fashion so as to enable a client to avoid paying fees earned by an attorney in good faith and in substantial compliance with the rules. Thus, where an attorney had the client sign a retainer agreement with the law firm that the attorney was then a member of, the failure of the attorney to have a new agreement signed after the dissolution of the law partnership did not warrant precluding the attorney from recovering fees earned from the client, particularly where the client signed a change of attorney form and, in an affidavit, ratified the attorney’s representation of her. Gross v. Gross, 36 A.D.3d 318, 830 N.Y.S.2d 166 (2nd Dept. 2006). The court in Gross distinguished Alexander Potruch, P. C. v. Berson, 261 A.D.2d 494, 688 N.Y.S.2d 897 (2nd Dept. 1999) on the ground that in the earlier case, the attorney seeking fees was not affiliated with the law firm which had a retainer agreement with the client at the time that the retainer agreement was executed.

If a law firm represented a client in two family law matters but only had one retainer agreement that covered only one of the matters, recovery of fees against client may be totally precluded. Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 A.D.3d 161, 798 N.Y.S.2d 379 (1st Dept. 2005). See also Sherman v. Sherman, 34 A.D.3d 670, 824 N.Y.S.2d 656 (2nd Dept. 2006) (where retainer provided that relationship between plaintiff and her attorney would terminate by its own terms on entry of a divorce judgment, attorney could not obtain an attorney’s fee from the defendant in connection with a postjudgment application as attorney did not obtain new retainer agreement and failure to do so was not substantial compliance with rules).

The failure to abide by the rules governing the conduct of matrimonial attorneys is often litigated in the context of applications for counsel fees and actions to recover fees and a substantial violation may lead to the denial of fees. But that is not the only possible sanction, the rules set forth standards of professional conduct and violations may be punished through the disciplinary process. See Matter of Larsen, 50 A.D.3d 41, 849 N.Y.S.2d 560 (1st Dept. 2008) (attorney suspended for two and one half years and directed to pay restitution to client on account of numerous rules violations, including failure to provide a Statement of Client’s Rights and Responsibilities to client and failure to render regular, itemized bills; attorney also improperly notarized documents that client had not signed, disbursed escrow funds in a fashion not in compliance with court orders, charged an excessive fee, and pressured client to withdraw letter to court in which client complained about the fees charged; a dissent urged that the attorney be disbarred).

Note that, in a non-matrimonial context, a provision in a retainer agreement providing for the payment of 16% interest on unpaid legal fees was held unenforceable; while interest may be recovered, it must be reasonable and, while the statutory rate of 9% is reasonable, 16% was held not to be. Kutner v. Antonacci, 16 Misc.3d 585, 837 N.Y.S.2d 859 (Dist. Ct. Nassau County 2007).

The matrimonial court may approve a litigant’s request to grant his or her counsel a security interest in the jointly owned marital residence where, upon review of the parties’ finances, the court concludes that both parties have sufficient equity in the marital residence to leave each of them sufficient assets to pay their respective counsel. Iriarte v. Iriarte, 19 Misc.3d 582, 856 N.Y.S.2d 839 (Sup.Ct. Orange County 2008). In that circumstance, the client spouse has been protected by the appropriate provisions in the retainer agreement, the adversary spouse has been protected by having been given notice of the requested lien, the court is aware of the lien and can consider its existence in fashioning an equitable distribution determination, and neither spouse has a legitimate reason to deny protection to counsel. Further, the court may approve the lien even though counsel has yet to render any services, recognizing that, absent the lien, attorneys may shy away from representing a spouse who has limited liquid assets as counsel would run the risk of never being compensated. In Iriarte, the amount of the requested mortgage was equal to the minimum fee provided for in the retainer agreement. The retainer agreement called for a $40,000 retainer, of which $25,000 was a minimum fee, which the court found permissible. The wife paid only $15,000 of the retainer, lacking the liquid assets to pay the balance. Note, further, that in Iriarte, the wife, after extensive litigation, decided to change counsel and the proposed lien was for the protection of her incoming counsel, rather for the benefit of outgoing counsel.

Certain fee disputes between lawyers and clients are subject to mandatory arbitration, at the client’s election. The fee dispute resolution program is set forth in Part 137 of the Rules of the Chief Administrator of the Courts. Part 137 covers fee disputes in civil matters generally. Only criminal matters are excepted. 22 N.Y.C.R.R. § 137.1(b). Thus, Part 137 covers fee disputes arising in matrimonial and family law matters.

Part 137 applies to disputes involving at least than $1,000 and not more than $50,000. Arbitration may be had of disputes involving less than $1,000 or more than $50,000 if both parties consent. 22 N.Y.C.R.R. § 137.1(b)(2). Part 137 arbitration does not apply to claims involving substantial legal questions, including professional malpractice or misconduct. Nor are claims against an attorney for damages or affirmative relief other than adjustment of a fee covered. Arbitration will not be permitted as to disputes where the fee to be paid by the client has been determined pursuant to statute or rule and allowed as of right by a court or where the fee has been determined by a court order. Disputes where no attorney’s service have been rendered for more than two years are not covered. Arbitration does not extend to disputes where the attorney is admitted to practice in another jurisdiction and has no New York office or to disputes where no material portion of the services was rendered in New York. Finally, arbitration is not available where the request for arbitration is made by a person who is not the client of the attorney nor the legal representatives of the client. 22 N.Y.C.R.R. § 137.1.

Clients may request arbitration of fee disputes with their counsel, no matter if the fee has already been paid. The arbitration may be requested by the client, and the client only. When there is a fee dispute, the attorney must notify the client of his or her right to elect arbitration. The client then has 30 days to select the arbitration option, which selection becomes binding on both parties. 22 N.Y.C.R.R. §§ 137.2, 137.6. Unless the complaint in an action to recover unpaid fees alleges that the fee dispute involves more than $50,000, the complaint will be dismissed if the attorney did not properly give the client proper notice of the arbitration opportunity. Kerner and Kerner v. Dunham, 46 A.D.3d 372, 848 N.Y.S.2d 617 (1st Dept. 2007). Thus, where the attorney did not provide the client with notice of the client’s right to pursue arbitration, and the attorney commenced an action in which the client defaulted, the attorney’s request for a default judgment was denied. Miller v. Corbett, 177 Misc.2d 266, 676 N.Y.S.2d 770 (Yonkers City Ct. 1998); see L.H. v. V.W., 171 Misc.2d 120, 653 N.Y.S.2d 477 (N.Y. City Civ. Ct. 1996); see also Julien v. Machson, 245 A.D.2d 122, 666 N.Y.S.2d 147 (1st Dept. 1997). Likewise, service of such a notice is a condition precedent to the establishment of a charging lien. K.E.C. v. C.A.C., 173 Misc.2d 592, 661 N.Y.S.2d 715 (Sup.Ct. Kings 1997). While the court may impose a charging lien or a retaining lien, the amount secured by such liens must be fixed by arbitration if the client timely demands arbitration. However, the court may decide the issue of the fees to which outgoing counsel is entitled where the client does not seek arbitration or waives arbitration. Markard v. Markard, 263 A.D.2d 470, 692 N.Y.S.2d 733 (2nd Dept. 1999).

The arbitration rules provide that the client must be notified of the right to arbitration unless more than two years have elapsed since the cessation of services. 22 N.Y.C.R.R. § 137.1(b)(6). However, an attorney who fails to give notice of the right to arbitration before bringing suit, cannot take advantage of the delay during the litigation to claim that no notice is presently required because two years have passed. Borah, Goldstein, Altschuler, Schwartz, & Nahins, PC v. Lubnitzki, 13 Misc.3d 823, 822 N.Y.S.2d 425 (N.Y. City Civ. Ct. 2006). The notice must be sent by certified mail or personal service and must set forth the right to arbitration and include the written instructions and procedures for commencing an arbitration. 22 N.Y.C.R.R. § 137.6(a). Simply sending a letter which informs the client that the procedures and forms may be found on the court system’s Web site is not sufficient. Calendar v. Edwards, 13 Misc. 3d 1086, 822 N.Y.S.2d 422 (N.Y. City Civ. Ct. 2006).

In the arbitration, the burden is on the attorney to prove the reasonableness of the fee by a preponderance of the evidence and to present documentation of the work performed and the billing history. The client may then present his or her account of the services rendered and the time expended. The client has the right of final reply. 22 N.Y.C.R.R. § 137.7.

The arbitrators may not review fees allowed or granted by a Supreme Court Justice. Sciandra v. Palmer, 174 Misc.2d 959, 666 N.Y.S.2d 907 (Sup.Ct. Erie County 1997). The purpose of arbitration is to grant a client a forum to resolve a genuine fee dispute; the arbitration rules were not intended to give a client a second chance to litigate matters resolved by the court. In other words, where a matter is determined by the Supreme Court, the matter is subject to review by the Appellate Divisions, but not by an arbitration panel.

If an attorney fails to participate in an arbitration without good cause, the attorney is to be referred to the appropriate grievance committee of the Appellate Division for appropriate action. 22 N.Y.C.R.R. § 137.11.

The court rules require that an attorney inform the client of the client’s right to seek arbitration “[w]here the attorney and client cannot agree as to the attorney’s fee.” 22 N.Y.C.R.R. § 137.6 (subd. a). The provisions for arbitration contemplate the resolution of a “fee dispute” between attorney and client and it does not matter whether the attorney has already received the amount in dispute. 22 N.Y.C.R.R. § 137.2. Seemingly, the obligation to notify the client of the right to arbitrate arises as soon as there is a disagreement between the attorney and client as to the amount of the attorney’s fee, even if payment has been made. Nevertheless, there is considerable disagreement in the courts as to when service of an arbitration right notice, and arbitration itself, becomes necessary.

In Paikin v. Tsirelman, 266 A.D.2d 136, 699 N.Y.S.2d 32 (1st Dept. 1999), the Appellate Division, First Department, dismissed an attorney’s action to recover for unpaid fees for services rendered in a matrimonial matter on the ground that the attorney failed to give proper arbitration notice. The lawyer contended that the notice requirement had not been triggered because the client never objected to the bills. The appellate court rejected that contention, holding that, if a matrimonial client’s failure to affirmatively object to the attorney’s bills resulted in allowing the attorney to circumvent the arbitration process, the fee arbitration rules would be effectively eviscerated. The First Department’s position was rejected by the Second Department in Scordio v. Scordio, 270 A.D.2d 328, 705 N.Y.S.2d 58 (2nd Dept. 2000). There, the appellate court held that the attorney, who was seeking a charging lien and fees from a client, was not required to send an arbitration notice to the client as the client never disputed the reasonableness of the fees charged by the attorney. The Second Department read the First Department’s rule as requiring an attorney to send an arbitration notice even in the absence of a fee dispute. However, because of changes in the arbitration rules since Scordio, the continued viability of the Scordio rule has been questioned. Messenger v. Deem, 26 Misc.3d 808, 893 N.Y.S.2d 434 (Sup.Ct. Westchester County 2009). In that case, the court held that, when the attorney received the client’s answer in the action seeking to compel payment and that answer alleged disputes about the fee, the attorney should have notified the client of the right to arbitrate. Because the attorney did not do so, the court dismissed the complaint, doing so in the middle of the trial.

The client’s failure to object to bills rendered by the attorney does not constitute a waiver of the right to elect arbitration. Lewis & Merritt, L.L.P. v. Smith, 170 Misc.2d 192, 650 N.Y.S.2d 921 (Sup.Ct. Nassau County 1996). However, the rendition of regular bills may give rise to an account stated if the client never objects to the bills. See Paul, Weiss, Rifkind, Wharton & Garrison v. Koons, 4 Misc.3d 447, 780 N.Y.S.2d 710 (Sup.Ct. N.Y. County 2004).

Public policy does not preclude attorneys from rendering additional bills or seeking additional fees after the client has demanded arbitration. Whether the fees were sought before or after the arbitration demand is simply one factor to be weighed by the arbitrator in arriving at a reasoned determination of the issues. Riley v. Coughtry, 13 A.D.3d 703, 786 N.Y.S.2d 588 (3rd Dept. 2004).

Enforcement of a retaining lien is not exempt from the client’s right to arbitration. The client is entitled to notice of the right to arbitration and the court may not fix the value of counsel’s services unless and until the client has been notified of the right to arbitration and either decided to waive it or failed to timely exercise it. Moraitis v. Moraitis, 181 Misc.2d 510, 694 N.Y.S.2d 588 (Sup.Ct. Nassau County 1999). However, in one decision, the court stated that counsel had violated the matrimonial rules by both failing to turn over the file and failing to notify the client of the right to arbitrate. Moraitis v. Moraitis, supra. While counsel is required to notify the client of the right to arbitrate a fee dispute, the rules do not, in fact, require counsel to turn over the file during the pendency of that dispute. Instead, counsel have a common law right to retain the file until paid, though the court may require the client to provide substitute security in exchange for the file. Hom v. Hom, 210 A.D.2d 296, 622 N.Y.S.2d 282 (2nd Dept. 1994). However, until the court orders the file turned over, it is not improper for counsel to retain it as security for unpaid fees. As noted above, in the Second Department, an attorney is not required to serve a notice of the right to arbitrate until there is a fee dispute. On the other hand, a client does not waive the right to seek arbitration merely by failing to object to bills. These issues, together with the attorney’s right to assert a retaining lien, were considered and well analyzed in Rotker v. Rotker, 195 Misc. 2d 768, 761 N.Y.S.2d 787 (Sup.Ct. Westchester County 2003). The court held that where a client discharges her counsel and seeks a turnover of the file, the attorney is entitled to a hearing before the court on whether the discharge is for cause. If the discharge is for cause, the attorney does not have a right to retain the file. If the discharge is without cause, the court must hold a hearing to determine whether there are sufficient assets available to post as security so that the files may be released. In either event, however, the client is entitled to notice of the right to arbitrate (once the attorney is on notice of the fee dispute) and, if the client so elects, arbitration will determine the amount, if any, owed to the attorney. Further, if the client elects arbitration, the amount, if any, owed by the client to the attorney will be determined by arbitration. The court is to decide the amount of security to be posted pending arbitration (if the file is to be released) and whether the discharge of counsel was for cause (in which event discharged counsel would not be entitled to a retaining lien). Rotker v. Rotker, 195 Misc.2d 768, 761 N.Y.S.2d 787 (Sup.Ct. Westchester County 2003).

The Appellate Division, Third Department has held that an arbitration panel acted appropriately in denying an attorney any fees (and ordering a refund of all fees already paid), where the attorney did not provide a written retainer, did not provide a statement of client’s rights and responsibilities, failed to provide timely itemized bills, and, during the arbitration, the attorney submitted inaccurate time records and testimony. In re Serazio-Plant, 299 A.D.2d 696, 750 N.Y.S.2d 347 (3rd Dept. 2002), leave to appeal denied, 100 N.Y.2d 512, 766 N.Y.S.2d 166, 798 N.E.2d 350 (2003) (the attorney charged for an expert that was never retained, failed to timely provide the file to incoming counsel, and gave inaccurate, false, misleading and unreliable testimony).

A party who is aggrieved by the outcome of the arbitration may seek a de novo determination by commencing an action on the underlying claim within 30 days of the mailing of the arbitration award. If an action is not commenced within that timeframe, the arbitration award becomes final and binding. 22 N.Y.C.R.R. § 137.8(a). If an action is commenced, however, the commencement of the action will carry with it permission to the other party to assert whatever claims he or she asserted in the arbitration. Thus, where an attorney filed a post-arbitration action, the client was entitled to assert in the action a claim to recover alleged overcharges, a claim that was predicated on the assertion that the attorney fraudulently induced the client to enter into a superseding retainer agreement that provided for a higher hourly rate than the original agreement. Walsh v. Duffy, 12 Misc.3d 111, 820 N.Y.S.2d 402 (App. Term 2006).

Where the claim by the attorney exceeds $50,000, as evidenced by a billing in excess of that amount, the dispute is not subject to arbitration, even if the client perceives that the amount of the claim should be less than $50,000. Eiseman Levine Lehrhaupt & Kakoyiannis, P.C. v. Torino Jewelers, Ltd., 44 A.D.3d 581, 844 N.Y.S.2d 242 (1st Dept. 2007) (parties agreed that the fees owed as of a given date were less than $50,000; however, they disagreed as to whether the client instructed the attorneys to stop working as of that date).

If a de novo action is commenced, the arbitration award is inadmissible and may not be attached to the defendant’s answer or otherwise referred to in the defendant’s pleading; affirmative defenses based upon the arbitration award are not sustainable; and, if the plaintiff is an attorney, the plaintiff may establish entitlement to summary judgment on the basis of an account stated. Landa v. Dratch, 45 A.D.3d 646, 846 N.Y.S.2d 256 (2nd Dept. 2007).

Notes of Decisions (1292)

McKinney’s D. R. L. § 237, NY DOM REL § 237
Current through L.2022, chapters 1 to 618. Some statute sections may be more current, see credits for details.
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