| Lang v Lang |
| 2010 NY Slip Op 02901 [72 AD3d 1255] |
| April 8, 2010 |
| Appellate Division, Third Department |
| Sari Nan Lang, Respondent, v Edward Lang,Appellant. |
—[*1] Greenwald Law Offices, Chester (Gary Greenwald of counsel), for respondent.
Egan Jr., J. Appeal from that part of an order of the Supreme Court (Meddaugh, J.), enteredDecember 29, 2008 in Sullivan County, which partially granted plaintiff's motion for interimcounsel fees.
Plaintiff and defendant were married in 1991 and are the parents of two minor children.Plaintiff commenced this divorce action in 2003. In 2004 and 2007, plaintiff was awardedinterim counsel fees from defendant in the total amount of $50,000. In May 2008, plaintiffmoved, in part, seeking an upward modification of pendente lite maintenance and support andalso sought an additional award of interim counsel fees in the amount of $50,000. Defendantcross-moved seeking the termination of or downward modification of pendente lite maintenanceand support. Without conducting a hearing, Supreme Court denied all relief sought, but grantedplaintiff interim counsel fees in the amount of $25,000. Defendant appeals contending thatSupreme Court erred in granting interim counsel fees without first conducting an evidentiaryhearing.
"Pursuant to Domestic Relations Law § 237 (a), a court in a divorce action may awardcounsel fees to a spouse 'to enable that spouse 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 ofthe respective parties' " (Johnson vChapin, 12 NY3d 461, 467 [2009], quoting DeCabrera v Cabrera-Rosete, 70NY2d 879, 881 [1987]). The purpose of the statute is "to redress the [*2]economic disparity between the monied spouse and the non-moniedspouse. Recognizing that the financial strength of matrimonial litigants is often unequal. . . the Legislature invested [trial courts] with the discretion to make the moreaffluent spouse pay for legal expenses of the needier one" (O'Shea v O'Shea, 93 NY2d187, 190 [1999]). "[W]hen 'exercising its discretionary power to award counsel fees, a courtshould review the financial circumstances of both parties together with all the othercircumstances of the case, which may include the relative merit of the parties' positions' "(Johnson v Chapin, 12 NY3d at 467, quoting DeCabrera v Cabrera-Rosete, 70NY2d at 881).
In support of her application, plaintiff argued that additional counsel fees were required as aresult of defendant's lack of cooperation in providing discovery, and the additional amountwould be sufficient to take the case through the trial of this action. Plaintiff provided SupremeCourt with counsel's billing history. In opposition to plaintiff's application, defendant argued thatadditional interim counsel fees were not appropriate since those fees were partially based onunsuccessful applications to modify pendente lite orders and other applications claimed to befrivolous. Defendant took issue with certain fees charged by plaintiff's counsel, and disagreedwith the assertion that he failed to provide discovery. Finally, defendant asserted that plaintiff,who is college-educated, chose to remain underemployed.
In granting plaintiff an award of interim counsel fees in the amount of $25,000, SupremeCourt was familiar with this "highly contentious action for divorce" since 2004, and the courthad a sufficient evidentiary basis to assess plaintiff's application (compare Bush v Bush, 46 AD3d1140, 1141 [2007] [noting that the proof submitted concerning the financial circumstancesof the parties was limited to written submissions by respective counsel]). The record containedinformation regarding the assets and liabilities of each party, including affidavits from each partyand their statements of net worth. In addition to the procedural posture of the case, SupremeCourt acknowledged and took into consideration the disparity of income and financialcircumstances of the parties—plaintiff's annual income was approximately $77,000($59,280 of which is child and spousal support) and defendant's annual income was $286,000.Supreme Court noted that plaintiff has expended more than $100,000 on counsel fees from anadvance on her equitable distribution and from borrowed funds and, at the time of herapplication, owed her attorneys $19,000 in legal fees. The court also noted that defendant's networth increased from $5 million when the action commenced to approximately $8 million in2008.
While it is true that a final award of counsel fees cannot be made "without a hearing in theabsence of a stipulation consenting to a determination upon written submissions" (Redgravev Redgrave, 304 AD2d 1062, 1066 [2003]), we have previously permitted interim counselfee awards without a full evidentiary hearing (see Dane v Dane, 260 AD2d 817, 819[1999]). The Third Department cases cited by defendant are inapposite since, procedurally, thosecases did not contemplate any further proceedings to address claimed inequities with the interimaward (see Bush v Bush, 46 AD3d at 1141; Yarinsky v Yarinsky, 2 AD3d 1108, 1110 [2003]; Redgrave vRedgrave, 304 AD2d at 1066). Here, the ultimate amount of counsel fees awarded plaintiff,and if needed, any adjustment, can be resolved at the trial of the underlying divorce action(see Coons v Coons, 161 AD2d 924, 924 [1990]). Consequently, in keeping with thelegislative intent of Domestic Relations Law § 237 (a) (see O'Shea v O'Shea, 93NY2d at 190), we conclude that, in this case, Supreme Court did not err in awarding interimcounsel fees without first conducting an evidentiary hearing.
Spain, J.P., Rose, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,without costs.