| Moccia v Moccia |
| 2011 NY Slip Op 02364 [82 AD3d 1064] |
| March 22, 2011 |
| Appellate Division, Second Department |
| Nicholas Moccia, Respondent, v Jacqueline Moccia,Defendant. Eric Ole Thorsen, Nonparty Appellant. |
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In an action for a divorce and ancillary relief, nonparty Eric Ole Thorsen, the attorney for thedefendant, appeals from an order of the Supreme Court, Rockland County (Berliner, J.), datedFebruary 9, 2010, which denied his motion for an award of an attorney's fee in the sum of$20,847.87 to be paid by the plaintiff.
Ordered that the order is affirmed, without costs or disbursements.
The defendant wife in this divorce action was unable to afford counsel. The Supreme Courtassigned the nonparty appellant, Eric Ole Thorson (hereinafter the appellant), to represent thewife without compensation from her, "without prejudice to [a] motion by counsel forcompensation pursuant to CPLR 1102 (d), Domestic Relations Law Section 237, Judiciary LawSection 35 or as otherwise provided by law." The parties engaged in discovery, prepared for trial,and successfully negotiated a settlement agreement. The Supreme Court denied the appellant'smotion for an award of an attorney's fee to be paid by the plaintiff husband. We affirm.
A court may award an attorney's fee in a divorce action to a spouse "to enable [that spouse]to carry on or defend the action or proceeding as, in the court's discretion, justice requires, havingregard to the circumstances of the case and of the respective parties" (Domestic Relations Law§ 237 [a]; see DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]).
Here, while the husband's income from the Yonkers Parking Authority was greater than thewife's income, his earnings were nevertheless modest and they were expended, in large part, onthe wife and their children, as he paid, among other things, the mortgage and home equity loan,plus utilities on the marital home. In this regard, the Supreme Court properly considered theterms of the parties' settlement agreement and statements of net worth, which reflected thehusband's income and expenses, limited assets, outstanding mortgage, the absence of savings,and debt to his own counsel, in determining that the parties' financial circumstances were "notthat disparate so as to warrant an award of counsel fees." While we commend any attorney who,as here, agrees to accept a litigation assignment with no guarantee of compensation, the denial ofan award of an attorney's fee in this case was not an improvident exercise of the Supreme Court'sdiscretion. Dillon, J.P., Leventhal and Cohen, JJ., concur.
Austin, J., dissents and votes to reverse the order appealed from, with the followingmemorandum in which Belen, J., concurs: Based upon the disparity of income of the parties, Ibelieve that it was an improvident exercise of discretion for the Supreme Court to deny the wife'sassigned counsel's motion for an award of an attorney's fee without a hearing.
The standard for awarding an attorney's fee in a divorce action is well established (seee.g. Sand v Lammers, 150 AD2d 355 [1989]). In determining a counsel fee award, the trialcourt must consider factors such as "the difficulty of the questions involved, the skill required tohandle the case, specifics as to the time and labor required, the [attorney's] experience, ability andreputation, and the customary fee charged for similar services" (id. at 356; seegenerally Matter of Ury, 108 AD2d 816 [1985]; Matter of Potts, 241 NY 593 [1925],affg 213 App Div 59 [1925]). In addition, the financial circumstances of the parties andthe merit of their positions must be considered (see DeCabrera v Cabrera-Rosete, 70NY2d 879, 881-882 [1987]).
It is noted that the standard applicable to appellant counsel's motion for an attorney's feeunder Domestic Relations Law § 237 (a) was amended as of October 12, 2010, after theinstant motion was decided. Under the recent amendment to Domestic Relations Law §237 (a), the motion would have been subject to a rebuttable presumption in the wife's favor as the"less monied spouse."
While the majority correctly notes that the separation agreement negotiated by the wife'sassigned counsel affords certain short-term financial support for the wife, the overall benefitafforded to her through equitable distribution and maintenance should not be summarily ignored.
In viewing the totality of the services rendered and the benefits achieved, the wife's assignedcounsel should have had the opportunity to be heard (see Pfluger v Pfluger, 35 AD3d 828 [2006]; Price v Price,113 AD2d 299, 309 [1985], affd 69 NY2d 8 [1986]). This is especially true when it isremembered that the income of the parties is disparate with the husband making $73,198 perannum or 85% of the family income, while the wife is limited to disability income of a little morethan $13,000 per year (see e.g. Peritorev Peritore, 50 AD3d 874 [2008] [counsel fees were found to be appropriate based uponthe disparity of the husband's income totaling 87% of the family income to the wife's 13%]).Current payments and the distributive award are factors to be considered on making a counsel feeaward (see Maher v Maher, 196 AD2d 530, 532 [1993] ["Given the great disparitybetween the incomes of the parties, the (counsel fee) award should have been greater. That thewife had received a substantial distribution from the marital property does not preclude asignificant award of attorneys' fees"]; see also Raynor v Raynor, 68 AD3d 835, 839 [2009]).
Finally, even though the wife's assigned counsel could not, under the terms of the September16, 2008, order of assignment, seek an attorney's fee from her, the separation agreement executedby the husband contemplated a motion for an attorney's fee being made by the wife's assignedcounsel. In opposition to the motion, the husband argues that his expenses under the terms of theseparation agreement and the monies he owes his attorneys preclude an award of an attorney's feeto the wife's assigned counsel. Such opposition, standing alone, is insufficient to warrant a denialof the motion without a hearing. Certainly, the wife's assigned counsel, who is recognized for hiswillingness to step into this case at the Supreme Court's behest, should not be turned awaywithout a hearing to determine what, if any, attorney's fee is appropriate under the circumstances.
Accordingly, I vote to reverse the Supreme Court's order denying the motion of the wife'sassigned counsel for an award of an attorney's fee to be paid by the husband and to remit thematter to the Supreme Court, Rockland County, for a hearing to appropriately weigh the factorsset forth in DeCabrera and Sand.