| Decker v Decker |
| 2012 NY Slip Op 00558 [91 AD3d 1291] |
| Jnury 31, 2012 |
| Appellate Division, Fourth Department |
| William E. Decker, Respondent, v Patricia A. Decker,Appellant. (Appeal No. 2.) |
Appeal from a judgment of the Supreme Court, Erie County (Janice M. Rosa, J.), enteredFebruary 8, 2011 in a divorce action. The judgment, among other things, directed plaintiff to paythe sum of $2,000 towards defendant's outstanding legal bills. It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts. Memorandum: Following the settlement of the parties' matrimonial action but beforejudgment was entered, defendant moved for an award of counsel fees in excess of $19,000dollars, contending that she was entitled to such fees on a quantum meruit basis. Supreme Courtgranted her motion only to the extent of awarding her the sum of $2,000, and in appeal No. 2defendant appeals from the judgment granting her motion in part. We note that in appeal No. 1defendant also appeals from the underlying order deciding her motion, but that order is subsumedin the final judgment and thus the appeal therefrom must be dismissed (see Hughes vNussbaumer, Clarke & Velzy, 140 AD2d 988 [1988]; Chase Manhattan Bank, N.A. v Roberts &Roberts, 63 AD2d 566, 567 [1978]; see also CPLR 5501 [a] [1]). " 'The award of reasonable counsel fees is a matter within the sound discretion of the trialcourt' " (Dellafiora v Dellafiora, 54 AD3d 715, 716 [2008]; see Panek v Panek, 231 AD2d 959[1996]), and such awards are intended "to redress the economic disparity between the moniedspouse and the non-monied spouse" (O'Shea v O'Shea, 93 NY2d 187, 190 [1999]; see Matter ofWilliam T.M. v Lisa A.P., 39 AD3d 1172 [2007]). In exercising its discretion to award such fees,"a court may consider all of the circumstances of a given case, including the financialcircumstances of both parties, the relative merit of the parties' positions . . . , the existence of anydilatory or obstructionist conduct . . . , and 'the time, effort and skill required of counsel' " (Blakev Blake [appeal No. 1], 83 AD3d 1509 [2011]). Here, it is undisputed that there was a significant disparity in the parties' incomes. In theyears leading up to the parties' divorce, plaintiff's annual income averaged approximately$183,000, while defendant's annual income averaged approximately $27,000. In the judgment,however, defendant was awarded maintenance in the amount of $3,750 per month. Takingmaintenance into account, the parties' annual incomes are now approximately $140,000 and$69,000, respectively. Thus, plaintiff has 67% of the parties' adjusted combined income. Thetotal amount of counsel fees billed to defendant was $31,646.50, excluding interest, costs anddisbursements. Of that amount, plaintiff has paid $12,050, including the $2,000 required by thejudgment from which defendant appeals. The amount of the counsel fees incurred by plaintiff isnot set forth in the record because defendant's request for counsel fees was filed before October12, 2010, the effective date for the amendment to Domestic Relations Law 237 (a) that requiresboth parties to a fee application to submit affidavits setting forth the amount paid in fees to date.If we assume, however, that plaintiff incurred roughly the same amount in counsel fees as diddefendant, and there is no basis in the record from which to conclude that he paid any less, wewould thus conclude that plaintiff has paid approximately 65% of the total amount of counselfees incurred by both parties, after affording defendant a one-half credit for the initial retainerpaid by plaintiff with marital funds to his first attorney. That percentage is commensurate withplaintiff's pro rata share of the parties' combined income. Under the circumstances, it cannot besaid that the court's award constitutes either an abuse or an improvident exercise of discretion. Finally, we reject defendant's contention that a higher award of counsel fees waswarranted due to obstructionist tactics engaged in by plaintiff that hindered a more timelysettlement of the disputed issues. The trial court stated in its decision that "each party tookdifficult positions at different times throughout this litigation. In essence, each party heldsettlement of this matter 'hostage' to gain leverage over the other during negotiations." It thusappears that the court found the parties to be equally at fault for the prolonged litigation. In thatregard, we afford great deference to the trial court, which presided over the case from itsinception and is more familiar with the parties' positions during settlement negotiations. Wetherefore cannot agree with defendant that the record clearly establishes that plaintiff is more atfault for engaging in obstructionist tactics that led to increased counsel fees. Present Scudder,P.J., Smith, Centra, Lindley and Gorski, JJ.