-
LAW AND THE FAMILY
More Equitable Counsel Fee Awards
BY Joel R. Brandes
New York Law Journal
Tuesday, August 24, 1999
COUNSEL FEE AWARDS are in the
court's discretion. Their primary purpose is not to reward or punish a
spouse, but to enable a needy person to carry on or defend an action or
proceeding so that the parties are as close as possible to being economic
equals in the action and ensure that one spouse not have greater leverage
during the litigation process.1
The Equitable Distribution Law
acknowledged the great need for economic equality between spouses with
regard to counsel fees in order to ensure a fair and equitable decision. As
one court stated: "should one spouse have substantially greater economic
leverage during the litigation (and negotiation) process than the other, the
fact may have a profound effect on the ultimate resolution both because of
its psychological impact on the parties and because of its effect on their
ability to finance the litigation." 2
Authority for Awards
The authority to award counsel fees
in a matrimonial action is derived from statute, not from the common law.3
Thus, the court may award counsel fees only in certain actions where
specifically authorized by statute, and then the statute is to be strictly
construed. Counsel fee awards are not authorized by any provision of the
Domestic Relations Law (DRL) in actions or proceedings to obtain maintenance
or a distribution of marital property following a foreign judgment of
divorce.
DRL §237(a) provides that
in any action or proceeding brought
(1) to annul a marriage 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
where such spouse assert the nullity of such foreign judgment, or (5) to
enjoin the prosecution in any other jurisdiction of an action for a divorce,
the court may direct either spouse ... to pay such sum or sums of money
directly to the attorney of the other spouse to enable that spouse to carry
on and defend the action or proceeding as, in the court's discretion,
justice requires, in light of the circumstances of the case and of the
respective parties.
Where an action for annulment is
maintained after the death of a spouse, [DRL] §237 (a) authorizes the court
to direct the person or persons maintaining the action to pay such sum or
sums of money directly to the attorney of the other spouse to enable that
spouse to defend the action.
"Expenses" is defined in DRL
§237(d) and includes, but is not limited to, accountant fees, appraisal
fees, actuarial fees, investigative fees and other fees and expenses as the
court may determine to be necessary to enable a spouse to carry on or defend
one of the actions or proceedings designated in §237(a).
DRL §237(b) provides that,
upon any application to annul or
modify an order or judgment for alimony or for custody, visitation or
maintenance of a child, made [as prescribed in §§236 or 240] 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 such sum or sums of money for the
prosecution or the defense of the application or proceeding for the other
spouse or parent as, in the court's discretion, justice requires, in light
of the circumstances of the case and of the respective parties.
DRL §238 states:
In any action or proceeding to
compel the payment of any sum of money required to be paid by a judgment or
order entered in an action for divorce, separation, annulment or declaration
of nullity of a void marriage, or in any proceeding pursuant to [§§243, 244,
245 or 246], the court may, in its discretion, require either party to pay
the expenses of the other in bringing, carrying on or defending such action
or proceeding.
This applies to any action or
proceeding to compel payment by way of an application for security or
sequestration,4 money judgment5 or contempt.6 This section does not
authorize counsel fees or expenses to be awarded in proceedings to enforce
property distributions or other non-monetary provisions of a judgment or
order, nor does the definition of "expenses" in §237(d) apply to enforcement
proceedings under this section.
The DRL also provides that, in a
proceeding to obtain an order of protection or to enforce such an order, the
Court may require any party to pay the reasonable counsel fees and
disbursements involved in obtaining or enforcing that order. Such fees may
be awarded only in favor of the person obtaining the order or seeking to
enforce it.7
Counsel fees and expenses may also
be obtained by a person seeking to enforce a custody decree of another state
under several sections of the Uniform Child Custody Jurisdiction Act8 and in
proceedings to hold a person in contempt of court for failure to obey a
non-monetary order, under certain circumstances.9
DRL §237(c) provides for a
mandatory award of counsel fees in certain enforcement proceedings. The
statute provides that in any action or proceeding for failure to obey any
lawful order compelling payment of support, maintenance, or distributive
award, the court shall, upon a finding that such failure was willful, order
respondent to pay counsel fees to the petitioner's attorney.
Flexibility for Courts
The Court of Appeals in DeCabrera
v. DeCabrera-Rosete noted that DRL §237 replaced §1169 of the Civil Practice
Act and significantly omitted the word "necessary," which had preceded the
phrase 'to enable the wife to carry on or defend the action.' This omission
gave the courts some flexibility when considering an application for counsel
fees. Indigence is not a prerequisite to an award of counsel fees. Rather,
in exercising its discretionary power to award counsel fees, a court must
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.10
In Schussler v. Schussler,11 the
defendant husband appealed from an order of the Supreme Court, which, after
a hearing, awarded the wife counsel fees of $9,345. The Appellate Division,
Second Department, modified the order to reduce that award to $1,500. It
stated that the wife was entitled to an award of counsel fees for amounts
expended in defense of the husband's application for a change of custody,
but she was not entitled to an award of counsel fees for amounts expended in
an attempt to obtain that counsel fee award, since such an award is not
authorized by DRL §237(b).
Several years ago we disagreed with
this conclusion and commented that the decision rested solely on the
unsupported conclusion of the Appellate Division, Second Department, that
such awards were not authorized by statute.12
In Wyser-Pratte v. Wyser-Pratte,13
the First Department disagreed with the Second Department's conclusion as to
the Supreme Court's authority to award such counsel fees and held that a
wife was entitled to attorney's fees for time spent by her counsel in
preparing an application for counsel fees. It found that such an award was
specifically authorized by DRL §237 in an action for divorce. In reaching
this conclusion of law, the court stated that the purpose of §237 is to
enable the less affluent spouse to obtain appropriate legal and other
services necessary for the presentation of his or her case by allowing the
court to make the more affluent spouse financially responsible for those
services.
Time Spent
The Wyser-Pratte court determined
that an award of fees for the time spent by counsel in making the counsel
fee application, and in related proceedings, comports with the purpose of
the statute and should therefore be encompassed within its scope. It stated
that if the time spent in applying for fees was not included in the award,
the purpose of the statute could be frustrated by the more economically
advantaged spouse engaging in protracted proceedings on the fee application
and thereby increasing the cost of obtaining counsel fees for the less
affluent spouse.
At that time we wrote, "We believe
that the Wyser-Pratte court's construction of the counsel fee provisions of
the DRL, to authorize such awards, is the preferable and correct
interpretation of the statute because it comports with the public policy
behind the enactment of counsel fee statutes and recognizes the realities of
modern day matrimonial litigation. We also believe that such awards are
clearly and expressly authorized by the DRL and that, if and when the Court
of Appeals determines the issue, it will and should adopt the approach of
the First Department."14
In O'Shea v. O'Shea,15 decided in
April, the Court of Appeals finally determined this issue. The trial court,
in making its award for counsel fees in a divorce action, included amounts
for legal services that were rendered before the action was commenced, and
for those rendered in connection with a counsel fee hearing. The appeal
turned on the interpretation of DRL §237(a). The husband argued that the
statute left no room for the counsel fee awards at issue. The wife contended
that it did.
The Court of Appeals agreed with
the wife, indicating in a footnote that the same holds true for related
professional-type expenses. It discussed the history of counsel fee
legislation and concluded that, when the Legislature enacted DRL §237, it
eliminated the words "during the pendency," which had appeared in the
previous counsel fee statute, on which the husband's argument rested. It
concluded that courts have the discretion, in appropriate cases, to grant
such awards, based upon criteria that include the circumstances of the
parties and the reasonableness of their positions.
Given the statutory background and
the unswerving direction of the decisional law over the last century and a
half, the Court of Appeals also held that courts have the discretion to
grant counsel fees to the wife for legal services rendered in connection
with the hearing to determine the fee award. This is not to say that awards
for legal services for fee hearings should be routinely expected or freely
granted, any more than those for pre-action services. It is a matter of
discretion; it is to be exercised in appropriate cases, to further the
objectives of litigational parity and to prevent the more affluent spouse
from wearing down or financially punishing the opposition by recalcitrance,
or by prolonging the litigation. Because a party is entitled to resist the
opponent's fee application and has the right to a hearing, the mere request
for a hearing should not carry with it a label of intransigence. It is for
the court to make such distinctions.
NOTES:
(1) Hinden v. Hinden, (1983) 122
Misc2d 552.
(2) Hinden v. Hinden, supra.
(3) Romaine v. Chauncey (1892) 129
NY 566, 29 NE 826; Kagan v. Kagan (1986) 21 NY2d 532; Caldwell v. Caldwell
(1948) 298 NY 146; Erikenbrach v. Erikenbrach (1884) 96 NY 456; Griffin v.
Griffin (1872) 47 NY 134.
(4) DRL, §243.
(5) DRL, §244.
(6) DRL, §245-246.
(7) DRL, §240(e).
(8) DRL, §75, subds h(7), i(3), and
p(2).
(9) Judiciary Law, §756 et seq.
(10) DeCabrera v. DeCabrera-Rosete
(1987) 70 NY2d 879.
(11) 109 AD2d 875.
(12) See Freed and Brandes,
"Equitable Counsel Fee Awards," New York Law Journal, 6-26-90, P. 3, col. 1.
(13) 160 AD2d 290.
(14) Freed and Brandes, "Equitable
Counsel Fee Awards," supra.
(15) 93 NY2d 187 (1999).
Joel R. Brandes has law offices in
Garden City and New York City. He co-authored Law and the Family New York
and Law and the Family New York Forms (both published by Westgroup). Bari B.
Brandes, a member of The Law Firm of Joel R. Brandes PC, assisted in the
preparation of this article.
