DIVORCE - AWARDING ATTORNEY FEES IN SIMPLE DIVORCE WITH NO REAL LEGAL ISSUES

DC v. PC, 2017 NY Slip Op 50278 - NY: Supreme Court 2017:

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Plaintiff seeks payment of her attorney fees. Defendant opposes Plaintiff's application.

DRL § 237 provides that in an action for a divorce the court may award counsel fees "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 the respective parties." See, Prichep v Prichep, 52 AD3d 61 [2d Dept 2008]. Indigence is not a prerequisite to an award of counsel fees pursuant to DRL § 237. See, DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987].In considering an application for an award of counsel fees, the court shall consider the "equities and circumstances" of the case before it (Basile v Basile, 122 AD2d 759 [2d Dept 1986]).

Plaintiff testified that she is employed by the New York City Board of Education. As part of her employment, Plaintiff is a member of DC37 Union Legal Service and is eligible to receive legal representation from the Union. However, Plaintiff testified that she sought outside counsel because she understood that her spouse would pay her legal fees since he created the reason for her filing this action. Plaintiff has not shown that she was denied representation from her Union. Distressing is Plaintiff's attorney summation wherein she accused Attorneys who work for Union Legal Services as providing a time cap representation for clients. Plaintiff's Attorney assertion is an insult to the hard-working attorneys who work for Union employees. Plaintiff's attorney had cited no fact, law or statute to support this brazen discrediting accusation. In this basic garden variety matrimonial case, Plaintiff's Attorney bill is more than $31,848.67 as of the date of trial.

In a pendente lite order, Plaintiff's application for attorney fees was granted in the sum of $10,000.00 in the Order dated May 9, 2014. Since that Order, Defendant had to take out a loan to pay Plaintiff's attorneys' fee and his attorneys' fee. Given his limited financial circumstances, Defendant was unable to continue with his attorney and proceeded to trial unrepresented. Now, Plaintiff has incurred an additional $21,848.67 in attorney fees as of the date of trial.

There is no reasonable logic for incurring these astronomical attorney fees for this garden variety case. The only unresolved issue is Plaintiff's application for maintenance. Both parties are W2 wage earners. Plaintiff's attorney proceeded on a witch hunt for documents that Defendant was not disputing or seeking reimbursement, such as credit card statements, unnecessary subpoenas for bank statements and discovery demands. Assuming Plaintiff was entitled to attorney fees as the less monied spouse, the award of $10,000.00 was more than sufficient for this moderate middle class family with no significant legal issues.

Plaintiff had an ability to have legal representation through her employment Union but chose not to avail that benefit. DRL § 237 provides a remedy to level the playing field of a spouse that has no ability to obtain legal representation to defend themselves in a matrimonial action. It does not give an option to seek an attorney for the sole purpose to sanction a miscreant spouse as Plaintiff believes or was incorrectly advised.

Based on all of the above and circumstances in this case, the award of $10,000.00 is reallocated to Defendant which shall be deducted from Plaintiff's proceeds from the marital residence.Plaintiff's application for additional attorneys' fees is denied in its entirety."