DIVORCE - DELAYING TACTICS CAN COST A LITIGANT

Culen v Culen, 2018 NY Slip Op 00542, Decided on January 31, 2018, Appellate Division, Second Department:

" Pursuant to Domestic Relations Law § 237(a), a court in a divorce action may award counsel 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 the respective parties'" (Samimi v Samimi, 134 AD3d 1010, 1012, quoting Aloi v Simoni, 82 AD3d 683, 686). "The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court" (Black v Black, 140 AD3d 816, 816 [internal quotation marks omitted]; see O'Brien v O'Brien, 66 NY2d 576, 590). "In exercising that discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions, and whether either party has delayed the proceedings or engaged in unnecessary litigation" (Black v Black, 140 AD3d at 816-817 [internal quotation marks omitted]; see Guzzo v Guzzo, 110 AD3d 765, 766).

Here, the plaintiff was entitled to an award of an attorney's fee in the amount of $90,000 based upon, inter alia, the relative merits of the parties' positions and the defendant's obstructionist tactics, which unnecessarily prolonged the litigation (see Cohen-McLaughlin v McLaughlin, 132 AD3d 716, 717-718; Baron v Baron, 71 AD3d 807, 810; Curatola v Curatola, 43 AD3d 974, 976; Schek v Schek, 49 AD3d 625, 626). These tactics included, but were not limited to, the defendant's insistence that the parties proceed to a jury trial on the grounds for the divorce, despite the plaintiff having agreed either to settle on a ground other than cruel and inhuman treatment or to withdraw the case and re-file on the ground of irretrievable breakdown of the marital relationship, and the defendant's motion filed after trial on the issues of equitable distribution and maintenance to exclude the plaintiff from a tennis club where the parties were both previously members. The defendant unnecessarily prolonged the litigation by attempting to obstruct the plaintiff from obtaining discovery regarding an inheritance that the defendant was entitled to receive [*3]from his aunt's estate, even though it is well established that parties to a divorce action are entitled to liberal and broad discovery from one another, including with respect to separate property that is not subject to equitable distribution (see Owens v Owens, 107 AD3d 1171, 1174; Jaffe v Jaffe, 91 AD3d 551, 554; Dorsa v Dorsa, 50 AD3d 842, 843)