DIVORCE - AWARDING INTERIM COUNSEL FEES

An interesting note to this case: the wife's lawyers withdrew as counsel after the trial court denied the application for additional interim counsel fees. It was the law firm who appealed as a "non-party appellant" and the court held that "the law firm is aggrieved by the order on appeal despite the fact that the relief the law firm sought in the alternative was granted (see RCI Plumbing Corp. v Turner Towers Tenant Corp., 152 AD3d 723, 723; Matter of Stateway Plaza Shopping Ctr. v Assessor of City of Watertown, 87 AD3d 1359, 1360; Scharlack v Richmond Mem. Hosp., 127 AD2d 580, 581; cf. Alberi v Rossi, 117 AD2d 574)."

Pezzollo v Pezzollo, 2019 NY Slip Op 04741, Decided on June 12, 2019, Appellate Division, Second Department:

"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 of the respective parties" (Domestic Relations Law § 237[a]). "An award of interim counsel fees is designed to redress the economic disparity between the monied spouse and the non-monied spouse, and ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse" (Cohen v Cohen, 160 AD3d 804, 806 [internal citations and quotation marks omitted]; see O'Shea v O'Shea, 93 NY2d 187, 190; Shakil v Rehman, 134 AD3d 1093, 1094; Witter v Daire, 81 AD3d 719, 720; Prichep v Prichep, 52 AD3d 61, 65). There is a rebuttable presumption that interim counsel fees shall be awarded to the less monied spouse (see Domestic Relations Law § 237[a]), and courts "should normally exercise their discretion to grant such a request made by the nonmonied spouse, in the absence of good cause" to deny the request (Prichep v Prichep, 52 AD3d at 65; see Carlin v Carlin, 120 AD3d 734, 735).

Here, considering the equities of the case and the financial circumstances of the parties, the Supreme Court should have directed the defendant to pay additional interim counsel fees to the law firm. Even taking into account the pendente lite relief awarded to the plaintiff and the defendant's voluntary sale of his interest in his medical practice, the defendant remained the monied spouse, and he failed to rebut the presumption that additional interim counsel fees should be awarded to the plaintiff as the nonmonied spouse (see E.J.L. v K.L.L., 38 Misc 3d 389, 406 [Sup Ct, Monroe County]; Darby v Darby, 35 Misc 3d 1235[A], 2012 NY Slip Op 510049[U] [Sup Ct, Kings County]). Exercising this Court's discretionary authority, which is as broad as that of the Supreme Court (see Cohen v Cohen, 160 AD3d at 806), we determine that an award of 75% of the total combined sum requested, or $58,784.90, is appropriate under the circumstances (see Domestic Relations Law § 237[a]; Shakil v Rehman, 134 AD3d 1093; Prichep v Prichep, 52 AD3d at 65). We note that the requested fees were incurred following the plaintiff's prior award of interim counsel fees. Therefore, contrary to the defendant's contention, there is no duplication of fees. We further note that our analysis applied to the granting of interim counsel fees to ensure that the plaintiff "will be able to litigate this action on equal footing" with the defendant (Duvall v Duvall, 144 AD3d 739, 742-743; see Prichep v Prichep, 52 AD3d at 65). A more detailed analysis of the relative financial circumstances of the parties will be addressed after trial and any interim awards will ultimately be considered by the trial court in the context of an overall resolution of the parties' financial claims (see Duvall v Duvall, 144 AD3d at 743; see also DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881; Prichep v Prichep, 52 AD3d at 66)."