MORE ON COVID AND CHILD CUSTODY

In this case, the court handles a similar situation (note the case posted yesterday) in a different manner...I also note how the court approaches the issue of attorneys fees and that this litigation is about 10 years going.

Waldorf v. Waldorf, NYLJ  April 27, 2020, Date filed: 2020-04-17, Court: Supreme Court, Suffolk, Judge: Justice Cheryl Joseph, Case Number: 27361/2010:

"The parties to this action are no strangers to this Court and have been embroiled in litigation for nearly a decade. It is worth noting that this post judgment matrimonial proceeding also has an accompanying plenary action under index number 06631/2017.

The Plaintiff commenced an action for divorce on or about July 26, 2010 and the parties settled their marital difficulties by way of a Stipulation of Settlement that was placed on the record before Hon. William J. Kent, J.S.C. on June 23, 2014 (hereinafter “Stipulation”). The parties were ultimately divorced by Judgment of Divorce dated October 1, 2014 and entered October 17, 2014 (hereinafter “JOD”). Subsequent post judgment litigation ensued and apart from the current pending applications before the Court, various applications made by both parties were settled and/or withdrawn.

The instant motion sequence, number 18, was made by the Defendant on February 14, 2020 and the Court notes that it previously decided Branch 3 of Defendant’s application by way of Decision and Order dated March 9, 2020.

Branch 1.

Branch 1 of Defendant’s application seeks an Order temporarily modifying the Interim Order of Parenting Time dated September 26, 2018. Plaintiff opposes the application.

The Court is unable to issue a decision with respect to this issue on the papers alone. The Court further takes judicial notice of the national pandemic, to wit: COVID-19, and the schools are currently closed until further notice. Therefore, the Defendant’s argument that the child, Q.W., should be with her during the school weeks may soon be rendered moot and the child may recommence attendance at the boarding school in Maryland in September 2020.

Therefore, this Branch of Defendant’s application shall be held in abeyance.
……

Branch 4.
Branch 4 of Defendant’s application seeks an award of interim counsel fees in the amount of $25,000.00. The Plaintiff opposes the application.

The Court may direct a party to pay counsel fees “directly to the attorney of the other spouse to enable the other party 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. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” See Dom. Rel. Law §237(a).

It is well settled that an award of interim counsel fees is within the sound discretion of the court. The issue of counsel fees is also controlled by the equities and circumstances of each case. See Nicodemus v. Nicodemus, 98 A.D.3d 604 (2d Dept. 2012). “In addition, the court may ‘take into account whether one party has delayed the proceedings or engaged in unnecessary litigation”‘. Margolis v. Cohen, 153 A.D.3d 1390, 1393-94 (2d Dept. 2017) (internal citations omitted).
In support of her request for $25,000.00, the Defendant argues that the Plaintiff is the monied party and she claims that he earns over $500,000.00 per year. She further posits that she is unable to pay her new attorneys’ retainer fee because she has “little in her bank accounts”, used her savings to purchase a new home that she renovated costing her nearly $200,000.00. She also argues that her income is used to pay her monthly expenses. The Defendant annexed an updated Statement of Net Worth, albeit using the old form, as Exhibit H to her moving papers which the Court has reviewed. While Defendant failed to annex her 2018 tax returns and/or her 2019 W-2 statement, she lists her income at almost $152,000.00 per year¹.

In opposition to Defendant’s application, the Plaintiff argues that there is $319,278.83 being held in escrow from the sale of the parties’ Colorado property which the Defendant refuses to release. Plaintiff submits that Defendant would realize at least $92,000.00 from the Colorado proceeds. The Plaintiff also directs the Court to the fact that the Defendant has purchased 2 houses (1 in 2016 and 1 in 2017) and one of said houses in a rental property. Further, the Plaintiff argues that the Defendant may not have disclosed certain assets on her statement of net worth, for example a Merrill Lynch account that previously had a gross value of approximately $150,000.00. Finally, the Plaintiff argues that Defendant has delayed this matter and has engaged in unnecessary litigation, for example: Defendant’s refusal to respond to settlement proposals; Defendant’s refusal to participate in a settlement meeting; and Defendant’s delay in listing the marital residence for sale.

Here, the Court finds that the Defendant has engaged in delay tactics and unnecessary litigation, which include but are not limited to her bringing an application for a Writ of Habeas Corpus during the current national pandemic (Covid-19) for the alleged return of a 15-year-old child.² The Court is further troubled by the Defendant’s failure to engage in the settlement meeting held on September 6, 2019. Specifically, Defendant chose to say in her counsel’s office instead of participating with the attorneys, including the attorney for the child, and the Plaintiff in the conference room.
The Court notes that the presumption that a party is entitled to counsel fees because he or she is the “monied spouse” is a rebuttable one. See Dom. Rel. Law §237(a). Furthermore, and to quote the Court’s learned colleague, Justice Jeffrey S. Sunshine, “…the court cannot decide that just because one party ‘earns more’ than the other that he or she automatically becomes the ‘monied spouse’.” Scott M. v. Ilona M., 31 Misc.3d 353, 369 (Sup. Ct. Kings Cty. 2011). Here, while the Plaintiff may earn more than the Defendant, the Defendant is possessed of sufficient income and assets that she is able to pay her counsel fees and litigate this matter on equal footing with the Plaintiff. "