DIVORCE - CAN MORE - MONIED SPOUSE RECOVER LEGAL FEES

As footnote 4 below states, the Second Department may have reached a different conclusion in this case.

Condo v Condo, 2020 NY Slip Op 20142, Decided on June 24, 2020, Supreme Court, New York County, Cooper, J.:

"The principle that even a successful litigant pays his or her own legal expenses, absent a contractual or statutory provision to the contrary, is so ingrained in our legal system that it is referred to as the "American Rule."[FN1] The New York State Domestic Relations Law (DRL), which governs matrimonial proceedings in this state, contains a number of provisions enabling a court to depart from the rule and shift responsibility for legal fees from one party to another. The question presented in this post-judgment matrimonial proceeding is whether any of these statutory provisions entitle the defendant ex-husband, who has been consistently successful in the litigation but in the process has amassed more than $2.5 million dollars in legal fees, to [*2]require the plaintiff ex-wife, who has been responsible for most of that litigation, to reimburse him for what he has had to expend. Complicating the question is the fact that while plaintiff is fabulously wealthy, defendant is even wealthier still. Thus, as will be discussed, defendant is in the position of seeking to recover legal fees as the "more-monied" former spouse as opposed to the more traditional "less-monied" one.

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I. LEGAL AUTHORITY

a. DRL § 237 (c)

After first moving generally under DRL § 237 in support of his demand that plaintiff be held responsible for the legal fees he has incurred, defendant, in his reply papers and confirmed during oral argument, abandoned subsection (a) and (b)[FN3] and settled on subsection (c) of the section. The language of DRL § 237 (c) is as follows:
In any action or proceeding for failure to obey any lawful order compelling payment of support or maintenance, or distributive award the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney representing the petitioner.

Plaintiff maintains that this subsection is limited only to the willful non-payment of court-ordered money, be it in the form of support, maintenance, or distributive award. Consequently, plaintiff argues that DRL 237 (c) bars defendant from seeking counsel fees for any alleged willful failure on her part to obey orders that concern the process for distributing marital property, in this case artwork, inasmuch as those orders did not "compel payment" of any kind. The court must agree.

Throughout the DRL, the term "distributive award" is consistently used in the context of money payments and is specifically defined in § 236 B (1) (b) as follows:
The term "distributive award" shall mean payments provided for in a valid agreement between the parties or awarded by the court, in lieu of or to supplement, facilitate or effectuate the division or distribution of property where authorized in a matrimonial action, and payable either in a lump sum or over a period of time in fixed amounts. Distributive awards shall not include payments which are treated as ordinary income to the recipient under the provisions of the United States Internal Revenue Code.

Thus, with regards to § 237 (c), the court is constrained from awarding defendant counsel fees for plaintiff's failure, even if willful, to abide by court orders in relation to the process of equitable distribution, so long as there is no failure to actually make payment in the form of a distributive award (see Rao v Rao, 74 AD3d 1556 [3rd Dept 2010]). Given the clear and unequivocal language of the DRL and lack of First Department case law directly on point, the court will not delve into the specific distinguishability of each case cited by the parties.

b. DRL § 238

In relevant part DRL § 238 provides that in any action or proceeding to enforce any

provision of a judgment or order, a court: . . . may in its discretion require either party to pay counsel fees and fees and expenses of experts directly to the attorney of the other party 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 (emphasis added).

Here, plaintiff argues, and this court again agrees, that a decidedly less-monied spouse
cannot be ordered to pay counsel fees to the decidedly more-monied spouse under this section of the DRL. In Roddy v Roddy, (161 AD3d 441 [1st Dept 2018]), the First Department reiterated that the provisions of DRL § 238 are intended to ensure a just resolution of the issues by creating a more level playing field with respect to the parties' respective abilities to pay counsel and focuses primarily upon the paramount factor of financial need. Further, it instructed that where a party's inappropriate litigation conduct has adversely affected the other party but both are able to pay their own counsel fees, the appropriate remedy may be a sanction under 22 NYCRR 130-1.1, not an award of attorneys' fees (see also, Silverman v Silverman, 304 AD2d 41 [1st Dept 2003]).

Although plaintiff is far from an indigent party, and is in fact extremely wealthy, it cannot credibly be argued that (1) she is the more-monied spouse; and (2) that defendant does not have the ability to pay his own counsel fees. Therefore, counsel fees cannot be awarded to defendant under this section of the DRL.[FN4]

c. Sanctions (22 NYCRR 130-1.1)

Although sanctions may be an appropriate remedy in this matter for a variety of plaintiff's unfortunate transgressions, including one that required this court to recuse, albeit temporarily, as well as her repeated and malicious interference with the Special Master's performance of her duties, defendant only raised the issue of sanctions for the first time in his reply brief. Indeed, it would be reversable error to award sanctions under these circumstances where the non-movant was neither given adequate notice that such relief would be considered, nor was afforded a reasonable opportunity be heard (see Zappin v Comfort, 146 AD3d 575 [1st Dept 2017]; Minister, Elders & Deacons of Refm. Prots. Dutch Church v 198 Broadway, Inc., 76 NY2d 411 [1990]). Therefore, without an evidentiary hearing, which the court is not inclined to schedule at this time, it will not impose sanctions on plaintiff sua sponte as defendant urges, and the issue was not otherwise properly raised in the motion.

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Footnote 1:Under the American Rule, "attorney's fees and disbursements are incidents of litigation and the prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties or by statute or court rule" (Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 [1986]).

Footnote 2:See Condo v Condo, 171 AD3d 435 (1st Dept 2019); Condo v Condo, 172 AD3d 595 (1st Dept 2019); Condo v Condo, 173 AD3d 595 (1st Dept 2019).

Footnote 3:DRL § 237 (a) permits a court to "direct either spouse 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." DRL § 237 (b) permits a court to do the same "[u]pon any application to enforce, annul or modify an order or judgment for alimony, maintenance, distributive award, distribution of marital property or for custody, visitation, or maintenance of a child." Both subsections expressly provide for a rebuttable presumption that fees are to be awarded to the less monied spouse.

Footnote 4:It is acknowledged that whereas the Appellate Division, First Department, has been consistent in refusing to hold the less-monied spouse responsible for the more-monied spouse's counsel fees, irrespective of the conduct of the parties, the Second Department has been receptive to fee-shifting in the face of bad conduct on the part of the less-monied spouse (see Cravo v Diegel, 163 AD3d 920 [2d Dept 2018][court's requirement that husband pay 55% of wife's counsel fees, despite him being the less-monied spouse, affirmed as "not an improvident exercise of discretion," where husband's "obstructionist conduct unnecessarily prolonged the pretrial motion practice and the trial"])."