Legal feesIn its May 1, 2015 decision in Mura v. Mura, the Appellate Division, Fourth Department, affirmed an order of Monroe County Supreme Court Justice Richard A. Dollinger that enforced an ex-wife’s attorney’s charging lien against a fund from which child support arrears were to be paid.

The parties were divorced in 1993. The Monroe County judgment of divorce awarded the wife child support and ordered the husband to pay $25,226.72 in child support arrears that had accrued from the commencement of the divorce action through entry of the judgment.

For 16 years, the child support obligation was not enforced. In April 2011, the wife hired Mark Chauvin Bezinque, Esq., to recover the accumulated child support arrears that, with interest, totaled $549,403.62 as of September 2011.

At the time, the husband owned real property in Ontario County. Bezinque filed the judgment in Ontario County and commenced actions in both Ontario County and Monroe County to restrain the sale of the Ontario property. While those proceedings were ongoing, the husband sold the property in violation of a court order. Upon Bezinque’s motion, the husband’s share of the proceeds from the sale of the home was placed in escrow “in anticipation of a final judgment for unpaid child support.” Bezinque referred the wife to another law firm for the preparation of executions and levies against the escrowed funds held by the husband’s then attorneys, and requested payment of the outstanding balance of his legal fees from those funds. The wife did not respond to that request. Bezinque thereafter moved by order to show cause seeking, inter alia, a charging lien pursuant to Judiciary Law § 475 against the escrowed funds sufficient to cover his outstanding fees. The wife opposed Bezinque’s motion.

Judiciary Law §475 codified and extended charging lien recognized at common law by which attorneys can recover fees due from the funds established by their litigation efforts. The statute gives the attorney a lien upon his or her client’s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds thereof in whatever hands they may come.”

The Fourth Department noted that the statute is remedial in nature and therefore must “be construed liberally in aid of the object sought by the [L]egislature, which was to furnish security to attorneys by giving them a lien upon the subject of the action.” “The lien comes into existence, without notice or filing, upon commencement of the action or proceeding,” and “gives the attorney an equitable ownership interest in the client’s cause of action.”

The Fourth Department noted that the Court of Appeals in 1917 in Turner v. Woolworth, 221 N.Y. 425, held that, as a matter of public policy, a charging lien may not attach to a spouse’s award of alimony or maintenance.

Here, the wife contended that child support awards should likewise be immune from attachment under Judiciary Law § 475. The wife cited Shipman v. City of New York Support Collection Unit, 183 Misc.2d 478, 703 N.Y.S.2d 389 (Sup. Ct. Bronx Co. 2000)

However, the Fourth Department first held that contrary to the wife’s characterization, the funds at issue were not a “child support award” or “child support arrears.” Rather, the escrowed funds constituted the husband’s share of the net proceeds of the sale of his residence and, as the trial court recognized, “[t]here has been no determination [as to] what amount of the house sale proceeds are necessary to pay any child support arrears owed by [the husband].”

[Comment: This seems a stretch as the lien can only attach to the funds of the client. Such a fund will not be established until the determination is made as to what amount of the house sale proceeds are necessary to pay any child support arrears owed by the husband.]

In any event, The Fourth Department noted that no New York appellate court has cited Shipman for the proposition relied upon by the wife, i.e., that child support awards are categorically excluded from an attorney’s charging lien. Here, the appellate court concluded that Shipman is unpersuasive, particularly in the context of this case.

Ultimately, the Fourth Department support its decision by noting that the children, here, were emancipated.

Even assuming, arguendo, that there is a general public policy precluding the enforcement of a charging lien upon a child support award, we conclude that such a policy is not implicated under the unique circumstances of this case.

Explaining, the appellate court noted that in Turner, the Court of Appeals reasoned that alimony was beyond the reach of an attorney’s lien because “[t]he purpose of alimony is support,” and “[e]quity, which creates the fund, will not suffer its purpose to be nullified.” The purpose of child support, of course, is “to assist a custodial parent in providing the child with shelter, food and clothing.”

Here, the wife did not seek to enforce the 16-year-old support obligation until the parties’ children, who were the intended beneficiaries of the support, were either emancipated or nearly emancipated. This is therefore not a situation in which the enforcement of a lien pursuant to Judiciary Law § 475 will result in the depletion of monies necessary for the ongoing support of a minor child or children .