In its July 25, 2018 decision in Crago v. Diegel, the Appellate Division, Second Department, affirmed a counsel fee award to a wife, the monied spouse in this divorce action. Supreme Court Kings County Justice Esther M. Morganstern had awarded the wife 55% of her total counsel fees. Upholding the award, the Second Department noted:

In its determination of a counsel fee application, the trial court must consider the relative financial circumstances of the parties, the relative merit of their positions, and the tactics of a party in unnecessarily prolonging the litigation. Although the defendant correctly contends that he is the less monied spouse, the Supreme Court’s award to the plaintiff of 55% of her total counsel fees, upon its determination that the defendant’s obstructionist conduct unnecessarily prolonged the pretrial motion practice and the trial, was not an improvident exercise of discretion.

The Second Department cited Meara v. Meara, 104 A.D.3D 916, 960 N.Y.S.2d 911 (2013) in which the financial circumstances of the parties was not discussed, and Quinn v. Quinn, 73 A.D.3d 887, 899 N.Y.S.2d 859 (2010), in which the parties were described as being on equal footing.

However, a counsel fee award to the monied spouse is contrary the rule in the First Department as announced in Silverman v. Silverman, 304 A.D.2d 41, 47-49, 756 N.Y.S.2d 14, 19-21 (1st Dept. 2003). Below, Supreme Court New York County Justice Marilyn Diamond had awarded the husband $50,000 in attorney’s fees, out of a total of over $ 200,000 incurred, based upon the dilatory conduct of the wife and her then counsel. Eliminating the award, the First Department held:

This award of attorney’s fees was not proper under Domestic Relations Law §237, because awarding attorney’s fees to the monied spouse does not comport with the purpose and policies of that section of the Domestic Relations Law.

The First Department noted that although the ruling may be better characterized as a sanction rather than an attorney fee award under §237, under §130-1.1 of the Rules of the Chief Administrator, such a sanction may only awarded where the procedures set forth in 22 N.Y.C.R.R. part 130 are followed. Those procedures were not followed there.

The First Department noted that D.R.L. §237(a) permits a court to direct either spouse to pay counsel fees to the other 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.” The intent of the provision is 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, “to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence.” The paramount factor is financial need.

In Silverman, while the limited marital assets were divided evenly between the parties, the husband’s earning capacity going forward was substantially higher than the wife’s. The award of counsel fees to the husband did not level the playing field, but rather served merely to punish the wife for what the court viewed as wasteful, frivolous litigation conduct. An attorney fee award of such a punitive nature is permissible, but not under D.R.L. §237; only under 22 N.Y.C.R.R. §130-1.1.

The rule was again applied to reject an interim counsel fee award in Wells v. Serman, 92 A.D.3d 555, 938 N.Y.S.2d 439 (1st Dept. 2012), the First Department holding that an award of interim counsel fees to the monied spouse based solely on other spouse’s conduct in delaying the litigation, was improper under Domestic Relations Law §237. An award of counsel fees under D.R.L. §237 cannot be made merely to punish a party for claimed discovery delays or for seeking a jury trial on grounds.

Lower courts around the state have followed the First Department rule. This year, in TS v. ES, 58 Misc. 3d 1215(A) (Sup. Ct. Warren Co.), quoting Supreme Court Nassau County Justice Daniel Palmieri’s 2011 decision in Iannone v. Iannone, 34 Misc 3d 387, 390, 935 N.Y.S.2d 460, it was held, “While it is conceivable that a counsel fee award to a nonmonied could be reduced, based on frivolous or wasteful conduct, it is improper to require the nonmonied spouse to pay a portion of the fees of the other more monied spouse.” See also Justice Palmieri’s decision in Gluck v. Gluck, 38 Misc. 3d 1207(A), 1207A, 966 N.Y.S.2d 346, 346 (2013). In Lisa R. v. Gregory R., 58 Misc. 3d 1206(A) (Sup. Ct. Onondaga Co. 2016) it was held, “ It is not proper to award attorney’s fees to a monied spouse and no party’s actions rose to the level of sanctionable conduct.” See also, K.K. v. P.M., 50 Misc. 3d 1225(A), 31 N.Y.S.3d 921 (Sup. Ct. Westchester Co. 2015).

As of now, there is a conflict in the Departments.

Scott T. Horn, of Mischel & Horn, P.C., of Manhattan, represented the husband. Walter E. Anderocci, of Brooklyn, represented the wife.