In his January 7, 2013 decision in Gluck v. Gluck, Nassau County Supreme Court Justice Daniel R. Palmieri, determined that the wife pay 80% of the counsel fees incurred by the husband, as such reflected the wife’s pro rata share of the parties’ total income.

Following a 13-day trial, the parties agreed that the Court would consider the legal fee applications of  both parties on submitted papers. The defendant-husband (the less-monied spouse) sought $125,000.00 in counsel fees under Domestic Relations Law §237 for services rendered by the two law firms that had represented him consecutively in this action.

Justice Palmieri noted that earlier, and after the Court issued its Decision and Order on the issues of custody and parental access, the parties had entered into a stipulation regarding child support and certain holidays. Certain child care expenses were apportioned 80% to the wife and 20% to the husband. The Court adopted those proportions as appropriately based on the incomes of the parties (approximately $360,000.00 and $90,000.00, respectively).

In opposition to the husband’s application, the wife contended that the husband’s obstructionist tactics and unreasonable demands unnecessarily prolonged and delayed the action, going to trial and unreasonably refusing to settle. This, the wife claimed, unnecessarily added to her own counsel fees which were in excess of $200,000.00.

Neither party claimed that the bills of opposing counsel were excessive or not reflective of work performed.

Mary Ann Aiello, Esq., the husband’s latter attorney, conducted the trial and negotiated stipulations in March 2012 regarding the sale of the marital residence and in August 2012 on the issues of equitable distribution and maintenance. After the trial of the remaining issues, the parties settled the issue of child support and certain holiday visitation.

In support of his application for counsel fees, the husband submitted his own affidavits, the affirmations of Ms. Aiello, and copies of retainer agreements and billing statements from each of the law firms that represented him.

However, Justice Palmieri found notably absent from the husband’s submission any affidavit or evidence from the husband’s first attorneys, attesting to or in support of the rates billed, the time expended, the reasons for the time expended or the goals achieved. The Court ruled that the billing statements of the first firm, alone, constituted inadmissible hearsay and thus did not support the husband’s claim for reimbursement for such fees. Justice Palmieri denied that portion of the husband’s application that sought fees for the work done by his first attorneys.

Determining the award for Ms. Aiello’s services, Justice Palmieri noted that an award of counsel fees pursuant to DRL §237(a) is a matter within the sound discretion of the trial court. The issue is controlled by the equities and circumstances of each particular case. In determining whether to award counsel fees, the court should review the financial circumstances of both parties, as well as the other circumstances of the case. A counsel fee award generally is designed to redress economic disparity between the spouses.

A court may consider the relative merit of the parties’ positions, and also whether there has been frivolous or wasteful conduct. Whether either party has engaged in conduct or taken positions resulting in a delay of the proceeds or unnecessary litigation may be reviewed.

Here, Justice Palmieri declined the wife’s invitation to speculate on the husband’s motive for contesting custody. Rather, Justice Palmieri concluded that the trial record did not support a finding that the husband acted in bad faith.

Bad faith should not be inferred simply because the Court ruled against the husband on certain of his contentions.

A counsel fee award is not intended to address a party’s decision to proceed to trial rather than agree to a settlement. Here, the Court found that the husband did not engage in unnecessary litigation simply because a settlement was not reached.

The record of the proceedings is, as it should be, silent with respect to the settlement postures of the parties. A finding that a party has engaged in obstructionist tactics requires more than a mere refusal to settle.

Finding Ms. Aiello’s billing rate to be reasonable and the substantial time and effort expended warranted, the Court awarded the husband fees for Ms. Aiello’s work in the same proportion that the incomes of the parties bore to the total of their combined incomes.

Moreover, Justice Palmieri rejected the wife’s argument that no award of fees was appropriate because the husband’s family assisted in the payment of his fees. That fact did not rebut the presumption in favor of the husband as the lesser monied spouse. Whether the husband’s family gave him money or loaned funds to him was not relevant to the inquiry.

Comment: Nevertheless, a formulaic approach to an award of counsel fees may be problematic. For example, why limit the application of the pro rata income analysis only to  the fees of the less-monied spouse? If pro rata responsibility is to be assigned, why  should that allocation not be applied to the fees of both parties? Here, why would the wife not be responsible to pay 80% of all of the reasonable fees incurred by both parties to bring the matter to conclusion? Note: this should not run afoul of Justice Palmieri’s caveat that it is improper to require a non-monied spouse to pay a portion of the fees of the monied spouse.

Moreover, is the relative incomes of the parties the only test to be formulaically applied? How do the assets of the parties come into play?

Finally, why, after trial and settlement, is it inappropriate for a court to consider the settlement demands of the parties? Does a non-monied spouse have no downside to making outrageous demands?

It is not suggested that, here, there was an inequitable result; only that the tendency to jump to easy ways out of the case-by-case analysis required by D.R.L. §237 is troublesome.

The husband was represented by Mary Ann Aiello, Esq., of Garden City. The wife was represented by Lisa R. Schoenfeld, Esq., of Schlissel, Ostrow, Karabatos, PLLC, also of Garden City.