The parties were married in 2001. They had one child, now five years old. Both parties were 38 years old. The wife attained the equivalent of a bachelor’s degree in Poland. During the marriage, she earned her real estate license. For the last two years, she had worked selling real estate directly for a developer. After having worked in a sales position for another developer for six years, the wife gave birth in 2008 to the parties’ son, and only worked half the year. She also stayed home with the child in 2009. In 2011, she earned $87,000, and in 2010, $58,936.

Prior to the marriage, the husband held licenses to sell insurance, securities, and a Series 7 certification. The day before the January, 2011 commencement of this divorce action, the husband was laid off as an investment advisor with the firm for whom he had been working since 2006. In 2011, the husband worked for a securities firm, and earned $87,911.47. He now works for another securities firm, where his income is based solely on commissions.

A six-day trial was conducted on the issues of parental access, equitable distribution, allocation of marital debt and tax arrears, child support and maintenance (and arrears of both). Following a decision on these issues, a hearing was held on the wife’s application for counsel fees.

The wife had incurred counsel fees of over $63,000,based upon her counsel’s fee at $400 per hour. Of that sum, the wife had already paid $25,000.

During the counsel fee hearing, the court observed that the husband’s testimony alternated between disingenuous and incredible (not unlike his testimony at the trial in this matter). Among other things, the husband refused to acknowledge his own handwriting and generally gave evasive answers and shrugged his shoulders. On the other hand, the wife was candid and forthcoming in her responses. After carefully evaluating the evidence and assessing the credibility of the witnesses, the court found the wife to be infinitely more credible than the husband.

Citing other decisions, Justice Wood noted, “Matrimonial litigation in New York is expensive. It has been repeatedly recognized that in a fiercely contested case, the costs of the litigation can consume the marital estate of even an affluent couple.” “An award of an attorney’s fee is designed to redress the economic disparity between the spouses, it is not intended to address a party’s decision to proceed to trial rather than agree to a settlement.”

Describing Mr. Medina’s conduct during the proceeding, Justice Wood stated:

During the course of this litigation, the husband unnecessarily escalated the wife’s counsel fees in some of the usual, unsurprising, garden-variety ways. He failed to comply with court orders; he was constantly in arrears on support; and he failed to pay the wife significant unreimbursed medical and child care costs. He was late to court. He failed to timely comply with discovery requests and deadlines, and also failed to provide financial disclosures.

Beyond the typical conduct of a bitter and entrenched matrimonial litigant, the husband found new and unique ways of causing higher and unnecessary counsel fees to be incurred by the wife. For example, only while under cross-examination, the husband stared blankly, and either was confused or feigned confusion. His demeanor virtually confirmed the wife’s testimony regarding the husband’s alcohol and drug abuse. Frankly, at times he appeared to be having trouble getting the synapses in his brain to fire, yet it never seemed to inhibit his ability to be combative. He repeatedly offered only vague and obtuse answers, making it nearly impossible to assess his true earnings and earnings capacity.

In eight years as a full-time judge—presiding in multiple counties over matrimonial, criminal, and civil cases—this witness was the most consistently obstructive, least cooperative, cagiest, least candid witness that the court has observed. He frequently smirked and appeared to enjoy himself as he engaged in what appeared to him to be a verbal boxing match with opposing counsel. However, all too often the husband’s false bravado and clownish behavior only left his chin exposed. Presumably, the husband read the court’s Decision After Trial. But like a thoroughly beaten boxer hearing the judges’ lopsided unanimous decision go against him, and then having had plenty of time to consider retirement, he’s back. The husband eagerly stepped back in the ring with opposing counsel, punch-drunk as ever, for the hearing on fees. If nothing else, he was consistent, except this time he took a pratfall onto the canvas, mere moments after the bell rang.

Based upon this  record, Justice Wood found that Mr. Medina had prolonged the litigation in bad faith, causing the wife to incur significantly higher attorneys fees than reasonably should have been necessary.

Moreover, at the end of the day, even in light of the equitable distribution and support awards, the financial circumstances of the parties were not on par. Even after taking into consideration the maintenance and child support already awarded to the wife, the Court found that the husband had superior earning power. Based upon Mr. Medina’s earnings potential, and the continued financial difficulties he continues to bring upon the wife due to his failure to meet his obligations, Ms. Medina was entitled to relief.

The court also reviewed the value of the services rendered by the wife’s counsel, Marcia E. Kusnetz, Esq., of Rye Brook, her history before the court in other matrimonial matters, the immense time and effort devoted to the action, the nature of the services, the complexity of the matters and the results achieved.

In light of the husband’s recalcitrance and obstructionist tactics, which delayed the proceedings and increased the legal fees incurred by the wife, including the wife having to bring actions to enforce the court’s orders, the court awarded the wife $53,000 in counsel fees.

The Law Offices of Steven E. Rosenfeld, P.C., represented Mr. Medina.