Block v. Block

296 A.D.2d 343, 746 N.Y.S.2d 15, 2002 N.Y. App. Div. LEXIS 7482

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 18, 2002
• Status: Published

Opinions

Order, Supreme Court, New York County (Judith Gische, J.), entered on or about September 20, 2001, which, inter alia, directed defendant husband to pay plaintiff wife’s attorneys $35,000 in unallocated interim counsel and expert fees, unanimously affirmed, without costs or disbursements. Order, same court and Justice, entered on or about December 11, 2001, which granted the wife’s motion for, inter alia, additional counsel fees to defend against the husband’s appeal from the prior order, and directed the husband to pay the wife $15,000 in interim legal fees for said purpose, reversed, on the law, the facts and in the exercise of discretion, without costs or disbursements, and the motion denied.

In awarding unallocated interim counsel and expert fees in the amount of $35,000 to assist the wife in preparing for the forthcoming trial to determine the value of the fees due the husband, an attorney, for his representation of clients in personal injury cases, the IAS court properly took into consideration the relative financial circumstances of the parties (see, Charpié v Charpié, 271 AD2d 169) as well as the nature and extent of the issues to be litigated, as to which the court was uniquely positioned to assess.

The same, however, cannot be said with respect to the award of interim counsel fees in defending the appeal of the interim $35,000 award. There can be no dispute that a spouse, on a proper showing, is entitled under Domestic Relations Law § 237 to counsel fees for representation during the appellate process (see, Anostario v Anostario, 252 AD2d 895.) We find, however, no justification, either on the basis of need or fairness, for the award of $15,000 in interim fees to defend against the appeal of the earlier $35,000 award. The wife earns a substantial income, approximately $100,000 annually, receives $49,000 yearly in child support and expenses, has assets of $142,000, has previously been awarded $87,750 in legal fees, aside from the $35,000 awarded in the September 20, 2001 order under review, which we are affirming, as well as $31,081.43 in expert fees, and has already received $216,000 in equitable distribution to be supplemented by a further distribution after resolution of the valuation of the contingency fee cases. In the absence of financial hardship and any showing as to the estimated value and extent of the legal services contemplated, neither of which is demonstrated here, a trial court should not award interim attorneys’ fees prospectively for an appeal. It is not, as the dissent suggests, the lack of “an exact breakdown” as to the “expected cost of the appeal” which we find troubling, but rather the total absence of any showing whatever as to the anticipated cost or value of the services contemplated in connection with the appeal. Surely, if counsel is able to estimate the cost of the appeal at $25,000 it is not asking too much to require him to make some showing as to the contemplated services justifying such an award.

Moreover, a trial court should strive to avoid the appearance that it is punishing a litigant for pursuing his or her right to appeal. The fact that, in appealing from the award of $35,000 in interim counsel fees, the husband might be viewed as pursuing a “scorched earth” tactic, as charged by the wife, does not justify an award that serves, in effect, as a sanction for taking an appeal. Moreover, although that is not the case here since the husband perfected his appeal, courts should take pains to assure that an award of an additional fee to defend against an appeal of an award of a fee does not act as a deterrent to the review of the original award.

Finally, we are asked to affirm the award of a $15,000 fee, granted after a request for $25,000, for which no showing as to the extent of the services to be rendered or hours expended has been made. While an appellate court, concededly, has the authority, and is in a better position than a trial court, to assess the extent of the legal services and their reasonable value in connection with the appeal it has heard, all that we have before us is an 11-page respondent’s brief in an appeal that was submitted, not argued. Small wonder that there is such widespread criticism of the high cost of matrimonial litigation. (See, Charpié v Charpié, supra, 271 AD2d at 170-171; see also, Robert S. Cohen and Pamela A. Sicher, Perspective, Defusing the Matrimonial Minefield, NYLJ Mar. 9, 1993, at 2, col 3; David B. Saxe, Perspective, Reflections on Matrimonial Lawyers, Judges and Practice — Part I, NYLJ, Jan. 8, 1993, at 2, col 3.)

On any future application for fees and on a proper showing, the IAS court may, of course, consider the reasonable services rendered herein as part of the continuum of services required in representing the wife.

With respect to the alarmist tone of the dissent, we would merely point out that we have left open the opportunity for the payment of counsel fees in the defense of this appeal and have set forth the standard for the award of a prospective fee in such a case. As we have noted, no showing was made here. We believe, moreover, that vacatur, not pruning, is the only appropriate response to an award of $15,000 granted solely on the following submission by plaintiff on the motion: “Plaintiff should be awarded $25,000 counsel fees to defend against defendant’s appeal to the Appellate Division. She cannot possibly afford to fund that effort herself, and of course defendant knows it.” Concur — Nardelli, J.P., Buckley and Sullivan, JJ.