Cary v. Cary
| Citation | 94 Misc.2d 257,404 N.Y.S.2d 534 |
| Parties | Michele A. CARY, Plaintiff, v. Donald S. CARY, Defendant. |
| Decision Date | 27 April 1978 |
| Court | United States State Supreme Court (New York) |
Jaeckle, Fleischmann & Mugel, Buffalo (Walter Donnaruma, Kingston, of counsel), for defendant.
The plaintiff has moved for counsel fees to respond to an appeal taken from an earlier decision of this Court. The defendant seeks a declaration that Section 238 of the Domestic Relations Law is unconstitutional.
The parties were married on July 13, 1962 in Niagara County, New York. They entered into a separation agreement which was incorporated into a judgment of divorce granted on July 5, 1972 in the Commonwealth of Massachusetts. This has prompted numerous motions and procedures commenced by both parties.
In June of 1977, plaintiff moved pursuant to Section 244 of the Domestic Relations Law for payment of alimony arrearages and counsel fees. We granted that motion and in so doing rejected the defendant's claim that Section 244 was unconstitutional. Defendant has appealed from that decision and the instant controversy ensued.
Since we have earlier determined that the plaintiff was entitled to counsel fees, it would be inconsistent to deny them at this juncture. Roscini v. Roscini, 45 A.D.2d 254, 357 N.Y.S.2d 227; cf. also Klein v. Klein, 53 A.D.2d 579, 384 N.Y.S.2d 1005. Denial would permit a party to ignore its obligation to pay counsel fees merely by appealing from a judgment awarding them.
Defendant has made no showing of a change in circumstances of either party since the earlier motion. An award of counsel fees is not dependent on a party's indigency but rather on all the circumstances involved. Resslhuber v. Resslhuber, 57 A.D.2d 552, 393 N.Y.S.2d 70, and a successful appellant will be entitled to counsel fees in any event. Goldsmith v. Goldsmith, 56 A.D.2d 834, 392 N.Y.S.2d 69. The plaintiff has previously shown a need for counsel fees. Therefore her motion must be granted unless, as defendant argues, the statutes permitting such an award are unconstitutional.
The defendant has attacked Section 238 and implicitly Section 237 of the Domestic Relations Law as discriminatory. The defendant bases his argument on decisions which hold that statutes which command dissimilar treatment for men and women who are similarly situated are unconstitutional, Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583; Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514; Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270; Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397; Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225. We agree with those decisions and that such statutes which command dissimilar treatment for those similarly situated (emphasis supplied) are unconstitutional. The statutes in question do not require such treatment, however. In fact, when considered in light of decisions interpreting these, they prohibit such a result. Each section requires the Court to have regard for all the circumstances of each party. Kover v. Kover, 29 N.Y.2d 408, 328 N.Y.S.2d 641, 278 N.E.2d 886 and Kay v. Kay, 37 N.Y.2d 632, 376 N.Y.S.2d 443, 329 N.E.2d 143, set forth the criteria to be used in determining whether alimony and/or counsel fees shall be awarded. They require an inquiry into the resources of each party and their ability to provide for themselves prior to an award. Traditionally, it is the wife who has received the benefit of these statutes and the statutory language may seem to preclude an award to a husband who is in need. Courts have been willing to interpret provisions which appear to be restrictive so as to permit an award to male litigants. Thaler v. Thaler, 89 Misc.2d 315, 391 N.Y.S.2d 331, revd. on other grounds 58 A.D.2d 890, 396 N.Y.S.2d...
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