Holbrook v. Holbrook

• Decision Date: 11 April 1996
• Parties: Susan P. HOLBROOK, Respondent, v. Craig A. HOLBROOK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 641

640 N.Y.S.2d 641

226 A.D.2d 831

Susan P. HOLBROOK, Respondent, v. Craig A. HOLBROOK, Appellant.

Supreme Court, Appellate Division Third Department.

April 11, 1996.

Kahn & Richardson (Nicholas E. Tishler, Niskayuna, of counsel), Albany, for appellant.

Joanne M. White, Latham, for respondent.

Before MIKOLL, J.P., and CREW, CASEY, YESAWICH and PETERS, JJ.

YESAWICH, Justice.

Appeal from an amended order of the Supreme Court (Canfield, J.), entered October 25, 1994 in Rensselaer County, which granted plaintiff's motion for, inter alia, counsel fees.

In this divorce action, commenced in 1993, defendant appeals Supreme Court's determination, made following a hearing, granting plaintiff interim counsel fees and experts' fees. The award of $10,000 for counsel fees already incurred, payable directly to plaintiff's attorney, was not unreasonable given plaintiff's inability to pay those fees from her own limited funds (see, Marr v. Marr, 181 A.D.2d 974, 975, 581 N.Y.S.2d 873; Weber v. Weber, 156 A.D.2d 189, 548 N.Y.S.2d 445), the parties' disparate incomes, assets and expenses (see, DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168; Wong v. Wong, 161 A.D.2d 710, 711, 555 N.Y.S.2d 847), and the fact that a significant portion of the legal expenses with which plaintiff has been burdened are the product of defendant's dilatory tactics and obfuscation (see, Cinnamond v. Cinnamond, 203 A.D.2d 229, 230, 610 N.Y.S.2d 276). The record evidence indicates that defendant earns approximately $50,000 per year (after deducting the maintenance he pays to plaintiff), and also has interest and dividend income, while plaintiff's annual income (including the spousal support she receives from defendant) approaches $33,000. Considering the amount each must expend to support their child, and their other necessary expenses--significantly, plaintiff has to pay rent, while defendant does not, and plaintiff also has several outstanding loans for past legal expenses, and necessities such as household furniture--Supreme Court cannot be faulted for concluding that defendant has substantially more disposable income than plaintiff. In addition, defendant possesses (or did, at the time this application was made) several major assets--including a house, 26 acres of land, stock of two companies, and numerous vehicles and bank accounts--many of which, plaintiff maintains, constitute marital property.

Examination of the record also discloses that defendant has been less than forthcoming with respect to, among other things, the sources and dispositions of the funds in several bank accounts he opened during the marriage, forcing plaintiff--through her attorney--to make repeated efforts, culminating in the service of a subpoena, to obtain this information. Furthermore, it was necessary for plaintiff's counsel to spend additional time to determine which of defendant's holdings derive from marital assets, and to trace those assets through the many fund transfers and other cryptic transactions defendant engaged in over the years, both during the marriage and since the litigation began. Plaintiff is hard pressed to come up with the...