K.T. v. M.T.
| Decision Date | 24 November 2021 |
| Parties | In a Matter of a Support Proceeding Under Article 4 of the Family Court Act, K.T., Petitioner, v. M.T., Respondent. |
| Court | New York Family Court |
Unpublished Opinion
Dorothy Courten, Esq. for Petitioner;
Jeffrey Schechter, Esq. for Respondent.
On November 5, 2021, Petitioner timely filed objections (Objections) to the October 8, 2021 Order on Motion (K. L Coward, S.M.) (Order). The Objections were accompanied by a proper proof of service. No one filed rebuttal. The matter is now before this Court for decision on the Objections.
In reaching this Decision, this Court reviewed and relied on the motion brought by order to show cause, the cross-motion which includes a request for attorneys fees because the motion is frivolous and which constitutes the opposition to the motion the opposition to the cross-motion which is also captioned as a reply, and the Order.
Petitioner served two judicial subpoenas duces tecum, one on Gold Medal Gymnastics (Gold Medal Subpoena) and one on Teachers Federal Credit Union (TFCU Subpoena). The Gold Medal Subpoena bears a caption of a supreme court action. The TFCU Subpoena bears a caption of this family court special proceeding. Petitioner sent the subpoenas to Respondent, who stood mute upon receipt. Petitioner received responsive documents to the TFCU Subpoena and sent copies thereof to Respondent approximately three days later. Respondent stood mute for another three weeks before filing the motion brought by order to show cause.
The motion sought relief because the Petitioner issued a judicial subpoena duces tecum seeking disclosure (see, CPLR art 31) in a special proceeding without leave of court as required by the black letter language of CPLR 408 which is incorporated into the Family Court Act (Family Court Act § 165). Insofar as relevant here, the Order directed Petitioner to pay attorneys fees of $2, 000.00 to Respondent in respect of the motion practice related to the subpoenas. Although paragraph 'f' of the order to show cause sets forth a request for sanctions (22 NYCRR 130-1.1) in the amount of the attorneys fees Respondent incurred, the Order cites only to the discretionary authority of the family court to award attorneys fees (Family Court Act § 438 [a]). Thus, the attorneys fees award of $2, 000.00 was discretionary, and the Support Magistrate did not find the Petitioner's conduct frivolous.
The Petitioner objects, as limited by the Objections, to the award of attorney fees.
"The Court (Support Magistrate) notes a trial on the underlying action commenced on June 8 and continued on July 29" (Order on Motion at 1). Those dates appear to be in 2021. Petitioner filed the petition on July 9, 2020, one day shy of eleven months before the trial began. These parties' child support disagreement remains unresolved, and the next scheduled trial date is December 20, 2021 (Guide to NY Evid rule 2.01, Judicial Notice).
The general language in the order to show cause is sufficient notice to the Petitioner that the Court or the Respondent might seek to convert the sanctions application to a discretionary attorneys fees application (Matter of Perso v Perso, NYLJ, Feb. 8, 2019 at 42 [Family Ct Suffolk County 2019] [Hensley, AJFC]). The implicit conversion demonstrates that the Support Magistrate found the Petitioner's lawyer's conduct non-frivolous. This Court honors that finding by not finding Respondent's lawyer's conduct as set forth below frivolous even though both attorneys appear to have acted in direct contravention of controlling legal authority in this case which has already dragged out for over 17 months.
An aggrieved party may file objections to a final order of a support magistrate (Family Court Act § 439 [e]). "The concept of finality is a complex one that cannot be exhaustively defined in a single phrase, sentence or writing (see generally, Cohen and Karger, Powers of the New York Court of Appeals § 9, at 39; Scheinkman, The Civil Jurisdiction of the New York Court of Appeals: The Rule and Role of Finality, 54 St John's L Rev 443). Nonetheless, a fair working definition of the concept can be stated as follows: a "final" order or judgment is one that disposes of all of the causes of action between the parties in the action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters (see generally, Cohen and Karger, op. cit., §§ 10, 11) (Burke v Crosson, 85 N.Y.2d 10, 15, 623 N.Y.S.2d 524, 527 [1995]).
Merely because an order resolves a motion, the order is not necessarily a final order (Matter of Tobing v May, 168 A.D.3d 861, 92 N.Y.S.3d 299 [2d Dept 2019] []). Moreover, one or more of the parties might differently evaluate the appellate process regarding a motion of which objections are a part (e.g., Matter of Musarra v Musarra, 28 A.D.3d 668, 814 N.Y.S.2d 657 [2d Dept 2006]) after the merits of the proceeding are resolved. Although the portion of the Order to which Objections were filed has less to do with the substantive outcome of the special proceeding than does the Order's impact on Petitioner's ability to secure information about Respondent's financial condition, the question of what constitutes a final order should be taken not on a segmented or compartmentalized view but on an overall view of the order at issue. In other words, a party's structuring of objections should not drive the analysis of whether an order is final or interlocutory.
Here, because the Petitioner could have objected to more of the order (this Court expressing no opinion on the likely outcome of those as-of-now hypothetical objections) and because those other aspects of the order would have been brought up by objections to a final order of support or dismissal (cf. CPLR 5501), the Order is an interlocutory order.
Anything not a "final order" is an interlocutory order (Matter of Fischer v Fritzch, 35 A.D.3d 1146, 827 N.Y.S.2d 732 [3d Dept 2006]) and, therefore, not subject to the objection process unless the aggrieved party demonstrates irreparable harm (Matter of Tobing v May, 168 A.D.3d 861, 92 N.Y.S.3d 299 [2d Dept 2019]). Where the harm is financial and the burden of continuing the special proceeding with the attendant expenses related to litigation, the harm is not irreparable (Id.). However, if the family court acts without power and authority irreparable harm arises (Matter of McGrath v McGrath, 166 Misc.2d 512, 633 N.Y.S.2d 694 [Erie County Family Ct 1995] cited by Matter of Tobing v May, 168 A.D.3d 861, 92 N.Y.S.3d 299 [2d Dept 2019]).
A party seeking an award of attorneys fees must prove compliance with 22 NYCRR 1400.2 and 22 NYCRR 1400.3 (Matrimonial Rules) in the party's moving papers (Gottleib v Gottleib, 101 A.D.3d 678, 957 N.Y.S.2d 132 [2d Dept 2012]). Matter of Tarpey v Tarpey (163 A.D.3d 687, 81 N.Y.S.3d 426 [2d Dept 2018]) reversed the denial of objections to an award of attorneys fees. In Tarpey, like in Gottleib, the movant's motion papers did not show substantial compliance with the long-ago enacted regulations, and the Second Department vacated the attorneys fee award.
The absence of essential (required) allegations of facts makes the application for attorneys fees in a matrimonial matter subject to dismissal for failure to state a cause of action (CPLR 3211 [a] [7]; Swergold v Weinrib, 193 A.D.3d 1094, 147 N.Y.S.3d 112 [2d Dept 2011]). That means that the pleadings, on their face, failed to invoke the subject matter jurisdiction of the court. In Swergold, the attorney's motion papers did not establish compliance with the Matrimonial Rules.
Here, the movant's papers are bereft of evidence that the movant's attorney substantially complied with the black letter language of 22 NYCRR 1400.2 which relates to one issue- providing a client with a verbatim copy of the statement of client's rights and responsibilities and obtaining a signed "acknowledgment of receipt from the client" (22 NYCRR 1400.2). Respondent's attorney included in the papers in support of the motion brought by order to show cause an affirmation from that attorney that contains a mixture of allegations of fact and positions and arguments of law (but see, 22 NYCRR 205.11 [b]). "Annexed [to the affirmation of Respondent's attorney] as Exhibit "D" is a copy of Respondent's retainer agreement with this firm for this matter" (Affirmation of Respondent's attorney dated September 17, 2021 [emphasis in original] [hereafter, Atty Aff]).
The last paragraph of the retainer agreement sets forth:
Kindly acknowledge that you have been provided with and have read the Statement of Client's Rights and Responsibilities, a copy of which is attached to this Retainer Agreement. Indicate your understanding and acceptance of the above by signing the letter below where indicated. We look forward to being of service to you in connection with this matter.
(Atty Aff, Exhibit D at 5). The client's signature is absent from the retainer agreement. Moreover, even if the client signed the retainer agreement which, for purposes of this motion, the attorney admits that the Respondent did not, the attorney promised to attach the specific statement of client's rights and responsibilities that someone (and not necessarily the attorney, based on the passive voice construction of the first quoted sentence) previously provided to the client. The attachment is absent from the retainer agreement. Exhibit D is five pages and has no attachments to the retainer agreement.
22 NYCRR 1400.3 requires...
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