McKenna v. McKenna

• Decision Date: 14 February 1966
• Citation: 49 Misc.2d 563,267 N.Y.S.2d 984
• Parties: Mary R. McKENNA, Plaintiff, v. Richard M. McKENNA, Defendant.
• Court: New York Supreme Court

Page 984

267 N.Y.S.2d 984

49 Misc.2d 563

Mary R. McKENNA, Plaintiff, v. Richard M. McKENNA, Defendant.

Supreme Court, Westchestor County.

Feb. 14, 1966.

Virgil P. Tampone, Ardsley, for plaintiff.

Samuel S. Weiner, Yonkers, for Deborah Magenheim, as executrix of estate of Erwin Magenheim.

Tashof Sobler & Rothenberg, New York City, for defendant.

JOHN H GALLOWAY, Jr., Justice.

This is a motion by the widow of plaintiff's attorney for an order amending previous orders for counsel fees heretofore awarded in this matrimonial action. By orders entered prior to the decease of plaintiff's attorney, he was awarded a total of $1,500.00 in counsel fees, of which $1,250.00 has been paid in accordance with the orders. One of the prior orders was for $1,000.00 for additional counsel fees to defend a counterclaim of adultery interposed by the husband in the plaintiff wife's separation action. Neither the separation action nor the issues of adultery were brought to trial prior to the demise of the plaintiff's attorney on September 21, 1965.

For approximately 14 months between the entry of the first order awarding counsel fees to the plaintiff's attorney and the date of the attorney's demise, the parties were in protracted settlement negotiations, which had culminated in the preparation of a proposed separation agreement, which was agreed to but never executed by the plaintiff wife. The proposed agreement provided for payment of counsel fees to plaintiff's deceased attorney by defendant husband in the sum of $5,500.00 '* * * for legal services and expenses rendered in the wife's instance and behalf in connection with the litigation * * * pending in the Supreme Court * * * and the preparation of this agreement * * * against which the husband has paid the sum of $1,250.00, leaving a balance due and owing to the said Mrs. Magenheim in the sum of $4,250.00.' By deducting from the amount of $5,500.00, the amounts previously paid pursuant to the court orders, the deceased attorney's widow now seeks to amend the prior orders for counsel fees before the trial of the action to provide for an additional $4,250,00.

The attorney for the widow, petitioner herein, posits this application on Section 237(a) of the Domestic Relations Law, which he contends, by virtue of recent amendments, provides a basis for the application. To support his position, he has referred the court to the Practice Commentary by Professor Siegel, (Section 237 McKinney's Consolidated Laws, Book 14, Pages 283-296) and particularly at page 286 where it is stated: 'All of the lawyer's activities should be susceptible of recognition in a counsel fees award under section 237.' It is alleged that for nearly 15 months the deceased attorney atrove diligently and with long hours of labor to resolve this difficult marital situation by means of a separation agreement, and that his work had been 99% accomplished, but for his untimely demise and the subsequent change of position by the plaintiff in her refusal to sign the agreement.

The question presented hinges on an interpretation of the word 'activities' as used in the commentary, and of the language of Section 237(a). In opposition to petitioner's application, it is argued that the activities referred to in the discussion by Professor Siegel relate to activities in the matrimonial action, and not to such extra curricular activities in which the attorney may become involved in the negotiation of a separation agreement. Our reading of Section 237(a) and the Commentary leads us to a stricter construction thereof, than here urged by petitioner, and to the conclusion that the awards of counsel fees therein provided are for services rendered or to be rendered in the prosecution or defense of the actions therein specified.

Professor Siegel notes that former Section 1169 of the Civil Practice Act (from which Section 237(a) is in part derived) provided for the court requiring the husband to pay counsel fees to enable to wife to carry on or defend and action for separation or divorce '* * * during the pendency thereof', and that the quoted phrase has been omitted in Section 237(a). He argues that, absent such phrase, there appears to be no basis upon which to distinguish activities of the attorney in the wife's behalf before commencement of the action from such activities after the...