Piccarreto v. Mura

Decision Date03 July 2013
PartiesCarla L. PICCARRETO f/k/a Carla L. Mura, Plaintiff, v. David James MURA, Defendant.
CourtNew York Supreme Court

41 Misc.3d 295
970 N.Y.S.2d 408
2013 N.Y. Slip Op. 23241

Carla L. PICCARRETO f/k/a Carla L. Mura, Plaintiff,
David James MURA, Defendant.

Supreme Court, Monroe County, New York.

July 3, 2013.

[970 N.Y.S.2d 410]

Maureen Pineau, Esq., attorney for plaintiff.

David James Mura, pro se.

Mark Chauvin Bezinque, Esq., Charging Lienor.


In this post-divorce dispute, the wife seeks to dismiss a charging lien against a long-ignored, but recently recovered, child support obligation. The lien is asserted by her former counsel, who rigorously prosecuted the recovery action.

The facts are undisputed. A default divorce occurred in 1993, the husband was ordered to pay child support, and the court in 1993 awarded a judgment for $25,226.72 in unpaid child support. Thereafter, in a series of events described in a prior opinion of this court, the parties engaged in repeated court appearances in the mid–1990s. When the dust settled, the original judgment of divorce remained in full force and effect. In 2012, the wife moved, originally in family court, to recover all the accumulated child support, which with accumulated interest, totaled $549,403.62 as of September 2011. This court eventually upheld the earlier 1993 money judgment. The husband, whose counsel discovered a missing oral stipulation from the alleged settlement of the child support disputes in 1995, moved to set aside the judgment and for further relief in 2012. This court denied that request in an earlier opinion.

[970 N.Y.S.2d 411]

After the court affirmed the earlier judgment, extensive settlement negotiations ensued. The husband eventually moved to modify his on-going child support obligation based on his current income and the emancipation of his oldest son. In the midst of these legal steps, the husband sold a house and this court, through an order sought by the wife's counsel, allowed the wife to escrow the husband's share of the net proceeds, in anticipation of a final judgment for unpaid child support. The husband made financial disclosure to the court, and argued that he was without significant income or other financial resources. Even so, during the settlement discussions, the husband offered to pay in excess of $150,000 in full satisfaction of the prior judgment and any support arrears. The wife declined to accept this amount and elected to pursue the litigation.

During the course of the wife's pursuit of her ex-husband, wife's counsel applied for interim attorney fees. Wife's counsel sought the fees from the sequestered proceeds from the husband's sale of his real property. In an order issued July 12, 2012, this court granted fees of $15,000 to the wife's counsel and allowed this sum to be paid from the house proceeds, which were held in escrow by the husband's attorney. Husband's counsel argued that the fees, on their face, were the property of the husband. As a consequence, husband's counsel requested $5,000 in fees to cover the husband's legal expenses, or he would be without resources to finance a defense to the claims of the wife. This court granted that request as well. Importantly, at the time of the application for counsel fees, the court made no finding regarding the appropriate child support to be paid by the husband. Under the terms of the original divorce decree, he was required to pay health insurance costs for the children, and in recent court appearances, his counsel argued that he was entitled to an offset against child support for that cost.1

There has been no determination what amount of the house sale proceeds are necessary to pay any child support arrears owed by the husband. This court has not heard proof on any claimed offsets against the child support obligation. Furthermore, this court is struck by the current legal position of the wife, who, after delaying 16 years, now seeks to recover child support. The children, who were the intended beneficiaries of the support, are either emancipated or nearly emancipated. In affidavits submitted earlier, the wife suggests she made applications for welfare and food stamps while living at her mother's house at the time of the divorce in the mid–1990s, but there is no evidence before this court that the wife had incurred any financial consequences as a result of the husband's failure to pay child support for 16 years. There is no evidence that the children suffered any deprivation because of the husband's failure to pay child support. Against this background and during the midst of serious settlement negotiations, wife's counsel moved to withdraw, citing friction with his client and her failure to communicate with him. The attorney also sought judgment for fees in the amount $30,545.91, and a charging lien under Section 475 of the Judiciary Law against the house proceeds set aside by the court under its earlier order.

In advance of the return date of the husband's motion, the wife retained new counsel, who cross-moved to dismiss the attorney's claim for a charging lien, and

[970 N.Y.S.2d 412]

sought disgorgement of the sums advanced to both the wife's former counsel, and husband's counsel. Wife's new counsel argued that those sums were erroneously paid from the “wife's child support.” Wife's new counsel claims that the prior counsel cannot have a charging lien against child support, and cannot, under any circumstances, be paid attorney fees from the wife's child support. He argues that the former attorney did not create any “new funds” on which the charging lien under Section 475 of the Judiciary Law could attach because the entire amount owed to the wife was child support and no liens are permitted against child support. Wife's counsel also disputes the former attorney's compliance with several portions of the New York rules of court.

The wife's former attorney argues that the wife should be estopped from rejecting the charging lien because she made repeated unequivocal promises to pay him during the period of his work for her. The attorney produced an email from the wife, in which she states, “First person I would pay when I get the lien money is you.” The former attorney also claims that his efforts—filing judgments and commencing actions to recover the funds in separate counties—created a recovery which benefits the wife and hence, constitutes “new funds” under the charging lien statute. The former attorney also strongly disputes any disgorgement application, noting the wife did not oppose the application for interim attorney fees. He contends, without contradiction, that the wife received monthly billing statements and never objected to the billed fees. He further argues that if the court declines to confirm the award of interim fees, then “any award of attorneys fees, perhaps even the charging of any fee, would be prohibited where child support arrears are sought.” The husband's attorney, who received $5,000 in interim attorneys fees, also argues that the disgorgement claim is simply a collateral attack on the July 12, 2012 order and that the time to appeal has expired. The husband's former counsel joins the wife's former counsel in arguing that the judgement for child support from 1993 does not dictate that all of the husband's assets—including the house sale proceeds—“constitute child support arrears.”

Initially, from this court's perspective, a number of factual clarifications must be made. First, at this stage, the sums held in escrow have no identifying characteristic and the court has made no finding of what portion of these funds are owed to the wife as child support. There is no question that the wife asserts a claim to the entire fund as unpaid child support. The amount held in escrow is substantially less than the amount claimed by the wife, even without interest, but exceeds the amount of the 1993 judgment for child support in the amount of $25,226.72. Second, there is also no dispute that this court, in granting an order to sequester the house sale proceeds, knew that these funds were, at this point, the only source of available cash to pay either the current judgment or any future judgment to the wife for unpaid child support. Third, the order granting the attorney fees to be paid to wife's counsel and husband's counsel from the sums held in escrow is more than eight months old. There was no appeal of that disbursement order. Therefore, it constitutes a final order. Fourth, while wife's current attorney claims the former attorney “did not create an interest in anything,” in fact, his legal work, after a delay of 16 years, has actually created the only available money to pay amounts owed by the husband to his wife. Prior to the former attorney's work, the wife had a 16–year–old judgment and a child support order, which she had never enforced against her former husband. The former

[970 N.Y.S.2d 413]

attorney immediately commenced a family court action in Ontario County, transcribed the original judgment and sought to enforce it. But for the former attorney's work—just as the husband was selling his Ontario County house—the wife would now have no available funds to satisfy the child support obligation. It is undisputed that the former attorney's efforts to collect the judgment created a readily-available fund of house sale proceeds from which the wife may soon collect heretofore only illusory decades-old child support obligations owed by the husband. Faced with these facts, the court must decide the question of whether the former attorney's charging lien against these funds is justified. This complex issue involves seemingly contradictory statutory rights and requirements under the Judiciary Law, the Domestic Relations Law, and the Civil Practice Law and Rules.

An Attorney's Charging Lien

Section 475 of the New York Judiciary Law contains broad language regarding the extent of an attorney's charging lien:

... the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report,...

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    ...Plaintiff are true, the allegations in Count 5 fail to properly set forth a cause of action for disgorgement. See Piccarreto v. Mura, 970 N.Y.S.2d 408, 426 (Sup. Ct. 2013) ("[D]isgorgement may not stand as an independent cause of action as disgorgement of payments is really a damage claim."......
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