Pokress v. Pokress
| Decision Date | 31 July 1972 |
| Parties | Mishella Robbins POKRESS, Plaintiff, v. Murray J. POKRESS, Defendant. |
| Court | New York Supreme Court |
Wallman, Kramer, Paley, Roemer & Duban, New York City, for plaintiff.
Frank E. Behrman, Hartsdale, for defendant.
The above entitled action for matrimonial relief has resulted in an inquest based upon the withdrawal by the defendant husband of his answer and counterclaim, the amendment by plaintiff of her complaint to seek a decree of divorce rather than a decree of separation as theretofore and the entry of a judgment of divorce in favor of the plaintiff and against the defendant.
There were reserved at the time of the inquest certain issues to be resolved and decided by the court. Briefly summarized, they are as follows: (1) A determination on a Quantum meruit basis of the value of legal services rendered by the former attorney for the plaintiff, as directed by an order of this court dated February 15, 1972. (2) A determination by the court of certain claims made by the plaintiff against the defendant which seek either a payment by defendant by such claims or a reimbursement to plaintiff of amounts advanced by plaintiff. (3) The determination of counsel fees for the present attorneys for the plaintiff.
With relation to the fees of the former counsel, it is to be noted that the order of referral also directs the hearing court to determine the party or parties responsible for the payment of such fees. It is to be noted both in connection with the application of the former attorneys as well as in connection with the application of the present attorney that this court in fixing such fees and directing their payment is guided by the provisions of section 237(a) () of the Domestic Relations Law which directs the court to enter an order 'to pay such sum or sums of money to enable the wife to carry on or defend the action or proceeding as, in the court's discretion, justice requires, Having regard to the circumstances of the case and of the respective parties.' (emphasis added) In the consideration of the person or persons who shall be required to pay such legal fees, the court is not required to mandate that the full financial burden of such an award be placed solely on the losing party. The court must review the financial circumstances of the respective parties and then fairly allocate the burden of payment of such fees between the parties. (Zacarolli v. Zacarolli, 57 Misc.2d 493, 293 N.Y.S.2d 237; Lane v. Lane, N.Y.L.J. 6/30/72, p. 15, col. 7.) As was stated in the case of Philips v. Philips, 1 A.D.2d 393, 396, 150 N.Y.S.2d 646, 650, affd. 2 N.Y.2d 742, 157 N.Y.S.2d 378, 138 N.E.2d 738, 'there must be a nice but realistic balancing of the wife's needs and her independent means for meeting them with the husband's abilities to pay'.
Concededly, the plaintiff is a woman of considerable financial resources. The affidavit of her attorney indicates her ownership of assets totaling at least $80,000. Attached to the affidavit of the former attorney is a photostat of some 7 pages of assets owned both by plaintiff and defendant indicating ownership by the parties to this litigation of substantial quantities of stock with the significantly greater bulk of the said shares of stock vested in the name of the plaintiff, cash in the amount of almost $11,000. and other miscellaneous assets. In addition, the parties jointly own certain shares of stock which are to be evenly divided between them as well as the marital home which is to be sold and the net proceeds to be divided equally between the parties.
It is against this financial background of both parties that the court makes the determinations concerning the counsel fees which are submitted to the court.
The affidavit of service of the former attorney discloses that he performed substantially the bulk of all legal services required to the time of trial save for the preparation and service of an amended pleading. The court has considered the stature of said counsel in the community as well as the detail of the services rendered by him both as to their nature and the time required for their performance and on a Quantum meruit basis, fixes their value at the sum of $2,000.
The court has considered the affidavit of services of the present attorney for the plaintiff bearing in mind the nature of the problems encountered, the services rendered, and the result procured. The court has further considered the time expended and to be expended by said counsel on behalf of the plaintiff. The court after a consideration of the relationship between the detailed services rendered and the litigation in which the services were rendered (see McKenna v. McKenna, 49 Misc.2d 563, 267 N.Y.S.2d 984) determines the value of the services of said attorney to be $3,000.
The court directs that the payment of said fees be allocated between the plaintiff and defendant as follows: plaintiff shall pay to her former attorney the sum of $1,500. and defendant shall pay to said former attorney the sum of $500. Plaintiff shall pay to her present attorney the sum of $2,500. which sum has already been paid to him by virtue of retainer, and defendant shall pay said attorney the sum of $500. The payments directed to be made by plaintiff and by defendant shall be made within thirty (30) days after service upon the attorneys for the plaintiff and/or defen...
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Kalimian v. Kalimian
...alimony "when allotted, measures the husband's duty of support" until it is vacated or superseded. Similarly, in Pokress v. Pokress, 71 Misc.2d 171, 335 N.Y.S.2d 861, the court, citing Turner, held that, in entering a final judgment of divorce, a court could not retroactively modify a tempo......