Puera v. Puera

• Court: New York Supreme Court
• Writing for the Court: COLLEEN DUFFY
• Citation: Puera v. Puera, 2010 NY Slip Op 51480, 28 Misc.3d 1224, 958 N.Y.S.2d 310 (N.Y. Sup. Ct. 2010)
• Decision Date: 19 August 2010
• Docket Number: No. 6059–07.,6059–07.
• Parties: Sharon PUERA, Plaintiff, v. Daniel PUERA, Defendant.

28 Misc.3d 1224

958 N.Y.S.2d 310

2010 N.Y. Slip Op. 51480

Sharon PUERA, Plaintiff,

v.Daniel PUERA, Defendant.

No. 6059–07.

Supreme Court, Westchester County, New York.

Aug. 19, 2010.

David M. Rossoff, Esq., Law Offices of Carton & Rosoff, P.C., White Plains, NY, Attorney for Plaintiff.

William T. Burke, Esq., O'Neil & Burke, LLP, Poughkeepsie, NY, Attorney for Defendant.

COLLEEN DUFFY, J.

On June 15, 2010, Plaintiff filed a Notice of Motion seeking an award of attorney's fees in this action for divorce. Plaintiff requests that the $13,000.00 currently held in an escrow account ¹ be released to Plaintiff's counsel to pay his fees and seeks an order requiring Defendant to pay an additional $10,000.00 of Plaintiff's legal fees.² Plaintiff also requests that Defendant be ordered to pay $4,200.00 as reimbursement of child care and medical expenses, an amount Defendant previously had stipulated to pay but which amount remains unpaid to date.

In her affidavit in support of her motion, Plaintiff has averred that she accrued $46,025.00 in total legal fees as well as $366.00 in costs related to the matrimonial proceeding. Plaintiff Aff. at ¶ 7. Plaintiff also has averred that $13,284.00 in legal fees incurred remains outstanding to date. Plaintiff also has averred that she paid the other portion of her legal fees via credit card and that she now has amassed significant credit card debt—in excess of $40,000—in large part due to payment of these legal fees. Plaintiff Aff. at ¶¶ 6 and 8.

On July 19, 2010, Defendant filed an opposition to Plaintiff's motion via Affidavit of Daniel Puera, sworn to July 13, 2010 (hereafter “Daniel Puera Aff.”). Defendant contends that the fees sought by Plaintiff are unfair and unreasonable. Defendant argues that he has voluntarily paid joint marital debt, totaling $46,472.00 and remains liable, as guarantor, for debts accrued from Plaintiff's wife's failed business. Additionally, Defendant contends that an examination of Plaintiff's attorney's bills reveals that the monies sought to be recovered relate to matters other than the action for divorce; Defendant specifically points to work performed by Plaintiff's counsel that related to the family offense petitions filed by Plaintiff and custody issues in Family Court. Defendant argues that an award of payment of fees related to this work would be improper. Defendant asserted no opposition to Plaintiff's request for the $4200.00 for child care and medical expenses.

On July 26, 2010, Plaintiff filed a Reply Affirmation of David M. Rosoff, Esq. in further support of Plaintiff's motion.

HISTORY OF PROCEEDINGS

On May 18, 2010, the parties appeared before this Court and, represented by counsel, agreed to stipulate to a settlement of the matter which was set forth on the record; the stipulation is to be incorporated, but not merged, into the parties' forthcoming judgment of divorce.

The stipulation of settlement provided, among other things, that Defendant consented to the granting of the divorce to Plaintiff on the grounds of constructive abandonment. See Tr. at pp. 3–4. The parties also agreed as to their rights with respect to certain real and personal property and how pension rights would be determined. Id. at pp. 4–6. With respect to marital debt, the parties agreed that the marital debt had been satisfied and that neither would make any claim against the other with respect to the marital debt “or any offsets.” Id. at p. 6, lines 8–11. The parties also stipulated that Defendant would pay $4,200.00 in child care and medical expenses to Plaintiff in compliance with a prior family court order, upon Defendant's confirmation of these expenses. Id. at pp. 6–7. If the child care and medical providers required Plaintiff's authorization before they would communicate with Defendant, Plaintiff agreed to sign such an authorization, at Defendant's request. Id.

Finally, as part of the stipulated settlement, the parties agreed that the distribution and allocation of $13,000.00 from the sale of the marital home, currently held in escrow by Plaintiff's attorney, would be determined by the Court in conjunction with an application by Plaintiff for payment of her counsel fees.

CONCLUSIONS OF LAW

For the reasons discussed below, and having considered the equities and circumstances of this case, the parties' respective financial positions, and the fees requested, the Court finds that Plaintiff is entitled to an award of counsel fees as against Defendant in this matter and that the amount requested is reasonable. Benzaken v. Benzaken, 21 AD3d 391, 392, 799 N.Y.S.2d 579, 580 (2nd Dept 2005).Turning first to the allocation and distribution of the $13,000.00 remaining in the escrow account from the sale of the marital home, the Court finds that these monies should be shared equally between the parties. Equitable distribution law requires that “marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.” DRL 236, Part B(5). Defendant admits that the marital home was the “main asset of the parties,” Daniel Puera Aff., p. 1, ¶ 5, and does not dispute that the proceeds should be divided equally between the parties.³ Although Plaintiff appears to equivocate about whether or if the escrow should be distributed equally or all should go to her ( see e.g. Plaintiff's Aff. at ¶¶ 7, 10 and 15), the Court finds that the home was a marital asset and that, given the facts of this case, its proceeds should be equally shared. Meza v. Meza, 294 A.D.2d 414, 415 (2nd Dept.2002)(marital assets split 50/50 since division should be as equal as possible in marriage of long duration, where each party made equal contributions to the marriage); Perri v. Perri, 97 A.D.2d 399, 400 (2nd Dept.1983).

As noted below, with respect to the distribution of such escrow funds and, for the reasons set forth further herein, the Court grants Plaintiff's counsel permission to withdraw the entire remaining amount of $13,000.00 in escrow—both Plaintiff's share and Defendant's share—to be used toward payment of legal fees incurred by Plaintiff.

Domestic Relations Law Section § 237(a) provides that “[i]n any action or proceeding brought ... for a divorce ... the court may direct either spouse ... to pay such sum or sums of money directly to the attorney ... as, in the court's discretion, justice requires.” Domestic Relations Law § 237 is designed to redress the economic disparity between the monied spouse and the non-monied spouse. O'Shea v. O'Shea, 93 N.Y.2d 187, 190, 711 N.E.2d 193, 195 (1999).

The award of attorney's fees is within the sound discretion of this Court as the Court is in the best position to judge the factors integral to determining counsel fees, such as the time, effort, and skill required. Benzaken, 21 AD3d at 392. In determining whether to award counsel fees, the Court must evaluate the respective financial circumstances of the parties and value of the services rendered. DeCabrera v. DeCabrera–Rosete, 70 N.Y.2d 879, 881, 518 N.E.2d 1168, 1169 (1987); Prichep v. Prichep, 52 AD3d 61, 63 (2nd Dept.2008). Other factors the Court may consider are the respective merits of each party's positions, and whether a party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation. Prichep, 52 AD3d at 63.

In this case, Defendant now earns significantly more than Plaintiff. Defendant's adjusted gross income is $65,000.00, while Plaintiff's is only $17,000.00. Plaintiff contends that she currently pays many of her bills using credit cards, including legal fees, and that she has amassed a credit card debt in excess of $40,000.00, due mainly to such legal fees. Plaintiff further contends that her current financial position is directly related to Defendant's threats to her safety, which necessitated that she leave her prior, $48,000.00–a–year job and move to a confidential location. Defendant does not refute any of these contentions.

In support of her application for payment of attorney's fees, Plaintiff has provided a detailed account of attorney's fees and costs, totaling over $40,000.00.⁴ The hourly rate for plaintiff's counsel is consistent with that of an attorney with his level of experience and expertise. The invoices show that over $20,000.00 of the total fees incurred were for work performed in the matrimonial proceeding itself, while another $2,450.00 relates to advice given to Plaintiff with respect to the criminal charges against Defendant in the family offense matter, in which Plaintiff was the complainant.

Additional legal fees incurred by Plaintiff relate to a paternity defense raised by Defendant in a child support action in which Defendant alleged that the child at issue in this matrimonial proceeding was not his. The allegation turned out to be false. The Court finds that the legal services provided to Plaintiff in connection with Defendant's criminal matter and Defendant's paternity contentions in a child support proceeding are inextricably intertwined with services performed by Plaintiff's counsel pertaining to the matrimonial proceeding. Moreover, the fact that such proceedings occurred contemporaneously with this matrimonial proceeding required Plaintiff to obtain additional legal services from her attorney—in those proceedings as well as this one—so that she could proceed properly in this action.

In light of the financial circumstances of the parties, the inter-related nature of Defendant's criminal actions and his claim disputing paternity of the child of the marriage with the issues in this proceeding and the fact the Court finds that Plaintiff already would be entitled to one half of the total funds in escrow that she is seeking to have released to pay the remainder of her total legal fees of over $40,000.00, an award of the requested amount of payment of Plaintiff's attorney's fees-$23,000.00 ⁵—is warranted. Benzaken, 21 AD3d at 392;Prichep,...