Roscini v. Roscini

• Decision Date: 05 July 1974
• Citation: 357 N.Y.S.2d 227,45 A.D.2d 254
• Parties: Muriel M. ROSCINI, Appellant-Respondent, v. Lawrence ROSCINI, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 227

357 N.Y.S.2d 227

45 A.D.2d 254

Muriel M. ROSCINI, Appellant-Respondent, v. Lawrence ROSCINI, Respondent-Appellant.

Supreme Court, Appellate Division, Fourth Department.

July 5, 1974.

Lowery & Mancuso, Syracuse, for appellant-respondent (Lewis B. Helfstein, Syracuse, of counsel)

Alderman, Alderman, Samuels & Schepp, Syracuse, for respondent-appellant (Bernard Samuels, Syracuse, of counsel).

Before MARSH, P.J., and WITMER MAHONEY, GOLDMAN and DEL VECCHIO, JJ.

OPINION

PER CURIAM:

This is an appeal from an order which, Inter alia, denied appellant wife's application for counsel fees. The legal issue before us requires us to determine whether the specific mandates of section 237 of the Domestic Relations Law preclude a post-separation award of counsel fees representing necessary legal expenses incurred by a wife in securing compliance with the terms of, and in defending an appeal from, a judgment of separation.

In December, 1971 the plaintiff wife commenced an action for legal separation against her husband. The final judgment of separation provided an award of counsel fees in the sum of $2,850. That judgment was affirmed on appeal as modified by certain deletions and directions not here relevant (Roscini v. Roscini, 41 A.D.2d 895, 342 N.Y.S.2d 681).

Thereafter, the husband moved to enforce and interpret certain decretal paragraphs of the judgment. His wife cross-moved for various forms of relief and, significant to our considerations here, requested payment of an additional $7,500 as counsel fees for services performed since entry of the judgment, including the defense of the husband's appeal and prosecution of a cross appeal in this court. In denying this application for fees, the court below questioned the legality of making such an award after entry of the final judgment in a separation action and denied appellant's application 'without prejudice to a renewed application in the divorce proceeding or to a renewal of the application or a plenary suit for such fees in the event no divorce action is instituted'.

The authority to direct a husband to 'pay such sum or sums of money to enable the wife to carry on or defend' a matrimonial action or proceeding is contained in section 237, subdivision (a), of the Domestic Relations Law. Explicit in the language of this section is the instruction that '(s)uch direction must be made in the final judgment in such action or proceeding, or by one or more orders from time to time before final judgment, or by both such order or orders and the final judgment'. Post-judgment applications for fees previously unrequested must, therefore, be denied although legal services had been earlier rendered (see, Hockenbrought v. Hockenbrought, 44 A.D.2d 767, 354 N.Y.S.2d 257, decided April 11, 1974). However, the statute fails to contemplate legal costs intrinsic to but arising only after a final judgment in a matrimonial action: namely, expenses representing services necessary to prosecute or defend and appeal of a judgment of separation or divorce or to enforce compliance with the terms of such judgment.

Under prior law the courts were empowered to award counsel fees 'during the pendency' of the matrimonial litigation (Civ.Prac. Act, § 1169). This phrase was broadly construed to include all situations in which jurisdiction over the parties was retained, thus permitting fee awards for appellate endeavors (see e.g., Fox v. Fox, 263 N.Y. 68, 188 N.E. 160). With the transfer of the Civil Practice Act provisions relating to matrimonial actions to the Domestic Relations Law, this terminology was omitted in favor of more exacting temporal requirements, with the resultant effect that the current statute lacks specific provision for allowance of post-judgment legal expenses. To construe the section as meaning that the Legislature intended to deny a wife the financial means to secure legal representation under the circumstances here 'would be completely illogical and contrary to the legislative intent expressed in the statute * * * that while a wife may be granted an allowance of counsel fees to prosecute or defend an action when she satisfies the court that she is entitled thereto, she may not similarly be put in a position to prosecute or defend an appeal from a final judgment rendered in the action (or an order made thereafter), notwithstanding that she shows merit * * *' (Rothenberg, Matrimonial Allowances in New York, § 36, p. 189). We therefore hold that where, as here, a wife in an action for legal separation has, upon timely application, been awarded counsel fees pursuant to the terms of section 237, subdivision (a), of the Domestic Relations Law, additional funds to enable the wife to...