Stern v. Stern

CourtNew York Supreme Court Appellate Division
Citation67 A.D.2d 253,415 N.Y.S.2d 225
PartiesLinda STERN, Plaintiff-Respondent, v. Michael STERN, Defendant-Appellant.
Decision Date12 April 1979

Angelo T. Cometa, New York City (Sheila Ginsberg, New York City, with him on brief; Phillips, Nizer, Benjamin, Krim & Ballon, New York City), for plaintiff-respondent.

Harry Shapiro, New York City, of counsel (Smith & Panish, New York City), for defendant-appellant.


SULLIVAN, Justice.

The only issue in this proceeding in which the wife has obtained a judgment of divorce is the allowance to her counsel of a fee in the sum of $30,000 and disbursements of $7,500. We find the award of have been proper and, accordingly, would affirm.

As the dissent notes, there is no disagreement among us that the valuation placed on counsel's services and disbursements by Special Term was fair and reasonable. But, unlike the dissent, we find the husband's conduct to be so clearly obstructionistic as to warrant affirmance of the order, without remanding for an evidentiary hearing. The husband's obstinacy throughout the pendency of this proceeding compelled his wife to deplete by at least 60% A stock portfolio of over $100,000. It would be unjust to have her, in effect, extinguish that portfolio to pay counsel fees incurred in reaching a settlement which might just as easily have been attained much earlier, but for, what appears to be, in retrospect, a lack of good faith by the husband.

The husband is financially quite secure while the wife has no outside employment and takes care of the couple's two children, ages eight and ten. He initially offered his wife $200 weekly for three years, equal division of the marital property, and reimbursement of necessaries for the children only. During the course of the trial a settlement was reached at markedly higher terms, including $15,000 alimony and $25,000 child support, $35,000 for necessaries, title to the marital home, and net proceeds of any sale of the home up to $100,000. Special Term noted that the husband caused the wife's counsel fees to escalate on several occasions when he refused to make full financial disclosure, thus compelling her to make a motion to take the husband's examination before trial; when he applied for a change of venue which was denied, and appealed the order to the Appellate Division, which affirmed Special Term's order; when he sought and was denied a protective order; when he sought another protective order in Westchester County Family Court, which application he withdrew after the wife moved to dismiss; when he twice changed attorneys (the second change to engage his original attorneys); when he refused to accept voluntarily an amended complaint, after initially indicating that he would, and the wife had to move for permission to amend her complaint; when she had to move for injunctive relief after the husband removed property from the marital home; and when she had to move to punish him for contempt after, in defiance of the injunction, he broke into the home a second time.

The husband sought a stay of trial and an extension of time to answer the amended complaint but the court summarily denied that motion from the bench. He also made a jury demand which resulted in time spent at least an entire day on jury selection, and then waived the jury; and withdrew his answer and counterclaim during trial, after hearing the testimony of four witnesses in support of the wife's claim of cruel and inhuman treatment, only to seek to reinstate both the next day.

It seems clear that if the husband had been as interested in proceeding to trial as he was in forestalling it, the wife would not have had to reach as deeply into her portfolio as she did to pay living expenses for herself and her children, and her bill for counsel fees would certainly not be as substantial as it is today.

In awarding counsel fees, Special Term relied, in part, on Domestic Relations Law § 237(a) which permits the court, in a divorce proceeding, to direct the husband "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." In Salk v. Salk, 57 A.D.2d 519, 393 N.Y.S.2d 566, this Court, although reversing an award of counsel fees, noted that "(i)n awarding a counsel fee the merits of the action are among the factors to be considered" (citing Wood v. Wood, 21 A.D.2d 627, 630, 253 N.Y.S.2d 195, 199.) Although this Court stated in Kann v. Kann, 38 A.D.2d 545, 327 N.Y.S.2d 75, that if a wife is "able to pay for her own counsel, no award may be made" that decision should not be viewed as permitting a husband to drive a wife to the brink of indigency by needless, time-wasting legal maneuvering, and then raising her pre-divorce solvency as a defense to a claim for counsel fees.

In Kann, the Court dealt with a total initial award for counsel fees of $3,500, a fee considerably smaller than the one at issue in this case. In a subsequent decision, Hyman v. Hyman, 56 A.D.2d 337, 392 N.Y.S.2d 455, this Court affirmed an award of counsel fees to a working wife because "(i)t is apparent . . . that respondent on her income is unable to pay a counsel fee without severely reducing her life savings." (Id. at 338, 392 N.Y.S.2d at 456.) Special Term found that at the time of trial, the wife's stock portfolio had been reduced to approximately $35,000. The award of counsel fees and disbursements was $37,500. While the wife was also awarded $35,000 as compensation for monies expended on necessaries and it may be that she has access to other limited resources, the effect of denying her counsel fees would be a substantial erosion of any financial wherewithal which she might otherwise have. In addition, it should be noted that the wife has already paid a...

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24 cases
  • Zirinsky v. Zirinsky
    • United States
    • New York Supreme Court Appellate Division
    • 9 Junio 1988
    ...or her of the responsibility for the payment of such expenses, irrespective of the other spouse's means. ( See, e.g., Stern v. Stern, 67 A.D.2d 253, 415 N.Y.S.2d 225; see, also, Schussler v. Schussler, 109 A.D.2d 875, 487 N.Y.S.2d 67.) In any event, the consideratio justifying an award of f......
  • Davis v. Davis
    • United States
    • New York Supreme Court Appellate Division
    • 26 Marzo 1987
    ...primarily responsible, including three repetitive motions related to temporary maintenance and support. See, Stern v. Stern, 67 A.D.2d 253, 256, 415 N.Y.S.2d 225 (1st Dept., 1979). The trial court properly determined that as the wife had minimal liquid assets with which to pay the husband t......
  • Bazant v. Bazant
    • United States
    • New York Supreme Court Appellate Division
    • 15 Mayo 1981
    ...the spouse's ability to pay his or her own counsel fees not as a bar to the award, but simply a factor to be considered (Stern v. Stern, 67 A.D.2d 253, 415 N.Y.S.2d 225 mot. for stay den. cross mot. dism. app. den., 47 N.Y.2d 833, 418 N.Y.S.2d 583 Kaplan v. Kaplan, 77 A.D.2d 891, 892, 430 N......
  • Nehorayoff v. Nehorayoff
    • United States
    • United States State Supreme Court (New York)
    • 23 Marzo 1981
    ...assets herein awarded to compensate her attorney, the equity of the distribution would be called into question. (See, Stern v. Stern, 67 A.D.2d 253, 415 N.Y.S.2d 225). A hearing will be necessary to determine the reasonable value of the services provided by Plaintiff's counsel. (Edelstein v......
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