Vanderpool v. Vanderpool

• Decision Date: 01 June 1973
• Parties: Norbert VANDERPOOL v. Beulah VANDERPOOL.
• Court: New York Supreme Court

Page 572

344 N.Y.S.2d 572

74 Misc.2d 122

Norbert VANDERPOOL v. Beulah VANDERPOOL.

Supreme Court, Special Term, Kings County, Part V.

June 1, 1973.

Beulah Vanderpool, pro se.

Norman Redlich, Corp. Counsel, New York City, for City of New York.

Harain D. Figueroa, New York City, for plaintiff.

Louis J. Lefkowitz, Atty. Gen., New York City, for State of New York.

John C. Gray, Jr., Brooklyn, for Brooklyn Legal Services Corp. B.

MEMORANDUM

LOUIS B. HELLER, Justice.

Defendant-wife, proceeding as a poor person, moves in this divorce action for the court to assign counsel to represent her. Plaintiff-husband is represented by counsel serving on a reduced fee basis.

In an earlier application, Brooklyn Legal Services Corp. B was appointed to represent defendant despite its objection that it had neither funds nor manpower to undertake the defense--its caseload far exceeding its capacity. On appeal by that corporation, the appointment was vacated as an improvident use of discretion (Vanderpool v. Vanderpool, 40 A.D.2d 1030, 339 N.Y.S.2d 657(2)). Legal Aid Society has also refused to serve claiming it too is overburdened--leaving no other public-funded agency available.

Defendant has four infant children of the marriage, receives supplemental public assistance and is without funds to pay counsel fee. Plaintiff earns $95 to $100 weekly, contributes nothing to the support of his wife or children, and is also without funds to pay his wife's counsel fee.

No valid purpose would be served by assigning private counsel to represent her in the hope that payment of counsel fee could be compelled under Domestic Relations Law Section 237. Neither may the burden of representing the wife be imposed on private counsel without his consent, nor is it reasonable to ask him to serve without prospect of compensation. Under the circumstances the question is whether counsel fee is properly payable out of public funds.

While under the poor-persons statute (CPLR 1102) counsel may be assigned (subd. a), fees to public officers waived (subd. d), costs to a successful adversary forgiven (subd. d), and transcript costs paid out of public funds (subd. b), I find no statutory authority to direct payment of such auxiliary expenses as witness, legal, investigation, etc. fees, in civil litigation out of public funds (Jeffreys v. Jeffreys, 58 Misc.2d 145, 296 N.Y.S.2d 74, rev. on other grounds 38 A.D.2d 431, 330 N.Y.S.2d 550)--nor is there inherent power in the court to order payment.

I recognize the need to appoint counsel for poor persons (CPLR 1102(a)), for indigent matrimonial plaintiffs (Emerson v. Emerson, 33 A.D.2d 1022, 308 N.Y.S.2d 69), for indigent matrimonial defendants (Brounsky v. Brounsky, 33 A.D.2d 1028, 308 N.Y.S.2d 72); and that failure to do so when required is an improvident exercise of discretion (Brounsky v. Brounsky, Supra), but that does not invest me with authority, statutory or inherent, to direct payment of counsel fees out of public funds. Absent statutory authority, I may not so direct.

There is one overriding exception: if constitutionally mandated, I may not refuse to act. For when the constitution commands, it must be obeyed.

Jeffreys (supra) considered the request of an indigent wife suing for divorce to have the publication cost of effecting service of process on her husband paid out of public funds. Referring to that costs as 'a money hurdle to such dissolution' the court said (58 Misc.2d p. 1056, 296 N.Y.S.2d p. 87):

'This hurdle is an effective barrier to * * * access to the courts. The loss of access to the courts in an action for divorce is a right of substantial magnitude when only through the courts may redress or relief be obtained. * * * It is manifestly discriminatory * * * to deprive Mrs. Jeffreys of that right while affording it to others with money.'

Since New York has an effective monopoly on divorce, to require an indigent to pay publication costs effectively denies her access to the court. The court concluded that the wife had been denied equal protection of the laws guaranteed to her by the State and Federal constitutions, justifying a direction to the City of New York to pay the cost.

Recently (1973) the Court of Appeals, relying on Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, sustained this view by directing the county of Albany to pay an indigent matrimonial plaintiff's publication cost (Deason v. Deason, 32 N.Y.2d 93, 343 N.Y.S.2d 321, 296 N.E.2d 229, affg. 39 A.D.2d 331, 334 N.Y.S.2d 236). Boddie, supra, holds that the Due Process Clause of the Fourteenth Amendment prohibits a state from denying indigent divorce plaintiffs access to our courts because of inability to pay filing fees and sheriff's fees for service of process. The effect of indigency was held to be the same in both cases--inability to pay filing and sheriff fees in Boddie and publication costs in Deason--wrongful denial of access to the court.

Although I find no case that says that indigent matrimonial defendants have a right to counsel, that issue is now before the court. Does the Boddie rule extend the right to counsel to indigent matrimonial defendants? Is denial of the right to counsel to those defendants because of inability to pay the fee denial of access to the court? Are counsel fees such auxiliary costs as bar indigent matrimonial litigants from access to the court?

It is urged that indigent matrimonial defendants cannot claim that they are denied access to the court, having been brought in by the plaintiff. That view is too shallow. Access must be viewed in the context of due process. In criminal matters defendants do not have access, insuring due process, unless represented by counsel (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799). So, too, in civil matters, access that denies due process does not meet constitutional standards.

Indigent matrimonial defendants denied equal protection of the law do not have access to the court simply because they are brought in by plaintiff. Access that denies equal protection is not the access contemplated by due process. Presence is distinguishable from access--the two are not equatable. Presence without equal protection of the law remains only presence; it does not ripen into access.

Due process reflects a fundamental value in our constitutional system. Central to its operation is the concept of due process. Without the guarantee that no one may be deprived of life, liberty or property without due process of law, the system could not be acceptable. We are seldom asked to view access to the courts as an element of due process. Plaintiffs' invocation of the system often creates problems of defendant's rights. The judicial proceeding becomes the only effective means of resolving the dispute, and denial of defendants' access to the process impairs its legitimacy (Boddie v. Conn., Supra).

Unless litigants are given a meaningful opportunity to be heard, there is no due process....