Walsh v. Walsh

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SWEENEY; PER CURIAM
• Citation: Walsh v. Walsh, 462 N.Y.S.2d 71, 92 A.D.2d 345 (N.Y. App. Div. 1983)
• Decision Date: 31 March 1983
• Parties: Margaret Ann WALSH, Respondent, v. Charles J. WALSH, Appellant.

Page 71

462 N.Y.S.2d 71

92 A.D.2d 345

Margaret Ann WALSH, Respondent, v. Charles J. WALSH, Appellant.

Supreme Court, Appellate Division Third Department.

March 31, 1983.

Kouray & Kouray, Schenectady (Steven X. Kouray, Schenectady, of counsel), for appellant.

Morris Marshall Cohn, Schenectady, for respondent.

Before SWEENEY, J.P., and KANE, MAIN, MIKOLL and WEISS, JJ.

PER CURIAM.

Plaintiff and defendant were married on January 22, 1966 and three children were born of the union. Subsequently, marital difficulties developed, and the parties separated in March of 1981 with plaintiff and the three children remaining in the former marital residence. Thereafter, plaintiff instituted the present action for divorce on the grounds of cruel and inhuman treatment and abandonment, and simultaneously moved for an order directing defendant to pay support pendente lite and counsel fees. Special Term ultimately awarded plaintiff child support of $90 weekly and also directed defendant to pay the monthly mortgage and insurance obligation on the former marital residence totalling approximately $240. As for counsel fees, defendant was directed to pay plaintiff's attorney the sum of $300 in weekly installments of $10 with the right reserved to plaintiff's attorney to apply for additional counsel fees at the time of trial. On this appeal defendant challenges only the award of counsel fees.

Before addressing the merits of the appeal we take note that for a number of years there has been a lack of unanimity among the four departments as to the necessary prerequisites to the granting of an allowance for legal fees in matrimonial actions. At a time when there was clear conflict between the First and Second Departments over whether or not a husband may be required in a matrimonial action to pay the legal fees of his wife who is herself able to pay (see Ross v. Ross, 47 A.D.2d 866, 366 N.Y.S.2d 34 [2nd Dept.]; Kann v. Kann, 38 A.D.2d 545, 327 N.Y.S.2d 75 [1st Dept.] ), this court adopted the view of the First Department, i.e., that such an award of counsel fees can only be justified when it is necessary to insure that an indigent wife has legal representation (Matter of Frye v. Truhn, 68 A.D.2d 989, 990, 414 N.Y.S.2d 809). Since Kann v. Kann (supra), the First Department has modified its position by affirming 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" (Hyman v. Hyman, 56 A.D.2d 337, 338, 392 N.Y.S.2d 455). Likewise, in Anonymous v. Anonymous, 57 A.D.2d 938, 395 N.Y.S.2d 103, that court held that the fact that a wife has some money of her own is not an automatic bar to an award of counsel fees but is only a factor to be taken into consideration with all others. Similarly, the First Department held that Kann v. Kann, 38 A.D.2d 545, 327 N.Y.S.2d 75, supra was not to be viewed as permitting a husband to drive a wife to the brink of indigency by needless, time wasting legal maneuvering, and then raise her predivorce solvency as a defense to a claim for counsel fees (Stern v. Stern, 67 A.D.2d 253, 415 N.Y.S.2d 225 [1st Dept., 1979], mot. for stay den., cross mot. to dismiss app. den. 47 N.Y.2d 833, 418 N.Y.S.2d 583, 392 N.E.2d 569 [1979] ). The...