Yakobowicz v. Yakobowicz
| Docket Number | 2020-05071,Index No. 200420/06 |
| Decision Date | 07 June 2023 |
| Citation | 2023 NY Slip Op 03044 |
| Parties | Samuel Yakobowicz, respondent, v. Rina Yakobowicz, appellant. |
| Court | New York Supreme Court — Appellate Division |
Manners & Malone, PLLC, Westbury, NY (Randall K. Malone of counsel), for appellant.
Jules A. Epstein, P.C., Jericho, NY, for respondent.
MARK C. DILLON, J.P. BETSY BARROS LARA J. GENOVESI JANICE A TAYLOR, JJ.
DECISION & ORDER
In a matrimonial action in which the parties were divorced by a judgment entered April 30, 2014, the defendant appeals from an order of the Supreme Court, Nassau County (Steven M Jaeger, J.), dated February 20, 2020. The order, insofar as appealed from, granted that branch of the defendant's motion which was for an award of attorneys' fees only to the extent of awarding her the sum of $50,000, and denied those branches of her motion which were for an award of prejudgment interest on certain unpaid sums allegedly owed by the plaintiff and for reimbursement of various expenses purportedly incurred by the defendant in Israel.
ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting that branch of the defendant's motion which was for an award of attorneys' fees to the extent of awarding her the sum of $50,000, and substituting therefor a provision granting that branch of the motion to the extent of awarding her the sum of $71,243.79; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff and the defendant were married in 1984. In 2006 the plaintiff commenced an action for a divorce and ancillary relief. One of the issues in dispute between the parties related to a condominium apartment located in Israel (hereinafter the apartment), which was owned by a trust controlled by the plaintiff. In January 2014, the parties appeared before the Supreme Court and placed a stipulation of settlement on the record in open court (hereinafter the stipulation). Among other provisions, the stipulation required the plaintiff to direct the trustee to transfer title to the apartment to the defendant as part of her distributive award. In April 2014, a judgment of divorce was entered, which incorporated, but did not merge, the stipulation.
In or around December 2014, the plaintiff commenced a plenary action to reform the stipulation to include a provision allowing him to pay the defendant the appraised value of the apartment in lieu of directing the trustee to transfer the title to her. The plaintiff alleged that he had agreed to the stipulation in the mistaken belief that it included such a provision. In an order dated October 26, 2015, the Supreme Court awarded summary judgment to the defendant dismissing the complaint in that action. The plaintiff appealed, and this Court affirmed the order in a decision and order dated September 14, 2016 (see Yakobowicz v Yakobowicz, 142 A.D.3d 996).
While that prior appeal was pending, the defendant moved, inter alia, to hold the plaintiff in contempt based upon, among other things, his failure to transfer title to the apartment to her. She also sought an award of interim attorneys' fees in the sum of $50,000 relating to the proceedings to enforce the judgment. By order dated May 13, 2016, the Supreme Court determined that a hearing was necessary before deciding that branch of the defendant's motion which was to hold the plaintiff in contempt, and denied that branch of the defendant's motion which was for an award of interim attorneys' fees without prejudice to renew upon proper papers.
Thereafter, the defendant renewed that branch of her prior motion which was for an award of interim attorneys' fees. By order dated November 2, 2016, the Supreme Court, among other things, granted the defendant's renewed motion to the extent of awarding the defendant interim attorneys' fees in the sum of $25,000. The court reasoned that such an award was appropriate "[i]n light of the disparate economic circumstances of the parties,... the work done by [the defendant's] counsel, and the work necessary to be performed to bring this matter to a conclusion," while noting that it was "without prejudice to further application for additional sums at the time of trial."
In or around August 2017, before the hearing was conducted on that branch of the defendant's prior motion which was to hold the plaintiff in contempt, the defendant moved, inter alia, to hold the plaintiff in contempt for failing to pay the $25,000 interim attorneys' fees award. By order dated December 21, 2017, the Supreme Court, among other things, referred that branch of the motion for a determination at the hearing on the branch of the defendant's prior motion which was to hold the plaintiff in contempt.
In August 2018, the contempt hearing commenced with one day of testimony. Before the hearing was deemed complete, this Court, in a decision and order dated April 10, 2019, affirmed the order dated November 2, 2016, granting that branch of the defendant's renewed motion to the extent of awarding her $25,000 in interim attorneys' fees (see Yakobowicz v Yakobowicz, 171 A.D.3d 993). The contempt hearing thereafter concluded with a second day of testimony in May 2019. By order dated June 6, 2019, the Supreme Court, inter alia, granted those branches of the defendant's motions which were to hold the plaintiff in contempt for failing to direct the trustee to transfer title to the apartment to the defendant and for failing to pay the interim attorneys' fees award, while permitting him to purge the contempts by providing proof that he complied with his obligations in advance of a sentencing hearing. On August 2, 2019, the parties appeared for the sentencing hearing, at which time the plaintiff's counsel confirmed that his client had taken the necessary steps to purge the contempts.
In October 2019, the defendant moved, inter alia, for an award of more than $200,000 in attorneys' fees relating to her attempts to enforce the judgment of divorce, to direct the plaintiff to pay her "statutory interest" on all monies owed since January 7, 2014-the date the parties placed the stipulation on the record-and to reimburse her for certain amounts she had paid to her Israeli counsel and to the trustee. The defendant noted in her moving papers that the parties had stipulated that her attorneys' fee application could be decided without a hearing. The plaintiff opposed the motion, confirming that he had agreed that the motion could be decided on the papers. By order dated February 20, 2020, the Supreme Court granted that branch of the defendant's motion which was for an award of attorneys' fees only to the extent of awarding her the sum of $50,000, and otherwise denied the motion. The defendant appeals.
"Domestic Relations Law § 238 authorizes a court, in its discretion, to award counsel fees in a proceeding to enforce the provisions of a divorce judgment" (Tuchman v Tuchman, 201 A.D.3d 993, 993; see also Domestic Relations Law § 237[b], [c]). (Maddaloni v Maddaloni, 163 A.D.3d 794, 796). "There is [a] rebuttable presumption that counsel fees shall be awarded to the less monied spouse" (Tuchman v Tuchman, 201 A.D.3d at 993 [internal quotation marks omitted]). "In exercising its discretion [to award fees], the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has...
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