Special Considerations in Matrimonial Appeals

Although the new statute clearly shifts the burden of proof to the monied spouse, do not be lulled into a false sense of security if you represent the non-monied spouse. When contemplating an appeal of a pendente lite counsel fee award, consider that:

 

• Some Supreme Court judges are ignoring the revision to DRL §237 in the belief that liberal awards of counsel fees prolong litigation. These judges are using their discretion to significantly reduce counsel fee awards…which either requires wasteful, expensive, frequent motions for counsel fees, or has returned us to the pre-2010, pre-Prichep era of working for free when we represent the non-monied spouse. See, e.g., Valentin v. Valentin, 2011 WL 3169633 (Supreme Ct., Queens County 2011) ($7,500 requested; $3,000 awarded).

 

 

• Time will tell if the Appellate Division will strictly enforce DRL § 237, but the early signs are good in the Second Department; see Palmeri v. Palmeri, 87 A.D.3d 572, 929 N.Y.S.2d 153 (2d Dep’t 2011), which, relying on Prichep, upheld a combined interim counsel fee award of $140,000 in a case commenced prior to October 12, 2010.

 

 

• In Witter v. Daire, 81 A.D.3d 719, 917 N.Y.S.2d 870 (2d Dep’t 2011), another case commenced before October 12, 2010 but decided after it, the Second Department reversed an interim counsel fee award of only $10,000 when he had requested $100,000. A request for an additional $25,000 was also granted. The Court stated:

 

Although the Supreme Court, in limiting its award of interim counsel fees to the husband, deemed the litigation of such other matters to be unnecessary or premature, we note that such considerations, while potentially relevant in determining the propriety and amount of a final award of counsel fees, did not warrant the denial of the requested amounts of interim counsel fees in this case.

 

• Application of the new temporary maintenance guidelines (effective in all actions commenced on or after October 12, 2010), pursuant to which the monied spouse must pay pendente lite maintenance to the non-monied spouse pursuant to an onerous formula, has resulted in a so-called "shift" in the parties’ finances – the former monied spouse now has less income than the former non-monied spouse. A few recent cases at the trial level have held that this "shift" rebuts the presumption; as a result, counsel fee awards have been denied or greatly reduced. Margaret A. v. Shawn B., 31 Misc.3d 769, 921 N.Y.S.2d 476 (Supreme Court, Westchester County 2011); J.H. v. W.H., 31 Misc.3d 1203(A), 2001 WL 1158653 (Supreme Court, Kings County 2011).

 

 

• However, other cases have held that pendente lite support is statutorily designated to be used as support, not for counsel fees. Matter of S.B.S. v. S.S., NYLJ, May 2, 2011 (Family Court, Nassau County, April 14, 2011).

 

1.  

    

   1. Applications for counsel fees to defend or prosecute an appeal.

    

    

   While DRL §237 does not specifically state that it applies to appeals, the phrase, "to carry on or defend the action or proceeding" is sufficiently broad to support an award of appellate counsel fees – "defending the action or proceeding" includes any appeal of that action or proceeding.

    

   An award of prospective appellate counsel fees requires a showing as to the estimated value and extent of the contemplated legal services to be performed, although "an exact breakdown" is not required. Block v. Block, 296 A.D.2d 343, 746 N.Y.S.2d 15 (1^st Dep’t 2002).

    

    

   2. Motion is made to the Court of Original Jurisdiction, not to the Appellate Division.

    

    

   DRL §237 offers no procedure for requesting an award of counsel fees, but it is accepted practice that such requests are made by motion on notice. In a matrimonial action, such a motion is made to the Supreme Court, not the Appellate Division. Aborn v. Aborn, 196 A.D.2d 561, 601 N.Y.S.2d 339 (2d Dep’t 1993).

    

    

    

    

    

   3. Available whether you represent Appellant or Respondent.

    

    

   An appellant seeking an award of counsel fees must show that the appeal is being taken in good faith and that there is a reasonable probability of success on appeal. Koff v. Koff, 286 A.D. 1110, 146 N.Y.S.2d 461 (2d Dep’t 1955); Greenberg v. Greenberg, 134 A.D. 419, 119 N.Y.S.2d 227 (1^st Dep’t 1909); Habiby v. Habiby, 24 A.D.2d 435, 260 N.Y.S.2d 664 (1^st Dep’t 1965; Prytherch v. Prytherch, 22 A.D.2d 706, 253 N.Y.S.2d 1964).

    

    

    

   4. Application can be made before appeal is perfected or after appeal is decided.

    

    

   DRL § 237 provides that "applications for the award of fees and expenses may be made at any time or times prior to final judgment." The motion for counsel fees on appeal can be made at any time during the appellate process, or, if circumstances warrant, even after it:

    

    

    

   1. Before Appeal Perfected:, 209 A.D.2d 1022, 619 N.Y.S.2d 908 (4^th Dep’t 1994); Delgado v. Delgado, 160 A.D.2d 385, 553 N.Y.S.2d 750 (1^st Dep’t 1990).

    

    

    

   2. During Pendency:

    

    

    

   3. After Appeal Decided:

    

    

    

   4. But -- use common sense!

    

   In Holloway v. Holloway, 307 A.D.2d 405, 762 N.Y.S.2d 681 (3d Dep’t 2003), the former wife’s counsel fee application was made nearly two years after the former husband’s appeal was determined. The former husband argued that because the underlying action was no longer pending after the Appellate Division determined his appeal, the Supreme Court lacked jurisdiction to award appellate counsel fees to the former wife. On the appeal of the Supreme Court’s award of appellate counsel fees, the Third Department found that, "although there was an unusual delay in the application for appellate counsel fees, which could have justified its denial, we cannot say, under the particular circumstances herein, that Supreme Court abused its discretion by granting it." Matter of Salvati v. Salvati, 242 A.D.2d 538, 662 N.Y.S.2d 130 (2d Dep’t 1997); appeal dismissed, 87 N.Y. 2d 954 (1996), lv. denied, 88 N.Y.2d 803 (1996) (an appeal of a Family Court custody proceeding in which the Family Court interpreted DRL §237). In Talty v. Talty, 87 A.D.3d 698, 928 N.Y.S.2d 749 (2d Dep’t 2011), the Second Department held that requests for counsel fees made pursuant to Family Court Act §438(a) are timely if made before the conclusion of the appellate process – meaning that "no more appellate relief is available, or when the time to file an appeal has expired." The Court went on to state that "to the extent that any of our decisions suggest otherwise…they are no longer to be followed." Talty v. Talty, 87 A.D.3d 698 at 698.

    

   5. Requirements not as strict as CPLR 1101(a) (poor person relief):

    

    

   1. Do not need to prove indigence (used to obtain a free transcript).

    

   2. Available prospectively – while costs pursuant to CPLR 8107 are available only to the winner. CPLR 8203(a) limits costs amount to $250 in the Appellate Division; CPLR 8204 limits costs to $500 in the Court of Appeals.

    

    

   6. The Provisions of 22 NYCRR § 202.16 (k) Must Be Followed

    

    

    

   7. A sworn Statement of Net Worth (form available on the OCA website) must accompany the motion for counsel fees.

    

    

    

   8. A copy of your retainer agreement must be attached to the Statement of Net Worth.

    

    

    

   9. An attorney’s affirmation stating the funds, if any, received from the client or from a third person on the client’s behalf, and the details of any fee arrangement with the client and/or a third party, must accompany the motion.

    

    

    

   10. Although 22 NYCRR § 202.16 (k) does not expressly require them, it is accepted practice to include in the affirmation counsel’s curriculum vitae and a statement of the work that has been done, and is expected to be done, in the case.

    

    

    

   11. Note that the party opposing the motion is deemed to have admitted any facts not controverted in the opposing party’s papers or Statement of Net Worth.

    

    

    

   12. A sample affirmation in support of a motion for appellate counsel fees is attached.

    

   Caldwell v. Caldwell

1.  

    

   1. 22 NYCRR §670.20(c) –

    

    

    

   2. You can make application at the calendar call if you give at least seven days notice, but the Court may deny it, pursuant to §670.20(d) … and they probably will.

    

   "Argument is not permitted on issues involving maintenance; spousal support; child support; counsel fees…"

1.  

    

   1. Pendente Lite

    

   Support

    

   1. In a matrimonial action, disagreements between the parties about the amount of temporary child support or spousal maintenance often result in pendente lite motion practice. If the pendente lite award overly favors one of the parties, counsel needs to consider appealing the pendente lite order. If you do not, it can make a global settlement of the issues extremely difficult, if not impossible.

    

   2. Weigh your decision as to whether or not to appeal very carefully. Consider: that modifications of pendente lite orders are rarely made by the Appellate Division. More often than not such appeals are denied on the basis that the proper remedy for a perceived equity in a pendente lite award is a speedy trial. Avello v. Avello, 72 A.D.3d 850, 899 N.Y.S.2d 337 (2d Dep’t. 2010), Coven v. Coven, 82 A.D.3d 1144 (2d Dep’t. 2011), quoting Malek v. Malek, 66 A.D.3d 968, 886 N.Y.S.2d 826 (2d Dep’t. 2009).

    

   3. However, if the pendente lite support order renders a party unable to meet his or her financial obligations, or if justice requires, the Appellate courts will modify the pendente lite order. Typically, modification is made when the trial court failed to adequately consider the payor spouse’s reasonable needs, or an award that directs the payment of support to the spouse in addition to payment of the carrying charges on the marital home (the so-called "double shelter allowance"). Charnock v. Charnock, 197 A.D.2d 759, 602 N.Y.S.2d 729 (3d Dep’t. 1993), Silver v. Silver, 46 A.D.3d 667, 847 N.Y.S.2d 596 (2d Dep’t. 2007), Byer v. Byer, 199 A.D.2d 298, 604 N.Y.S.2d 254 (2d Dep’t. 1993), Fruchter v. Fruchter, 29 A.D.3d 942, 816 N.Y.S.2d 525 (2d Dep’t. 2006), Novick v. Novick, 251 A.D.2d 385, 674 N.Y.S.2d 87 (2d Dep’t. 1998).

    

   4. There has been inconsistency among the four departments concerning the "double shelter allowance." Historically, the Third and Fourth Departments have remitted to the trial court, whereas our own Second Department has simply modified the monthly payment. As was the case with pendente lite maintenance awards at the trial level, there was no uniform approach.

    

   5. With the advent of the 2010 revisions to the Domestic Relations Law, specifically the new temporary maintenance guidelines, one would think that the number of appeals of pendente lite support orders would decrease dramatically because there is uniformity in the determination of temporary maintenance. Unfortunately, the new law can lead to inequitable results because it is not based on the financial need of the respective spouses. Rather, it is a pure income redistribution system. The trial courts are beginning to realize this and have exercised their discretion to try to better balance the results. At this writing, there are no appellate decisions on the appropriateness of a maintenance award calculated according to the temporary maintenance guidelines.

    

    

   2. Pendente Lite

    

   Custody

    

    

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      1. It is nearly automatic that the losing party in a matrimonial action – either on a motion or after trial -- seeks a stay of the adverse determination in the Appellate Division.

       

      Why?
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      1. The usual appellate court mantra that the remedy for a perceived inequity in a support award is a speedy trial is largely a fiction – it could be months, or even years, between the issuance of a pendente lite support award and a trial date, or between a support award after trial and an Appellate Division decision.

       

       

       

      2. Also keep in mind that the general rule is that, absent certain limited exceptions, overpayments of alimony and child support are not recoverable for reasons of public policy even if the award is ultimately reversed on appeal. "The reason for this policy is that maintenance and child support payments are "deemed to have been devoted to that purpose, and no funds exist from which one may recoup moneys so expended" if the award is thereafter reversed or modified," Rader v. Rader, 54 A.D.3d 919, 865 N.Y.S.2d 235 (2d Dep’t 2008), citing Coleman v Coleman, 61 A.D.2d 757, 402 N.Y.S.2d 6 (1^st Dep’t 1978).

       

       

       

      3. In cases involving a perceived error in an equitable distribution award, stay applications are critical because the funds or property distributed may be spent, encumbered or wasted before the Appellate Division has the opportunity to consider and reverse the award.

       

       

       

      4. Custody cases are particularly appropriate for a stay application, since the best interests of children are necessarily and vitally impacted. Since one of the criteria in custody determinations is the length of time the children have resided with a parent, the slowness of the appellate process can work against your non-custodial parent client. If a child is removed from New York, the appellate process may be too slow, or even moot; at the very least, litigation to recover the child will be lengthy and expensive. Given the need for speed in appeals of custody determinations, a preference should be requested in the stay application in order to minimize delay.

       

   1.  

       

      1. CPLR §5519(a) – Automatic Stays

       

    
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   3. Under CPLR §5519 (a) (2), service of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from where the judgment or order "directs the payment of a sum of money" and the appellant gives an undertaking in that sum. Although maintenance and child support payments are "sums of money," automatic stays by filing of an undertaking are not permitted pursuant to case law. The reason is simple…the recipient may be reduced to poverty if the support is not paid while the appeal is pending.

    

    

    

   4. IMPORTANT ALERT!

    

    

    

   5. Not as clear is the use of automatic stay in an award of counsel fees. The payor spouse in a contentious case is likely to employ any method to avoid paying his spouse’s counsel fees, and CPLR §5519 (a) (2) allows him to do so legally. A stay is manifestly unfair to counsel for the recipient spouse, since counsel will have to work for free while the appeal is determined. This situation is precisely what the amendments to DRL §237 are designed to prevent. A motion can be made to vacate the stay, but that costs money, and is thus equally unsatisfactory.

    

    

   As of this writing, there are no reported cases on the applicability of CPLR §5519 (a) (2) to awards of counsel fees. Perhaps an amendment to pending Bill A5032 is necessary!

    

    

   6. Under CPLR §5519 (a) (3), service of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from where the judgment or order "directs the payment of a sum of money, to be paid in fixed installments," and an undertaking is paid in an amount to be determined by the court. This provision is important to consider in equitable distribution cases, since large equitable awards are usually payable in fixed installments over time, e.g., a payout on the value of a license or professional practice.

    

    

   The amount of the undertaking is set after a motion on notice in the court of original instance. The movant should always suggest a realistic amount for the undertaking in the motion papers, with appropriate support for the request. Courts that wish to effectively deny the motion can do so by fixing the undertaking in the same amount as the total equitable award – many appellants will not be able to post such a large undertaking.

    

    

   7. Under CPLR §5519 (a) (4), service of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from where the judgment or order "directs the assignment of delivery of personal property," and the property is placed in the custody of the court’s designee, or if an undertaking is given in a sum fixed by the court. "Personal property" in a matrimonial action can include bank accounts, brokerage accounts, antiques, furs, art, jewelry, cars, boats…the list is endless, and potentially valuable!

    

    

    

   8. Under CPLR §5519 (a) (5), service of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from where the judgment or order "directs the execution of any instrument, and the instrument is executed and deposited in the office where the original judgment or order is entered …" In a matrimonial case, a spouse directed to transfer real property may avail herself of this provision pending appeal, since the transfer is done by executing a deed.

    

   On February 11, 2011, a bill was introduced in the NYS Assembly (A5032) that would amend CPLR §5519(a) to remove from the list of orders and judgments subject to an automatic stay those orders or judgments "issued in a matrimonial action that includes provisions for maintenance or child support." As of this writing, the bill is in the Codes Committee.
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      1. Motions for a Stay – CPLR § 5519(c)

       

    
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   3. The motion can be made either in the court of original jurisdiction or in the Appellate Division. In my experience, it is more efficient to bring the motion for a stay directly in the Appellate Division. In custody cases, one should always try to get a temporary stay from the court of original instance before moving in the Appellate Division.

    

    

    

   4. Under CPLR §5519 (e), if the judgment or order appealed from is affirmed or modified, the stay shall continue for five days after service upon the appellant of the order of affirmance or modification with notice of its entry in the court to which the appeal was taken." If an appeal is taken, or a motion is made for permission to appeal, before the expiration of the five days, the stay continues until five days after the appeal is determined. Where a motion is made within the five days for permission to appeal, and permission is granted, the stay continues until five days after the appeal is determined. If permission is denied, the stay continues until five days after the order of denial is served with notice of entry.

    

    

    

   5. Presenting the motion for a stay requires a rock-solid knowledge of the facts and an appeal to the judge’s emotions and instincts.

 

1. In a matrimonial case, pendente lite motions are often made that seek temporary custody of the parties’ minor children. A request for exclusive use and occupancy of the marital residence may be included as well. An appeal from an adverse decision from the trial court must be carefully considered because one of the factors in determining final awards of custody is stability of the children. If the children have been living with the mother pursuant to a temporary order, the potentially extensive time between the temporary order and a final order may make it very difficult for the father to prove that a change in custody is in the children’s’ best interests. This can actually become a situation where the non-custodial parent has to seek a modification of custody, where the test is where there has been a "substantial change in circumstances" that makes modification necessary. Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 (1982), Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765 (1982), People ex. rel Wasserberger v. Wasserberger, 42 A.D.2d 93, 345 N.Y.S.2d 46 (1^st Dep’t 1973), affirmed 34 N.Y.2d 660, 335 N.Y.S.2d 580, 311 N.E.2d 651 (1974), Alanna M. v. Duncon M., 204 A.D.2d 409, 611 N.Y.S.2d 886 (2d Dep’t 1994).

 

2. Bear in mind that appellate courts are reluctant to substitute their judgment for that of the trial court. Eschbach v. Eschbach, supra.

 

3. However, the trial court’s discretion is not absolute; its determination of temporary custody may be set aside when it lacks a sound and substantial evidentiary basis. Gonzalez v. Gonzalez, 15 A.D.3d 481, 791 N.Y.S.2d 562 (2d Dep’t. 2005); Setty v. Koeneke, 148 A.D.2d 520, 538 N.Y.S.2d 857 (2d Dep’t. 1989).

 

 

C. An Additional Weapon - The Motion to Renew or Reargue (CPLR 2221)1. A motion for leave to reargue (CPLR 2221(d)) is made to the lower court when the court overlooked or misapprehended the facts or the law. CAUTION: the denial of a motion to reargue is not an appealable order.

 

 

 

2. A motion for leave to renew (CPLR 2221(e)) is based upon new facts not available at the time of the original motion, or a change in the law since the original motion that would change the prior determination.

 

3. The CPLR 2221 motion is not a substitute for a notice of appeal! It is good practice to file both, with the understanding that the CPLR 2221 motion is likely to be determined first.

 

 

 

 

 

IV. STAY APPLICATIONS ARE VITALLY IMPORTANT