Second Department Holds Counsel Fees to Nonmonied Spouse Generally Warranted Where a Significant Disparity in Parties Financial Circumstances and Should Not Be Denied, or Deferred Absent Good Cause, Articulated in a Written Decision

In Prichep v Prichep, --- N.Y.S.2d ----, 2008 WL 1987254 (N.Y.A.D. 2 Dept.) the Second Department, in an opinion by Justice Prudenti, held that because of the importance of such awards to the fundamental fairness of the proceedings, an award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties and should not be denied, or deferred until after the trial, which functions as a denial, without good cause, articulated by the court in a written decision. It cited as examples of good cause, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case. It based this conclusion on the fact that when an action for a divorce is commenced, it is often the case that most of the marital assets available for the payment of legal fees are possessed or controlled by one of the spouses, usually the husband. In order to ensure that the parties will have equal access to skilled legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the nonmonied spouse during the course of the litigation. The court pointed out that when a party to a divorce action requests an interim award of counsel fees, as opposed to a final award, a detailed inquiry is not warranted. The husband commenced the divorce action in 1998. In June 2005, the wife made a pretrial motion for interim counsel fees of $35,000. The wife's motion papers noted that, although the court previously had awarded her interim counsel fees of $20,000, she currently owed her attorneys $53,009. The wife pointed out that the husband was a "highly successful vascular surgeon," earning $420,100 per year, while she worked part-time as an early intervention therapist, earning $4,015 per year. In opposition to the wife's motion, the husband argued that the wife had "over-litigated" the case, creating and submitting voluminous and unnecessary papers, and thus generating excessive counsel fees. Supreme Court denied the wife's motion "without prejudice to renewal before the trial court to determine the financial circumstances of the parties, the nature and complexity of the case, which includes the valuation of a medical practice, the fees filed and legal services rendered and the expertise of the attorneys." The wife thereafter moved to renew her prior motion and for an additional award of interim counsel fees of $40,000. Her attorney submitted an affidavit asserting that the wife now owed his firm $159,000 in legal fees, as well as invoices and attorney time records documenting billings in that amount. In the alternative, the motion sought leave to withdraw as her counsel. Supreme Court denied the motion for fees but granted the law firm's request to the extent of relieving it as counsel for the wife. An award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse. Such an award "is appropriate 'to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation' "(citing Gober v. Gober, 282 A.D.2d 392, 393, quoting O'Shea v. O'Shea, 93 N.Y.2d at 193; see Charpie v. Charpie, 271 A.D.2d 169). If the playing field were not leveled by an award of interim counsel fees, "a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior matrimonial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis".