The Intersection Between Pendente Lite Counsel Fee Awards and the Judicial Power to Reallocate
The Appellate Division, First Department’s recent decision in Mezinev v. Tashybekova, 2020 NY Slip Op 06717 (1st Dept. Nov. 17, 2020) underscores the complexities that can be involved in determining when and under what circumstances to seek an interim counsel fee award. In Mezinev, the First Department affirmed Justice Drager’s award of “only $100,000 of the more than $280,000 in fees requested by the wife.” The final sentence of the one paragraph decision notes that “the interim award will be taken into account in determining the amount of the equitable distribution award.” To support this proposition, the First Department cited a case from 1994—16 years before the Domestic Relations Law was amended in 2010 to create the rebuttable presumption in favor of the non-monied spouse.
Under law, the non-monied spouse is presumptively entitled to an award of interim counsel fees to be on equal footing with the monied spouse when seeking, inter alia, his or her equitable share of the marital estate. Does the judicial power to fashion an equitable distribution award after trial that potentially hamstrings the non-monied spouse for receiving that very award before trial create a Catch-22 for the non-monied spouse? The answer is not cut and dried.
At the time of the 2010 amendments, the justification offered for the rebuttable presumption was clear: Ensure that the non-monied spouse is not at a disadvantage in pursuing his or her rights due to a lack of resources. As explained in a sponsoring memorandum for what was, at the time, S4532A:
Current law places an onus upon the party in a matrimonial action seeking counsel fees pendente lite, to show why the interests of justice require it. In addition, Judges appear reluctant to order pendente lite counsel fee awards in matrimonial actions under the current statute …
Given the importance of pendente lite counsel fees, and the frequency of financial imbalance between parties to matrimonial proceedings, it is inappropriate to place the burden upon a non-monied spouse to justify it.
With this in mind, §237(a) of the Domestic Relations Law now includes the following language:
There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court’s discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding.
The consequence of the 2010 amendments was material. As Justice Cooper explained in Sykes v. Sykes, 41 Misc.3d 1061, 1064 (Sup. Ct., N.Y. Cty. 2013): “The legislature made the fees provision even stronger in 2010 … Where previously the statute had merely given courts the power to direct the payment of interim counsel fees ‘as, in the court’s discretion, justice requires,’ the 2010 amendment is clear that such discretion should ordinarily be exercised in favor of awarding fees.”
To support the proposition that an interim counsel fee award can be taken into account in fashioning the equitable distribution of marital assets after trial, the Mezinev decision cites Plawner v. Plawner, 208 A.D.2d 408 (1st Dept. 1994). The First Department’s reliance on a case that far predates the 2010 amendments is a reminder that the 2010 amendments do not override the judicial power to reallocate under appropriate circumstances.
Justice Dollinger’s 2018 decision in Kinney v. Kinney, 2018 NY Slip Op 50023(U) (Sup. Ct., Monroe Cty. 2018) expounds upon the judicial power to reallocate in the context of interim counsel fee awards. In Kinney, the husband, “awaiting trial”, was awarded additional interim counsel fees. As Justice Dollinger explained, that award could well come with a price:
This case is past the final turn: the court must create a reasonable parity for the stretch run, while the parties and their counsel jockey for position on the merits. An award of $3000 in additional fees, paid by the wife to the husband’s counsel … will even the odds. If this award saddles the wife with excessive costs, the court reserves its right to re-allocate fees after trial when the court can determine who has prevailed on which issues and examine the tote board of equitable distribution to determine a final allocation of these otherwise necessary costs. This award still leaves the husband with “a horse in the race”—his exposure to additional fees during trial and the potential for reallocation of fees against his interest after trial – that should nose him—and his soon-to-be ex-wife (who faces the same choices)—closer to the finish line (emphasis added).
What Kinney suggests is that the non-monied spouse is not left with a Catch-22 when evaluating whether or not to seek a pendente lite counsel fee award. Instead, it suggests that the legal framework reaffirmed in Mezinev is a cautionary reminder to assess interim counsel fee applications with a long-term view.
If you have evaluated the likelihood of success on the merits for the positions you plan to take as a case progresses, and determined there is in fact a likelihood of success, then you should be on terra firma, i.e., an interim counsel fee award should not prove to be a double-edged sword after trial. If however you are relying on the rebuttable presumption without considering the merits, then the judicial power to reallocate might just be waiting to flex its muscles after trial—possibly rendering your pendente lite counsel fee award a distant memory.
“The Intersection Between Pendente Lite Counsel Fee Awards and the Judicial Power to Reallocate,” by Alan R. Feigenbaum was published in the New York Law Journal on March 5, 2021.
Reprinted with permission from the March 5, 2021, edition of the New York Law Journal © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.