Calendar Date: November 20, 2019
K. Hayner, Saratoga Springs, for appellant.
Offices of Kimberly B. Allen, Saratoga Springs (Kimberly B.
Allen of counsel), for respondent.
Before: Clark, J.P., Mulvey, Devine and Pritzker, JJ.
from a judgment of the Supreme Court (Meyer, J.), entered
June 28, 2018 in Essex County, which, among other things,
denied plaintiff counsel fees, upon a decision of the court.
(hereinafter the wife) and defendant (hereinafter the
husband) were married for more than eight years when the wife
filed for divorce. The husband proceeded without counsel,
but, by the close of the trial, the wife had incurred more
than $30, 000 in counsel fees and litigation costs. The
primary issues at trial were the equitable distribution of
the marital residence and the payment of counsel fees.
Supreme Court granted the wife a divorce, equitably
distributed the marital property and denied the wife's
request for counsel fees. The wife appeals, addressing only
the issue of counsel fees.
affirm. Domestic Relations Law § 237 (a) (6) provides
that a court in a divorce action "may direct either
spouse" to pay counsel fees "to enable the other
party to carry on or defend the action or proceeding as, in
the court's discretion, justice requires, having regard
to the circumstances of the case and of the respective
parties. There shall be a rebuttable presumption that counsel
fees shall be awarded to the less monied spouse."
"When exercising its discretionary powers in this
regard, a court should review the financial circumstances of
both parties together with all the other circumstances of the
case, which may include the relative merit of the
parties' positions, as well as the complexity of the case
and the extent of legal services rendered" (Teaney v
Teaney, 138 A.D.3d 1301, 1302-1303  [internal
quotation marks and citations omitted]; see Yarinsky v
Yarinsky, 25 A.D.3d 1042, 1042 ). The party
seeking an award of counsel fees must establish an
evidentiary basis as to both "the parties'
respective financial circumstances and the value of the legal
services rendered" (Curley v Curley, 125 A.D.3d
1227, 1231 ; see Bush v Bush, 46 A.D.3d 1140,
1141 ). Absent an abuse of discretion, the trial
court's determination on the counsel fees issue will not
be disturbed (see Kimberly C. v Christopher C., 155
A.D.3d 1329, 1336 ; Bush v Bush, 46 A.D.3d at
wife did not establish that she was entitled to a rebuttable
presumption of an award of counsel fees, as she did not prove
that she was the less monied spouse. She testified that,
although she obtained full-time employment relatively
recently, her annual salary was $48, 000, whereas the husband
earned $44, 000. The husband testified that, while he was
unemployed for a time during the marriage, he depleted his
pension and 401(k) account from a previous employer. He also
indicated that he might have to file for bankruptcy and would
not be able to afford to move if he had to sell the marital
residence. Supreme Court noted the lack of evidence regarding
how the wife had supported herself during the marriage; this
included a period of more than a year when she had moved out
of the marital residence and was employed in a part-time,
seasonal position at which she earned only a few thousand
dollars per year. We cannot say that the court abused its
discretion in concluding that the wife failed to prove that
she was the less monied spouse or that the parties'
respective financial circumstances warranted an award of
counsel fees (compare Gordon-Medley v Medley, 160
A.D.3d 1146, 1148 ).
Supreme Court did not mention any other factors that it may
have considered in denying the wife's request for counsel
fees, we decline to disturb its determination. The
husband's position regarding the marital residence may
not have had much merit, but his position was not frivolous,
especially considering that he was unrepresented. The case
was not particularly complex. The wife complains that the
husband delayed the action by, for example, failing to
respond to discovery demands. Although we do not condone the
husband's lack of diligence, the wife did not move to
compel compliance nor seek a court order for an appraisal of
the residence prior to trial, either of which would
presumably have been a more expeditious and fruitful method
of addressing the husband's alleged lack of cooperation.
Considering all the circumstances, we will not disturb
Supreme Court's discretionary decision to deny the
wife's request for counsel fees (see Teaney v
Teaney, 138 A.D.3d at 1303-1304).
J.P., Devine and Pritzker, JJ., concur.
that the judgment is ...