Divorce Lawyers New York - Recent Family Law Decisons (73)
RECENT FAMILY LAW DECISIONS (73)
Abuse of Discretion
In General
It was error for the trial court to have reopened the proofs for determining attorney fees over defendant’s objection in order to allow evidence tending to establish an obligation which was not considered by the parties in their agreed settlement, nor claimed at the prove-up.
Where, in court order without any further evidentiary hearings, the court allowed defendant leave to bring appeal as a poor person, while at the same time finding defendant financially able to pay plaintiff’s attorney fees for an appeal, the findings of the trial court were sufficiently inconsistent to motivate the appellate court to conclude that the trial court abused its discretion in entering such order.
The awarding of attorney fees lies within the sound discretion of the court, but if the opposite party has requested a hearing on the question of attorney fees, the court must hear some evidence on that point.
In the absence of a request for the hearing of evidence, the chancellor could base an award of attorney fees on the financial circumstances of the parties as shown by the record, statements of counsel as to necessary services, and the chancellor’s own experience.
Ability to Pay
Where wife was gainfully employed and enjoyed disposable income of approximately $379 per month, while husband was disabled on a fixed income of social security and was unable to maintain the modest lifestyle that the parties enjoyed during the course of the marriage, the trial court abused its discretion in ordering husband to pay any of wife’s attorney fees.
Where a court allowed an additional sum to defendant’s attorney to defend the first appeal, this allowance was error, inasmuch as the defendant had assets with which to defend the appeal and could pay her attorney from her share of the proceeds of the sale of the parties’ house.
Assessment of Fee in Advance
Where it was obvious the defendant had a one-half interest in the real estate and was not without assets with which to pay her attorney, it was an abuse of discretion and error for the trial judge to assess an advance attorney fee against plaintiff.
Not Shown
Based on an ex-wife’s assets of $129,215.53, exclusive of the children’s custodial accounts, her IRA, and her home quality, plus the substantial maintenance payments of $7,000 a month she was to receive for five years after the parties’ divorce, a trial court did not abuse its discretion in ordering her to pay $4,000 of the $10,000 it determined to be a reasonable fee for post-dissolution attorney fees, notwithstanding the wife’s law school expenses, which she was not required to pay in a lump sum and would not have to begin repaying until six months after her graduation.
Trial court did not abuse its discretion in determining that $10,000, not the request $70,000+, was a reasonable amount for the wife’s attorneys fees in post-dissolution proceedings concerning the children’s summer camp expenses and vacations. The issues were not complex, the disputed issues were minor, the drawn-out litigation was due to both parties’ litigiousness and were not solely the fault of the husband, neither party “won” the majority of the claims, and the wife’s attorneys did not submit any evidence that its wife needed their most experienced counsel for over 100 hours of the work that he billed.
