The wife commenced this divorce proceeding against the husband on May 18, 2010. This Court bifurcated the issues of custody and parenting time from the financial issues. The issues of custody and parenting time were tried on November 14, 2011, February 17, 2012, February 22, 2012, March 6, 2012, March 14, 2012, April 2, 2012, April 30, 2012, May 2, 2012 and June 18, 2012. Counsel submitted written summations in September and October 2012 but the matter was not marked sub judice until December because counsel for the parties had not submitted copies of the trial minutes despite numerous requests from chambers that they do so. This Court issued a written decision on February 25, 2013 (see Mary E. v. Usher E., 38 Misc 3d 1229(A), Slip Copy, 2013 WL 823322).

On March 1, 2013, the attorney for the children moved by Notice of Cross Motion seeking an order of the Court (1) directing enforcement of the orders of appointment, and immediate payment by plaintiff and defendant of the outstanding sums; (2) directing the payment of legal fees and costs on this application; (3) directing payment of legal services rendered and costs expended pending the determination of this motion; (4) directing the clerk to enter judgment in those sums for legal services rendered and costs expended, as well as, counsel fees on this application, and/or any sum still outstanding should partial payment be made, if not paid within thirty (30) days of an order directing payment; (5) directing that the judgment clearly indicate "for necessary services performed by the creditor for the minor children of the debtor"; (6) directing that the parties provide a reasonable retainer, should additional legal services be needed on behalf of my clients; (7) if the relief in item "f" ([6]) above is granted, an order directing the entry of judgment for the sum awarded if it is not paid within ten (10) days of the order; (8) directing summary judgment for the amount owed; and (9) such other and further relief as this Court may deem just and proper. The attorney for the children's cross-motion was returnable March 5, 2013; however, the parties stipulated to adjourn the matter until April 24, 2013 because the defendant was sitting shiva for his father in Israel.

Melissa Bonaldes, Esq. was assigned by Judge Stewart Weinstein to represent the parties' three (3) minor female children of the parties by the Kings County Family Court on June 24, 2009.^[FN1] On May 18, 2010, the wife filed an action for divorce in the Kings County Supreme Court and moved to consolidate the Kings County Family Court custody matter with the divorce matter in Supreme Court. The wife's application to consolidate was granted on consent of both parties, who were represented by counsel, by order of this Court on July 6, 2010. On August 11, 2010, this Court appointed Ms. Bonaldes as attorney for the parties' three (3) minor female children on consent of both parties who were represented by privately retained counsel of their own choosing.^[FN2] The August 11, 2010 appointment order provided that the allocation of the [*2]financial responsibility between the parties for the attorney for the children's counsel fees would be determined on the adjourn date of August 18, 2010. At the court appearance on August 18, 2010, the Court found that neither the plaintiff nor the defendant was indigent and both parties were found capable of paying the hourly rate of $200.00 an hour. After an inquiry on the record regarding the parties' finances and ability to pay, the Court found that the parties should be financially responsible for the payment of the fees associated with the attorney for the children as follows: 20% by the plaintiff and 80% by the defendant.^[FN3] In her Affirmation in Support of her application, the attorney for the children avers that the plaintiff paid her 20% share ($400.00) and the defendant paid his 80% share ($1,600.00) of the initial retainer of $2,000.00 shortly after the Court issued the Amended Appointment Order on August 25, 2010. She avers that as of February 28, 2013, the parties were billed a total sum of $41,309.80 for legal services rendered for the children pursuant to the Court's August 25, 2010 appointment order. Of that $41,309.80, she avers that the plaintiff has paid the sum of $2,850.00 and the defendant has paid the sum of $6,480.00.^[FN4] In her Affirmation in Support of Cross Motion, dated February 28, 2013, the attorney for the children affirmed that, as of the last invoice sent to the parties, dated January 26, 2013, the parties' respective shares of the outstanding balance were as follows: $5,411.96 by the plaintiff and $26,597.84 by the defendant.

At the return date of her cross-motion on April 24, 2013, the attorney for the children represented that the current balance due and owing for legal services rendered pursuant to the Court's August 25, 2010 appointment order, including the April 24, 2013 court appearance, was $35,971.06 and that the parties' respective shares of the outstanding balance is as follows: $7,194.21 by the plaintiff and $28,776.85 by the defendant.The attorney for the children noted that the plaintiff provided a check in the sum of $100.00 the morning of the April 24, 2013 court appearance and that it had not yet been credited to the plaintiff. As such, the sum due and owing by the plaintiff as of April 24, 2013 was $7,094.21 once credited with the payment on April 24, 2013 of $100.00.

The attorney for the children affirmed that neither party has filed a motion to modify the appointment order or to modify the apportionment of payment of her fees pursuant to the order. She avers that throughout the litigation she sent the parties invoices, reflecting the work she performed and payments received from each party, regularly during the litigation. She further [*3]avers that neither party nor counsel ever objected to her bills and neither party has alleged an inability to pay. Counsel for the parties did not dispute the attorney for the children's representations.

The attorney for the children noted that the Court ordered the parties to pay the outstanding sum of legal fees due and owing to the attorney for the children by order dated February 17, 2012. At that time, plaintiff paid her share due and owing in the sum of $2,200.00 but the defendant paid only $2,000.00, which was less than his share due and owing. The attorney for the children avers that, based on the fact that one of her clients suffers from an eating disorder and the issue of which parent would make medical decisions on that child's behalf needed to be decided, she agreed with defendant's counsel to continue with the case and to give the defendant an opportunity to take out a mortgage on the marital residence so that he could pay his share of her legal fees but that the defendant did not make further payment toward his share of her counsel fees due and owing. She avers that she inquired with defendant's counsel repeatedly after February 2012 regarding whether the defendant had been successful in obtaining a mortgage in order to pay her legal fees but was told he had not been able to do so because the plaintiff refused to agree to the mortgage. She avers that on February 22, 2013 she received an Affidavit signed by the defendant stating that he did obtain a mortgage on the marital residence during the litigation based on a written agreement between the parties allowing him to do so in order to pay certain bills and debts including the costs associated with the attorney for the children.The attorney for the children avers that she never received a copy of the exhibits purportedly annexed to the defendant's February 22, 2013 Affidavit, including the written agreement between the parties permitting the mortgage. She further avers that she sent written notification to the parties' respective counsel that based on the large outstanding balance that she would file a motion for a money judgment and other non-financial relief if payment was not made by March 1, 2013. She avers that on February 26, 2013 she received two (2) checks from the plaintiff in the sums of $250.00 and $150.00. She avers that on February 28, 2013 she received four (4) checks from the defendant dated as follows: February 28, 2013; April 1, 2013; May 1, 2013 and June 1, 2013 and that each check states "payment plan for index 052855/2010". She avers that she immediately e-mailed both parties' counsel that the check dated February 28, 2013 would be deposited but that the other three (3) post-dated checks would be returned to defendant's counsel as she did not participate in or agree to a payment plan with either party and did not accept post-dated checks.

The plaintiff does not oppose the attorney for the children's application. The defendant opposes her application and filed an Attorney Affirmation in Opposition dated April 5, 2013. Defendant's counsel posits that the attorney for the children did not submit bills not less than every sixty (60) days pursuant to the August 25, 2010 Amended Appointment Order. Defendant's attorney avers that the attorney for the children did not provide any bills between August 16, 2012 and January 26, 2013 despite claiming fees and disbursements totaling $14,269.80 in those intervening months. He posits that, based on "her independent decision to delay sending out her bills", it would be "certainly fair" for the Court to delay allowing the attorney for the children to enter judgment against "either of the parties". Furthermore, defendant's counsel posits that the attorney for the children should not have filed a motion seeking a money judgment when she chose not to accept post-dated checks from the defendant. [*4]In his Affirmation dated April 5, 2013, defendant's counsel posits that there "could be several reasons why neither party disputed her billing, including the fact that no one wants to get the attorney for the children upset at them." He further posits that there was no indication from the attorney for the children directly or statement on her bills indicating that she would deem the parties to accept her billing statements if they did not dispute them within a certain period of time. He avers that the defendant is a man of "limited resources" and argues that because the defendant owes his own attorneys a large bill for legal fees rendered in this matrimonial action and that the attorney for the children should also have to wait to be paid. He further argues that it would be "axiomatic" for the attorney for the children to be granted a judgment against either of the parties until such time as the compensation and reimbursement billed by her has been approved by the Court in compliance with the August 25, 2010 Amended Appointment Order. He asks that the Court deny the relief requested by the attorney for the children.

The attorney for the children filed a Reply Affirmation in Suppose of her motion dated April 23, 2013. She avers that she "did not submit bills less than every 60 days, as 3-5 months (including the dates listed in footnote number 1 of [defendant's counsel]'s affirmation) is not less than 60 days - approximately 2 months" and therefore she is "not clear as to what noncompliance is being alleged." She avers that "[a]t no time during this case" until after she filed her motion for a judgment did the defendant or anyone on his behalf question the billed items in the bills or the receipt time fo the bills. She posits that she has been "more than patient and accommodating with the parties during the litigation" and that the defendant has not paid anything toward her bill since he made a $1,000.00 payment on June 18, 2012. She avers that defendant's counsel never informed her that the defendant eventually obtained a mortgage on the marital residence and that she never received any additional payment from the defendant after he obtained the mortgage despite his sworn Affidavit stating that he used a portion of the proceeds from the mortgage to pay her.

The Court heard oral argument on the attorney for the children's cross-motion on April 24, 2013. During that oral argument counsel for the defendant represented on the record that the defendant took a mortgage against the marital residence "[s]ometime in the summer of 2012" based on a written agreement between the parties. She stated on the record that her client's position was that he encumbered the marital residence in the sum of $250,000.00 which represented monies that he had already borrowed, not that he took a new mortgage in the sum of $250,000.00. During oral argument on April 24, 2013, counsel for the parties notified the Court that, without Court permission, the parties entered into a written stipulation, signed by the parties and their respective counsel, permitting the defendant to apply for a loan secured by the marital residence. The Court never approved or so-ordered said stipulation. Counsel provided the Court with a copy of the stipulation which provided that if the defendant was approved for a loan that the funds "shall be used for the payment of the forensic psychiatrist appointed by the Court and the children's lawyer appointed by the Court." Counsel for the parties provided a copy of the written stipulation to the Court during oral argument on April 24, 2013. The stipulation was not dated and it was not so ordered by the Court. The parties' stipulation provides that if the defendant utilized any portion of the funds to pay for his legal fees that the plaintiff may utilize funds in an equal sum and that all monies taken pursuant to the stipulation would be subject to reallocation at trial or subsequent agreement by the parties. Plaintiff's counsel represented on the [*5]record that she only learned that the defendant had taken a mortgage on the marital residence by finding the information in mortgage records online. Defendant's counsel did not represent to the Court that she ever provided notice to plaintiff's counsel or to the attorney for the children that the defendant obtained a mortgage on the marital residence. She argued that the defendant's income has already been garnished for fifty-five (55%) percent and that it is her client's position that issuing a judgment against him before the completion of the trial on the financial issues would be unfair because the parties' respective financial obligation for the costs associated with the attorney for the children is subject to reallocation at trial and that he believes that the plaintiff will be responsible for a large portion of the fees for the attorney for the children. Defendant's counsel requests that the Court hold it's decision regarding a judgment on the issue of legal fees for the attorney for the children in abeyance until the Court makes a final decision regarding the allocation of the cost after the financial trial and that interest, if any, would continue to accrue or, alternatively, she requests that the Court enter a judgment that could be entered subject to modification after any reallocation following a trial and decision on the financial issues. The trial on the financial issues is scheduled to begin on July 8, 2013.

On the record during the April 24, 2013 oral arguments, defendant's counsel conceded that her client took the mortgage based on a stipulation between the parties that was no so ordered by the Court. She further conceded on the record that "some of the monies" she was paid were "secured by that mortgage" but she represented that did not receive the money from a bank or ever saw a statement reflecting the mortgage. She represented to the Court that she did not know how much of the proceeds from the mortgage was paid to her for legal services rendered but that her client was putting together records tracing the proceeds of the mortgage proceeds in connection with the trial on the financial issues.

The attorney for the children opposes staying of any entry of a judgment for her fees against the defendant that would be subject to modification based on the Court's final decision regarding the parties' respective financial obligation following trial of the financial issues and proposes that the Court issue a judgment in the total sum due and owing for legal services rendered by her on behalf of the parties' children and that the Court adjust for any reallocation after trial through the Court's distributive award powers.

Plaintiff's counsel posits that the marital residence be placed on the market and that counsel fees be taken from the proceeds subject to reallocation with "very secure provisions to protect the rest of those monies."

It is undisputed that the joint rules adopted by the Appellate Divisions relating to attorney conduct in domestic relations matters require that attorneys provide "an itemized bill on a regular basis at least every 60 days" (see 22 NYCRR 1400.2). The Appellate Division, Second Department has held that attorney fees need not be denied "where there is substantial compliance with 22 NYCRR 1400.3 (see Wagman v. Wagman, 8 AD3d 263, 777N.Y.S.2d 678 [2 Dept.,2004]).^[FN5] [*6]

Whether or not a violation of 22 NYCRR 1400.2 vitiates the ability of an attorney to seek fees has been the subject of numerous appellate cases. The Second Department has held that an attorney who failed to execute and file a retainer agreement was not in "substantial compliance" with the provisions of 22 NYCRR 1400.3 and thus could not recover counsel fees from an adversary spouse (Sherman v Sherman, 34 AD3d 670, 824 N.Y.S.2d 656 [2 Dept.,2006]; see alsoPillai v Pillai, 15 AD3d 466, 467 [2 Dept.,2005]; Bishop v Bishop, 295 AD2d 382, 383 [2 Dept 2002]( ". . .violation of the rules governing the conduct of matrimonial attorneys precluded him from recovering unpaid fees for legal services rendered . . .");(Julien v Machson, 245 AD2d 122 [1 Dept.,1997] (an action to recover legal fees in a matrimonial action was dismissed upon plaintiff failure to comply with the requirements ". . . to file a copy of the retainer agreement with the court with a statement of net worth, to file a copy of the closing statement with the clerk of the court within 15 days of terminating the retainer agreement, to provide the client with the notice of her right to arbitrate any fee dispute prior to the institution of the action"^[FN6]). The Appellate Term, Second Department has also held that there was "substantial noncompliance" where an attorney only sent the client three (3) bills over a two and a half (2 ½) year time period (see Kaplowitz v Newman, 185 Misc 2d 205, 713 N.Y.S.2d 115 [2 Dept.,2000] (". . . plaintiffs' utter failure to comply with the 60-day billing requirement vitiates their right to legal fees"). The rule that emerges from a survey of the existing Appellate Division case law is that an attorney's "utter failure to abide by these rules" precludes the attorney from collecting fees, even if the services were already rendered (Julien v Machson, 245 AD2d 122, 666 N.Y.S.2d 147 [1 Dept.,1997]; see also Mulcahy v Mulcahy, 285 AD2d 587, 728 N.Y.S.2d 90 [2 Dept.,2001]) but where there has been "substantial compliance" with the matrimonial rules, an attorney will be allowed to recover the fees owed for services rendered, but not yet paid for (see Flanagan v Flanagan, 267 AD2d 80, 699 N.Y.S.2d 406 [1 Dept.,1999]; Markard v Markard, 263 AD2d 470, 692 N.Y.S.2d 733 [2 Dept.,1999]; Granato v. Granato, 75 AD3d 434, 904 N.Y.S.2d 67 [1 Dept.,2010]). Generally, the finding of a lack of substantial compliance has been based upon a complete, nearly complete or flagrant disregard for the applicable rules (see Sherman v. Sherman, 34 AD3d 670, 824 N.Y.S.2d 656 [2d Dept, 2006]; Wegman v. Wegman, 8 AD3d 263, 777 N.Y.S.2d 678 [2d Dept, 2004]). On the other hand, a technical violation which does not undermine the underlying policy of protecting the public from known abuses in the field of matrimonial law will not prevent a recovery (see Gross v. Gross, 36 AD3d 318, 830 N.Y.S.2d 166 [2d Dept, 2006]).

Here, it is undisputed that the attorney for the children was appointed by Court order, on consent of the parties who were each represented by private counsel of their choosing. Neither party disputes that the attorney for the children sent bills to the parties through their respective counsel detailing the legal services rendered on behalf of the parties' children during the custody proceeding; however, defendant objects to the timing of the bills which he does not dispute that he received. The plaintiff does not object to the bills sent by the attorney for the children. The defendant does not object to the accounting in the bills sent but objects to the bills on the basis that they were not sent within the sixty (60) days provided for in the court appointment order and under 22 NYCRR 1400.2. The Court notes that the only time the defendant objected to the bills [*7]from the attorney for the children was after she sought judicial intervention on the issue based on the parties' non-payment of the outstanding bills (see generally Werner v. Nelkin, 206 AD2d 422, 614 N.Y.S.2d 66 [2 Dep.,1994]).

The Court finds credible the attorney for the children's representation that she did not submit itemized bills more frequently than every 60 days because she interpreted that portion of the Court's amended appointment order, dated August 25, 2010, providing that bills shall be sent "no less often than every 60 days from the date of this order" to mean that she must send bills to the parties more than 60 days apart. The attorney for the children annexed bills to her cross-motion dated January 7, 2011 (4 months after the appointment order); March 7, 2011 (2 months from previous bill); April 20, 2011 (less than 2 months from previous bill); July 12, 2011 (less than 2 months from previous bill); October 3, 2011 (3 months from previous bill); February 10, 2012 (3 months from previous bill); May 1, 2012 (2 months from previous bill); August 16, 2012 (3 months from previous bill); January 26, 2013 (4 months from previous bill). The Court notes that it was undisputed by the parties through counsel at the oral arguments on April 24, 2013 that the parties received the above-detailed bills sent by the attorney for the children. It is evident that the attorney for the children did not delay sending itemized billing statements to the parties through counsel in an effort to prejudice either party.

It is undisputed that neither the plaintiff nor the defendant objected to the attorney for the children's bills prior to when she filed her cross-motion seeking a judgment for outstanding legal fees for services rendered. It is also undisputed by the parties that the attorney for the children regularly addressed the issue of the steadily increasing outstanding bill owed by the parties during the custody proceeding and that the defendant, through counsel, repeatedly represented that he was seeking loans in order to pay his outstanding balance due to the attorney for the children. The defendant did not dispute that he repeatedly represented that he would pay his share of the legal services rendered by the attorney for the children. The Court also finds credible the attorney for the children's representation that she continued representation of the parties' children, despite the steadily increasing balance owed by the parties because on the defendant's representation that he would pay her when he obtained the mortgage against the marital residence (agreed to by the parties by written stipulation) and because one of the children suffered from a potentially life-threatening eating disorder.

The intent of 22 NYCRR 1400.2 requiring attorneys to bill clients every 60 days was to keep litigants apprised of the amount of legal expenses they are incurring for legal services rendered in a timely manner.^[FN7] In the case at bar, the defendant seeks to utilize the attorney for the [*8]children's misreading of the Court's August 11, 2010 appointment order, which provides that bills shall be sent "no less often than every 60 days" from the date of the appointment order, to avoid paying the attorney for the children for legal services rendered to the parties' children, including a child who was suffering from a potentially life-threatening eating disorder during the pendency of the custody trial. The Court notes that the attorney for the children sent bills approximately every two (2) to three (3) months. Furthermore, the Court notes that the defendant did not contest the attorney for the children's representation that he repeatedly represented through his counsel that he was actively seeking a loan in order to pay his outstanding balance to the attorney for the children. The Court further notes that it is undisputed that the defendant mortgaged the marital residence but did not notify the attorney for the plaintiff or the attorney for the children and did not pay his outstanding balance due and owing to the attorney for the children. Under the facts and circumstances here, the Court finds that the attorney for the children's technical violation of the sixty (60) day billing requirement does not rise to the level of "substantial noncompliance" and it shall not preclude her from collecting the sum due and owing to her for legal services rendered to the parties' children pursuant to this Court's appointment order which was on consent of the parties through counsel.

The Court notes that the plaintiff does not oppose the attorney for the children's application. The Court also notes that the defendant did not challenged the accuracy of any entries on the bills submitted by the attorney for the children or deny that it is an accurate accounting of the balance due and owing to the attorney for the children. The Court notes that the bills sent by the attorney for the children appear reasonable given the facts and circumstances of this matter, the volume of motion practice and the number of court appearances and trial dates. The attorney for the children's application seeking summary judgment on the issue of the balance due and owing in the sum of $35,971.06 is granted pursuant to CPLR 3212 and CPLR 3213.

The Court, after detailed inquiry on the record during the April 24, 2013 oral argument when both parties and their respective counsel were present, found that the financial responsibility of the parties for the costs associated with the attorney for the children were inverted in the appointment order, dated August 25, 2010. As such, the Amended Order Appointing Attorney for the Children is amended as follows to reflect the correct financial responsibility of the parties for the counsel fees due and owing to the attorney for the children: the parties shall be responsible for the costs associated with the attorney for the children 20% by the plaintiff and 80% by the defendant.

The Second Department, Appellate Division has held that it is proper for the Supreme Court to approve the final compensation request of an attorney for the child[ren] appointed private pay in accordance with 22 NYCRR part 36 (see Pascazi v. Pascazi, 65 AD3d 1202, 885 N.Y.S.2d 735 [2 Dept.,2009]. The Court notes that neither party challenged the accuracy of any entries on the bills provided by the attorney for the children. As such, the Court finds that parties' respective shares of the costs associated with the attorney for the children are as follows: the plaintiff, $7,094.21 (her 20% of the balance due and owing in the sum of $35,971.06 after being credited for her payment of $100.00 on April 24, 2013) and the defendant, $28,776.85 (his 80% of the balance due and owing in the sum of $35,971.06). [*9]

The Second Department, Appellate Division has held that "[w]hile necessaries have traditionally be defined to include a child's most basic needs, such as food, clothing, shelter, and medical care, in appropriate circumstances, the duty to provide necessaries may obligate a parent to provide a child with counsel [internal citations omitted]" (Plovnick v. Klinger, 10 AD3d 84, 90, 781 N.Y.S.2d 360 [2 Dept.,2004]). A parent's duty to pay for legal services provided to a child as necessaries has also been recognized by the New York State Court of Appeals in Felder v. Mohr (39 NY2d 1002, 387 N.Y.S.2d 241 [1976]). The Court finds that the counsel fees due and owing to the attorney for the children are for necessaries in the form of court-ordered legal services to the minor children of the debtors (see In re Peters, 964 F2d 166 (1994); see also Franelli v. Barclay, 100 Misc 2d 471, 419 N.Y.S.2d 813 [Nassau Dist Ct 1979]; see generally Plovnick v. Klinger, 10 AD3d 84, 781 N.Y.S.2d 360 [2 Dept.,2004]; see also D'Agostino v. Genovese, 190 AD2d 773, 593 N.Y.S.2d 552 [2 Dept.,1993]).

The attorney for the children may immediately enter a judgment again the plaintiff for her respective portion (20%) of the balance due and owing to the attorney for children for legal services rendered to the parties' children in the sum of $7,094.21 (her 20% of the balance due and owing in the sum of $35,971.06 after being credited for her payment of $100.00 on April 24, 2013) plus statutory interest. The attorney for the children may immediately enter a judgment again the defendant for his respective portion (80%) of the balance due and owing to the attorney for the children for legal services rendered to the parties' children in the sum of $28,776.85 (his 80% of the balance due and owing in the sum of $35,971.06) plus statutory interest. Any judgment filed by the attorney for the children relating to the failure of a party to pay his or her portion of the counsel fees due and owing may specify in the judgment that the fees are for necessaries in the form of court-ordered legal services to the minor children of the debtors.

The Court notes that if it adopted the defendant's proposition that a judgment should not be entered against him until the financial issues are fully resolved after trial then it would create a precedent whereby attorneys representing children would not be able to seek enforcement of counsel fees due and owing for services rendered until financial trials were completed in each matter. This Court will not create a precedent whereby litigants could choose to ignore Court orders and make attorneys representing children wait until the conclusion of litigation, and possible reallocation, to be paid. The defendant-herein would not agree to work for over a year without getting paid yet, based on his argument herein, he expects the attorney for the children to do so. Furthermore, the Court notes that the act of the defendant in securing a mortgage without court permission and invading a marital asset ostensibly to pay fees only to then challenge payment of that fee is concerning. The Court notes that the affirmation of Natan Shmueli, Esq. on defendant's behalf which opposes counsel fees to the attorney for the children fails to note that his firm received some payment from the proceeds of the mortgage on the marital residence which was not approved by the Court. During the court appearance on April 24, 2013 the Court inquired whether defendant's counsel received any proceeds from the mortgage and, if so, how much. [*10]

THE COURT:...Were you [defendant's counsel] paid from those mortgage proceeds at all?

MS. HERSKO-EPSTEIN:Judge, it's my understanding that some of the monies that I was paid were secured by that mortgage, but I don't — I didn't get any money from any kind of bank or saw a statement that —

THE COURT:Do you know how much was that mortgage paid to you?

MS. HERSKO-EPSTEIN:No, your Honor, I don't.

THE COURT:Does your client?

MS. HERSKO-EPSTEIN:Judge, I think these are parts of the record he's putting together for the trial on the financial issues.

The Court notes that the marital residence is an asset subject to equitable distribution and is a subject of the financial trial scheduled to begin on July 8, 2013. Any disposition or sale of the marital residence may only occur after a trial and final determination by this Court. As such, any necessary reallocation of the judgments entered against the parties for outstanding counsel fees due and owing to the attorney for the children can be made at the time of trial and the judgments may be modified based on any reallocation after trial.

This Court will not establish a standard whereby court appointed attorneys for children must wait to collect counsel fees due and owing for legal services provided to children on consent of the parties until such time as a party chooses to pay. Attorneys for children, like all attorneys, have overhead expenses and bills that must be paid. This Court will not condone a litigant's decision not to pay outstanding counsel fees due and owing for legal services rendered by an attorney for children. Furthermore, attorneys for children should not be placed in a position where they are, in effect, subsidizing the parties' litigation by providing interest-free "loans" to the litigants in the form of an uncollected, interest-free balance due (see generally Musachio v. Musachio,

80 AD3d 738, 915 N.Y.S.2d 497 [2 Dept.,2011]; Winters v. Winters, 25 AD3d 601, 807 N.Y.S.2d 302 [2 Dept.,2006]).

If either of the parties fail to make payment within ten (10) days of service upon his or her counsel of this decision and order, the attorney may enter a judgment with the Clerk of the Court with costs and interest from said date, upon ten (10) days notice to the defaulting party, and without further application to this Court, for the amount due and owning, plus statutory costs and interest.

This shall constitute the decision and order of this Court.

ENTER [*11]

Hon. Jeffrey S. Sunshine

J.S.C.