You better listen up

What I say

You went and lived it up

Now ya pay. You're gonna bite the bullet feel the bat

Be begging for a heart attack.

You borrowed now you can't repay

Collection on your judgment day.

—Adrenaline Mob, "Judgment Day"

Music and lyrics by Russell Allen and Mike Orlando (2014)

As is a common occurrence in matrimonial cases, the parties to this divorce have overextended themselves and incurred significant attorneys' fees without any realistic hope of paying them in the near future. This action was commenced on October 11, 2011. During four days of January and February, 2013, a non-jury trial was conducted on the issues of equitable distribution, allocation of marital debt, and child support and maintenance. On October 7, 2013, this court rendered its Decision After Trial, and advised the parties to attempt to resolve the issue of the wife's request to have the husband pay her attorney's fees, before seeking court intervention. On January 30, 2014, after the parties reached no agreement, a hearing was held. Neither party was present, but their attorneys were, and testimony was given by them. The court considered the testimony elicited at the trial and the fee hearing, the exhibits entered into evidence, and the parties' post trial submissions in making its determination.

The parties were married on December 29, 2006, in a civil ceremony in White Plains. The parties have two minor children, a seven year-old and a four year-old (who has Down Syndrome), and the wife has a fifteen year-old son from a previous relationship. The wife is 49 years old, and the husband is 44. As noted in the Decision after Trial, in 2011, the husband earned $85,500, and the wife has not worked outside the home for several years.

NOW, based upon the foregoing, the court now considers the merits of the wife's application for an award of counsel fees. Her fees total over $57,500, of which the wife has already paid $12,350 to her counsel, leaving a balance of over $45,000. To support the instant counsel fee application, the wife's attorney submitted time sheets that show the significant time spent by the wife's counsel in this matrimonial matter, and that his hourly rate is a reduced rate of $225 per hour. The husband offers that his own counsel fees, which include this action, the short sale of the marital home, defending suits brought by American Express and foreclosure proceedings, total over $79,834, of which $7,500 has been paid, and over $72,000 is still due and owing.

"An award of counsel fees pursuant to Domestic Relations Law §237(a) is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case" (Prichep v. Prichep, 52 AD3d 61,64 [2d Dept 2008]); Carr-Harris v. Carr Harris, 98 AD3d 548,552 [2d Dept 2012]). In other words, in determining the application, the court [*2]will consider the financial circumstances of both parties, together with all other circumstances of the case, including the relative merit of the parties' positions, "their ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances" (Grumet v. Grumet, 37 AD3d 534,536 [2d Dept 2007]).

The intent of the provision is to create a more level playing field with respect to each party's ability to pay counsel fees, and "to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence" ( Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL C237:1). The amount that a party receives in equitable distribution is relevant to the issue of counsel fees (Morrongiello v. Paulsen, 195 AD2d 594, 597 [2d Dept 1993]). A court may also take into consideration a party's large distributive award, and possession of substantial assets which are sufficient to enable that party to pay litigation expenses, especially if after an equitable distribution award the parties' financial condition is fairly similar (Grumet v. Grumet, 37 AD3d 534, 536-537 [2d Dept 2007] Chase v. Chase, 208 AD2d 883,885 [2d Dept 1994]). Moreover, the court may consider a party's superior earning power and whether a party engaged in conduct or tactics which unnecessarily prolonged the litigation resulting in the other party incurring otherwise unnecessary legal fees (Nee v. Nee, 240 AD2d 478,479 [2d Dept 1997] Chamberlain v. Chamberlain, 24 AD3d 589,595 [2d Dept 2005] Powers v. Wilson, 56 AD3d 639,641 [2d Dept 2008]). In considering a counsel fee application, the trial court must review "the difficulty of the questions involved, the skill required to handle the case, specifics as to the time and labor required, the attorney's experience, ability and reputation, and the customary fee charged for similar services" (Sand v. Lammers, 150 AD2d 355,356 [2d Dept 1989]).

"Matrimonial litigation in New York is expensive. It has been repeatedly recognized that in a fiercely contested case, the costs of the litigation can consume the marital estate of even an affluent couple" (Charpie v. Charpie, 271 AD2d 169, 170-171 [2d Dept 2000]). "An award of an attorney's fee is designed to redress the economic disparity between the spouses, it is not intended to address a party's decision to proceed to trial rather than agree to a settlement" (Comstock v. Comstock, 1 AD3d 307, 308 [2d Dept 2003], citing O'Shea v. O'Shea, 93 NY2d 187 [1999]).However, in determining whether and how much a court should award in attorney's fees, DRL 237(a) makes it clear that the court must take into account "the circumstances of the case and of the respective parties." Here, as in most matrimonial cases, the parties themselves are in the best position to establish what limits must be self-imposed when incurring attorney's fees. Why? Because it is their life. Parties live together. They budget. They spend. They observe. Generally speaking, they know or should know what the basic overall financial picture of their marriage is—based upon first-hand knowledge, and based upon the Statement(s) of Net Worth and documents provided through discovery. Obviously there are rebuttals to this assumption, such as wasteful dissipation cases where one spouse is unaware of the other's misdeeds; where one spouse is highly educated and sophisticated and the other is not; where physical or serious emotional abuse has left one spouse unable to participate in or gain information with regard to financial matters; or where affirmative actions by one spouse can be shown to have precluded the other from knowledge of significant financial matters.

In this matrimonial action, the marital assets and debts were equitably distributed, and support to the wife was properly calculated. However, at the end of the day, the financial circumstances of the parties are not on par, based upon the husband's superior earnings potential. [*3]Therefore, even after taking into consideration the maintenance and child support already awarded to the wife, the court finds that the husband has superior earning power, and thus, the court believes that this is appropriate to award some counsel fees. The wife's counsel properly submitted her time records and set forth appropriate evidence of the services provided in this matrimonial litigation (Cervone v. Cervone, 74 AD3d 1268,1269 [2d Dept 2010]).The court also reviewed the value of counsel's services, the time and effort devoted to the action, the nature of the services, the complexity of the matters and the results achieved.

However, as noted above, the court must also consider the overall financial picture of the parties. Counsel for the husband accurately points out that from the financial perspective of the parties and counsel, "This case was a loser all around." The parties are, and were at all times of limited means and minimal assets. In this case, counsel for both sides ably and professionally represented their clients, and earned their fees for their professional services. Could they have worked harder to avoid a trial? Perhaps. But ultimately, it is a litigant's responsibility to be aware of and recognize when the fees are growing beyond what the case merits or a level that they can reasonably afford. That recognition came entirely too late to these litigants, as they each amassed attorneys' fees far in excess of what their marital assets and lifestyle were, and what reasonable expectations should have warranted.^[FN1] Neither of them have a cash business or a huge trust fund. While they rarely agree, they jointly made the decision to squander the assets they had on attorneys and to go into significant debt. It is only appropriate that each of them have a "skin in the game" and share the cost of this litigation (See Sykes v. Sykes, 41 Misc 3d 1061 [New York Co. 2013]).

In considering how to allocate the wife's fees, the court notes that despite his greater income, the husband is significantly in debt, and owes nearly double the amount of attorney's fees that the wife owes. He will not have his head above water any time in the foreseeable future. Based upon the totality of the circumstances, including an examination of the parties' incomes, and their assets and liabilities ^[FN2] and weighing the equities, the court awards the wife $3,500 in counsel fees. This sum shall be paid by the husband directly to the wife within 90 days of this Decision and Order. The court deems this award of counsel fees and expenses to be reasonable under these circumstances (Theroux v. Theroux, 145 AD2d 625,628 [2d Dept 1988]).

Therefore, it is hereby:

ORDERED, that, in the event that the husband fails to comply with payment of counsel fees of $3,500 to the wife as directed, upon such default, Elizabeth Antizzo may enter a judgment against Scott Cannizzaro in the amount of $3,500 plus interest, less any credits for any sums paid toward this counsel fee award, without further notice. Upon service of a copy of this Order, and an appropriate affidavit of default upon the Clerk of the Court, the Clerk is directed to enter said money judgment in favor of Elizabeth Antizzo, and against Scott Cannizzaro, and Elizabeth Antizzo shall execute [*4]thereon.

CONCLUSION

The court has considered the additional contentions of the parties not specifically mentioned herein and finds them to be without merit.

This constitutes the Decision and Order of this Court.

Dated:White Plains, New York

March 28, 2014

HON. CHARLES D. WOOD

Justice of the Supreme Court