Supreme Court, Monroe County, September 11, 2019

Charu Narang Reid, Rochester, for plaintiff.

Maroun G. Ajaka, Rochester, for defendant.

{**65 Misc 3d at 907}If a matrimonial action was commenced with the litigant represented by an attorney working for a pro bono, no-cost legal organization can the litigant seek interim attorney's fees in the pending action pursuant to section 237 of the Domestic Relations Law?

In this matter, the wife, without access to family bank accounts, sought legal representation through the Volunteer Legal Services Project (VLSP), a local pro bono organization that sets up free or low-cost legal services to qualifying litigants. The organization contacted an attorney, who agreed to represent the wife in her divorce litigation. At the time, the attorney understood that the representation was within VLSP's guidelines and she did not expect to be paid for her work on behalf of the wife. The wife signed a retainer letter which stated that the wife was "a client of VLSP of Rochester, NY," and that "you may request that your spouse pay for your legal expenses in this matter." It also adds that "you are aware that despite efforts to collect my fee from your husband, there is no certainty that he will make payment." The attorney later discovered that the wife had not completed her application with VLSP and as a result, was no longer subject to any restrictions on her representation. In addition, the wife temporarily elected to discontinue the pending divorce action, as it appeared that the couple had reconciled.

With an apparent reconciliation in the cards, the wife's attorney moved for an award of legal fees pursuant to Domestic Relations Law § 237 (a), arguing that the wife was the lesser moneyed spouse, knew only fragmented English, and had not been employed since she arrived as a married spouse in the United States in 2017. Wife's counsel further argued that the husband was a dentist and had business income in excess of $200,000 annually, which confirmed his status as the more-moneyed spouse. Counsel sought $7,070 in fees for representing the wife.

The husband argued that wife's counsel was not entitled to fees because after an initial conference with the court, the wife elected to reconcile and withdraw the divorce action, and the husband's attorney received an email from wife's counsel confirming that the couple had reconciled. However, after the husband signed a stipulation discontinuing the action, the wife declined to sign the stipulation and the matter remains pending before this court. Wife's counsel has subsequently informed the court that the wife has elected to continue the divorce action.{**65 Misc 3d at 908} The husband now disputes his income, claiming that, while a dentist, he has not generated significant fees and his annual income was "in the negative," and he is "almost indigent" and "struggling to pay his bills."

Before considering the legal issues involved in an award of fees, this court notes that the pending matter is rife with complications. In January 2019, the Monroe County Family Court issued mutual stay away orders of protection. While the orders have since expired, they attest to a concerning level of animosity between husband and wife. The wife, in an affidavit filed with the court, alleges domestic violence in her relationship with her husband.

A second complication arises because the couple was married in Lebanon under Islamic law. The couple is subject to a mahr, a marriage agreement in accordance with Islamic law wherein the husband pledges to pay the wife a deferred dowry in the event of a divorce. (Alesawy v Badawi, 56 Misc 3d 949, 951 n 1 [Sup Ct, Westchester County 2017].) Unlike a dowry, a mahr is not money or property that a wife brings her husband at the time of marriage. Rather, a mahr is a specific sum that a husband owes to his wife, which is payable upon divorce or death of the husband. (Zawahiri v Alwattar, 2008-Ohio-3473 [10th Dist 2008].) As a Massachusetts court explained, there is a debate over the legal impact of the mahr, and whether it is intended to provide support for the wife as the only thing she can recover from the marriage or whether it is an unencumbered gift. (Ravasizadeh v Niakosari, 94 Mass App Ct 123, 112 NE3d 807 [2018] [holding that an Iranian marriage mahr was enforceable in a divorce proceeding because the mahr was, under neutral principles of law, simply a contract].)

New York courts have encountered hurdles in enforcing mahrs or "deferred dowries" as well. In Farag v Farag (4 AD3d 502 [2d Dept 2004]), the Court refused to permit an "Egyptian Marriage Deed" (which provided a dowry to the wife in the event of a divorce) to dictate the terms of equitable distribution or marital support because the document did not contain an express waiver of the wife's rights under New York law and was not properly executed under New York's requirements. The Second Department seemed to take a different stance in Badawi v Alesawy (135 AD3d 792 [2d Dept 2016]). The Court upheld a mahr which required the husband to pay $250,000 to his wife when they divorced, even though the agreement, signed by two witnesses and the Imam of the Islamic Cultural{**65 Misc 3d at 909} Center of New York, was not acknowledged in accordance with Domestic Relations Law § 236 (B) (3). The Court held that "no strong public policy of New [*2]York" was violated by enforcing the payment. (Id. at 793.)

Some New York trial courts have resorted to strict construction of mahrs, holding that if they meet customary contractual requirements, they can be enforced. In O.Y. v A.G. (48 Misc 3d 1222[A], 2015 NY Slip Op 51190[U] [Sup Ct, Westchester County 2015]), the court noted that the mahr, while unusual under New York law, may be enforceable under Islamic law, even though signed by the wife's uncle, as her proxy, because the wife had given clear acceptance of the mahr before witnesses, but held that the defendant failed to provide sufficient evidence that the mahr was consistent with Islamic law or capable of enforcement in New York. In an earlier decision, the trial court in Aziz v Aziz (127 Misc 2d 1013 [Sup Ct, Queens County 1985]) held that a mahr executed in accordance with New York civil law could be enforceable, relying on the Court of Appeals decision in Avitzur v Avitzur (58 NY2d 108 [1983] [the Court, in a 4-3 decision, permitted enforcement of the secular terms of a ketubah, a contract at the heart of the Jewish marriage ceremony]).

In another instance, a New York trial court refused to enforce a mahr that limited a wife's equitable distribution claims of assets located in New York, even though the husband has been granted a divorce in Jordan under Islamic law. (Ahmad v Khalil, 51 Misc 3d 1212[A], 2016 NY Slip Op 50632[U] [Sup Ct, Kings County 2016].) Other state courts have applied similar contract formation requirements and reached similar conclusions. In Zawahiri v Alwattar (2008-Ohio-3473 [10th Dist 2008]), the Ohio court held that a husband's lack of access to an attorney, the haste in presenting the mahr until just prior to the marriage ceremony and other factors led to the conclusion that the husband was a victim of overreaching and the court declined to enforce the mahr.

The conclusion reached by the Ohio courts in Zawahiri v Alwattar may shine light on the mahr before this court. In a prior affidavit before this court, the wife alleges that the mahr—presented to the court in its original Arabic version—guarantees the wife $100,000, which the wife describes as a gift, enforceable at any time during the marriage. It appears that the mahr was executed on or about the time of the marriage. The wife alleges that after the mahr was created, the{**65 Misc 3d at 910} husband returned to the United States and told his wife that he would not file immigration papers for her unless she signed a postnuptial agreement. A postnuptial agreement, signed by the wife six months after the marriage and mahr, contains language restricting the wife's rights to property acquired during the course of the marriage. Husband's counsel also claims that the postnuptial agreement bars any claims for maintenance or other support, an argument that suggests that husband may seek to void the mahr.

The argument that the postnuptial agreement moots any claims for maintenance is inconsistent with representations made by the husband when he filed an affidavit of support for the wife as her sponsor for immigration into the United States. In that document, he agreed to provide his wife with any "support necessary to maintain him or her at an income level that is at least 125 percent of the Federal Poverty Guidelines."^[FN*] While the court has not, at this point, been asked to resolve whether the postnuptial agreement voids or limits the wife's claims to marital property or maintenance under the Domestic Relations Law, the underlying facts suggest this litigation may be prolonged and complicated, factors suggesting a significant interim counsel fee award would be apropos.

In another complication, there is an unresolved question of the [*3]husband's income. In Monroe County Family Court, when the wife filed a petition for support in early 2019, the husband provided his income tax return, which stated that he had approximately $28,000 in income in 2017. The Support Magistrate imputed income of $40,000 to the husband and ordered payment of $200 per week in support to the wife. The husband has an inconsistent history of income. In an immigration form filed in November 2016, the husband attested under penalty of perjury that he had income of $130,303 in 2015, $9,785 in 2014 and $289,784 in 2013. In addition, in his statement of net worth, filed in the matrimonial action, the husband attests that he had $5,527 in monthly expenses, which totals $66,324 in expenses annually, exclusive of income taxes. If this court accepts that figure without allocating state and federal income taxes, then his annual pretax income as of April 2, 2019, would be close to $75,000-$80,000. Even this analysis has complications{**65 Misc 3d at 911} because the husband, in his statement of net worth, suggests that he had $120,000 in credit card debt. The wife's statement of net worth adds nothing to the calculation of the husband's income. She lists virtually no household expenses and seems to be in the dark regarding family finances. She lists as assets only two items: $95 in a bank account and the $100,000 she alleges is owed to her under the mahr.

In resolving the question of whether attorney's fees can be awarded to an attorney representing a litigant under a pro bono services plan and determining the amount, this court is struck by a seeming paucity of precedents in New York. The United States Supreme Court in Blum v Stenson (465 US 886, 895 [1984]) intoned that federal courts should consider "reasonable fee awards" not whether the litigant's attorneys were acting in a pro bono capacity, declaring courts "must avoid . . . decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return." (Id.) In reaching that conclusion, the Supreme Court quoted with approval a lower court opinion directing:

"In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs' counsel . . . are employed by . . . a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys' fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys' fees." (Id., citing Davis v County of Los Angeles, 1974 WL 180, *2, 1974 US Dist LEXIS 8204, *5 [CD Ca, Jun. 5, 1974, No. 73-63-WPG].)

In New York, one court reiterated the theory espoused in Blum v Stenson and when asking whether a court should shortchange an undercharging attorney (who prevails in a landlord-tenant action), answered "[p]ublic policy considerations suggest not." (Milman v Cataldi, 139 Misc 2d 1067, 1070 [1988] [resolved under Real Property Law § 234 and awarding a reasonable rate of fees in excess of that charged by the prevailing attorney].) As one court noted: "The Milman court observed that courts routinely award legal fees to pro bono attorneys, who charge their clients nothing." (Ross v Congregation B'Nai Abraham Mordechai, 12 Misc 3d 559, 568 [Civ Ct, NY County 2006].) Similarly, other landlord-tenant decisions have allowed fees to litigants even if the tenants obtained free legal assistance{**65 Misc 3d at 912} and were not obligated to pay fees. (515 Ave. I Corp. v 515 Ave. I Tenants Corp., 29 Misc 3d 1228[A], 2010 NY Slip Op 52079[U] [Sup Ct, Kings County 2010].)

An important distinction between the cited cases—resolved under section 234 of the Real [*4]Property Law—and the wife's claim for fees under the Domestic Relations Law impels this court to award fees. Fees under section 234 of the Real Property Law are awarded to "prevailing" parties, tenants who have successfully prosecuted claims in our courts. (31-36 32nd St. Astoria, LLC v Nickell, 64 Misc 3d 137[A], 2019 NY Slip Op 51164[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019].) An award of interim fees under section 237 of the Domestic Relations Law is not predicated upon "prevailing"; it is expressly designed to permit a party parity in litigation over marital rights. The command under section 237 (a) is designed to give a party a chance to succeed with claims, not guarantee or reward their success. The legislature clearly wanted to address an imbalance between one spouse, who controlled their family and marital wealth, and the spouse who had labored to facilitate or directly assisted in creating the wealth, but was denied access to the bank accounts and other assets necessary to fund marital litigation. Interim financing of marital litigation is not a win or lose proposition: it grants a litigant an equal opportunity to protect their interest in marital assets. (See O'Shea v O'Shea, 93 NY2d 187, 190 [1999].) While the financing of the litigation is critical in the early stages, this court acknowledges that when the action is completed, the court can assess "the results obtained" and the "litigation conduct of the parties" in deciding a final fee award. (See Morrissey v Morrissey, 259 AD2d 472, 473 [2d Dept 1999] [court must consider "relative merits" of the parties' positions in assessing fees and may consider "stonewalling" conduct that results in unnecessary litigation]; see also Prichep v Prichep, 52 AD3d 61 [2d Dept 2008].) As this court has on occasion voiced in its courtroom, the goal of an interim award under section 237 (a)—as distinct from a final award—is to provide lighter fluid to keep the pot boiling on the stove not inject gasoline to let the litigation fire roar out of control and spoil the soup.

Under these circumstances, the fact that the wife may have been retained as a client for pro bono purposes through VLSP does not defeat the wife's interim claim for legal fees for her private attorney and an award of fees is appropriate to the wife's counsel. In considering the complex legal issues presented{**65 Misc 3d at 913} by this foreign marriage, the complications of the mahr and the postnuptial agreement and the issues involved in the family income, the court finds that the fees charged by the wife's counsel to this point are reasonable and fair and the rate is commensurate with fees charged for similar work in this community. The court awards $6,000 in interim fees to the wife's counsel and $3,000 of that amount shall be paid within 30 days of the entry of an order and thereafter, the husband shall pay $1,000 by the first of each month for three consecutive months until the entire sum is paid.

This matter will be returned to the regular calendar, as there are other motions pending that need the court's attention and perhaps a further conference to determine the status of the action and its resolution.