Matter of S.M. v. L.M., NYLJ| April 09, 2021, Date filed: 2021-03-19, Court: Family Court, Nassau, Judge: Judge Linda Mejias:

“It is unrefuted that the Petitioner failed to comply with Article XXX of the Stipulation, which requires proper notice of any alleged default in the parties’ custody arrangement to be sent in writing to the defaulting party, and served by mail, return receipt requested, within twenty (20) days of said default. Though the provision does not set forth an explicit waiver of the right to seek fees under a relevant statute, provisions such as these are aimed at reducing the parties’ need for court intervention thereby limiting their exposure to unnecessary legal fees. While no one can guarantee that a non-compliant party will cure a default, the hope is that they will and that litigation will therefore not be necessary.

Generally, “[w]here the parties have agreed to provisions in a settlement agreement which govern the award of attorney’s fees, the agreement’s provisions, rather than statutory provisions, control” (Matter of Berns v. Halberstam, 46 A.D.3d 808, 809, 848 N.Y.S.2d 323 [2007]; accord Matter of Tanenbaum v. Caputo, 81 A.D.3d 839, 839, 916 N.Y.S.2d 811 [2011]; see Gardo v. Radominski, 252 A.D.2d 971, 972, 676 N.Y.S.2d 371 [1998]). “However, a party may seek the recovery of fees under both the statute and an agreement, unless the agreement contains an express waiver of the right to apply under the statute…, [and] provided that the party may not recover twice for the same fees” (Alan D. Scheinkman, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 14, Domestic Relations Law §237 at 19; see generally Millard v. Millard, 246 A.D.2d 349, 350, 667 N.Y.S.2d 714 [1998]; Canick v. Canick, 122 A.D.2d 767, 768-769, 505 N.Y.S.2d 652 [1986]). Where there is no express waiver, a statutory award of counsel fees remains discretionary (see Canick v. Canick, 122 A.D.2d at 769, 505 N.Y.S.2d 652).

Notwithstanding his failure to comply with the Stipulation, the Court is compelled to apply D.R.L. §238 given the absence of an express waiver. Domestic Relations Law §238, provides, in relevant part, as follows:
In any action or proceeding to enforce or modify any provision of a judgment or order entered in an action for divorce…the court may in its discretion require either party to pay counsel fees…to the attorney of the other party 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. In any such action or proceeding, applications for fees and expenses may be maintained by the attorney for the respective parties in counsel’s own name and in counsel’s own behalf…Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their representative attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section [emphasis added].
Now, applying the foregoing to the instant application, the Petitioner’s motion must still be denied. The statute is clear that applications must be made prior to the final judgment. Here, the instant motion was filed well after the petition was settled on consent. It is noteworthy that at no time during any settlement conferences did Petitioner’s counsel express an intent to seek an award of counsel fees by motion nor did counsel explicitly preserve her right to seek such fees. Though the retainer annexed to the moving papers includes seeking reimbursement for legal fees within the description of services to be rendered, same does not constitute an affirmative preservation of the right to seek fees. Next, the statute also explicitly requires that an application for counsel fees include an affidavit from the parties and their respective counsel outlining, inter alia, the amount of the retainer and the hourly rate to be charged by the attorney. No such affidavit was filed with the Petitioner’s motion and attaching a retainer agreement is insufficient.
To take the analysis one step even further, it is well-settled that the Family Court has the authority to award counsel fees in a custody proceeding, when warranted under the particular circumstances of the case (see, Domestic Relations Law §237[b]; Family Ct. Act §651[b]; Luo v. Yang, 104 A.D.3d 852 [2nd Dept. 2013]), having regard for the complexities of the case, the relative merits of the parties’ positions, as well as the parties’ respective financial positions (see, DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881; Catto v. Howell, 144 A.D.3d 1146 [2nd Dept. 2016]; Liebenstein v. Irani 125 A.D. 3d 970 [2nd Dept. 2015]). Here, this matter was not protracted, a trial was not conducted, and the actual time spent resolving this matter on consent was reasonable in view of the nature of the proceedings. Further, both the record and the instant motion are devoid of any documentation to support the Petitioner’s contention that he cannot afford to pay his own legal fees. Although Petitioner’s counsel claims that she performed “numerous hours of legal work”, her barebones statement is completely unsupported by any billing/time statements, a detailed affirmation of services.
Now, therefore, after having thoroughly read and considered the papers submitted by the parties relative to the instant motion, and after thoughtful consideration of the circumstances of this case, this Court, as within its discretion and for all the reasons set forth herein above, finds that an award of counsel fees would be unjust and inappropriate (see, Sawyer v. Yuan, 95 A.D.3d 1133 [2nd Dept. 2012], Detouche v. Shepherd, 42 A.D.3d 453 [2nd Dept. 2007], Pane v. Pane, 26 A.D.3d 386 [2nd Dept. 2006]), as the record is devoid of any legal or factual basis for such an award. “