Greco v Greco
2018 NY Slip Op 03509
May 16, 2018
Decision
This case was for a divorce and ancillary relief. The plaintiff filed this appeal from a decision form Nassau County Family Court dated 3/31/15. The order granted the defendant’s motion for $70,000 in attorney’s fees.
It was ordered that the existing order be changed to delete the portion of the order which awarded counsel fees of $70,000 to counsel, as well as $12,700 in expert witness fees to the defendant.
The parties were married in 1999 and have two children. A petition was filed in 2010. The plaintiff was awarded full custody of the children. A trial was later held regarding financial issues. At the end of this trial, the plaintiff moved the payment of attorney and witness fees. The court granted $70,000 to L.G., $37,500 to J.G. and witness fees of $12,700 to the defendant. The plaintiff appeals the decision.
The court said that in a divorce action, it is within the sole discretion of the court to award attorney fees (Montoya v Montoya 143 AD3d 865). The court, however, imposes certain requirements on counsel who represent clients in domestic cases (22 NYCRR part 1400). These requirements are in place to prevent abuses and keep the public safe. Failure to comply with these rules will prevent recovery of attorney’s fees (Hovanec v Hovanec 79 AD3d 8116, Montoya v Montoya 143 AD3d 865), from his or her client or a disgruntled spouse. It must be proven that there has been substantial compliance with these rules and it needs to be set forth in the moving party’s paperwork (Gottlieb v Gottlieb 101 AD3d 678).
In this case, the evidence provided by the defendant fails to comply with these specifications and did not show periodic billing statements every 60 days (22 NYCRR 1400.2, 1400.3[9], Gahagan v Gahagan 51 AD3d 863, Rosado v Rosado 100 AD3d 856). The Supreme Court erred in granting attorney fees for L.G. The other lawyer JG however, did comply with the rules (Matter of Felix v Felix 110 AD3d 805, 806).
The court said that the award of witness fees in a divorce action is up to the discretion of the court and should be awarded with the showing of the services rendered and the time involved. The Supreme Court lacked a sufficient basis to grant a motion for fees.
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