Maria B. v. Joseph F.

26 Family Law Review 2 (June 1994) p.26

We represented: Petitioner

Gloria Sosa-Lintner, J.

DECISION and ORDER Pursuant to Family Court Act § 536, Petitioner, the prevailing party in this paternity proceeding, moves for an order directing Respondent to pay all or, in the alternative, a portion of her counsel fees. The motion was submitted to Hearing Examiner II and was then referred to this Court. The parties have stipulated through counsel that the motion shall be decided on the papers and waive any hearing on the motion.

PROCEDURAL HISTORY

The petition for paternity was filed on October 30, 1991. On December 4, 1991, Respondent entered a denial of paternity and upon his request, an order for Human Leukocyte Antigen (HLA) testing was granted. Although the results of the HLA test indicated the probability of paternity to be 99.57 percent, on February 21, 1992, Respondent requested a hearing pursuant to Family Court adjournments. The trial was commenced on Monday, September 21, 1992 and continued daily through Monday, September 28, 1992. On November 24, 1992, an order of filiation was entered under Article 5 of the Family Court Act declaring Respondent to be the father of Petitioner's out-of-wedlock child. Subsequently, on June 14, 1993, and upon consent of the parties, a final order of child support was entered. That order directed Respondent to pay Petitioner $550.00 per month, effective July 1, 1993 until November 1, 1998. It also directed Respondent to provide life insurance up until the child's twenty-first birthday on August 9, 1996. The only remaining issue is whether the Court shall order counsel fees to the prevailing party.

PENDING MOTION REGARDING COUNSEL FEES

Petitioner argues that due to her financial circumstances she is unable to pay her counsel fees. and seeks an order directing Respondent to pay all or, in the alternative, a portion of her legal fees. In Petitioner's affidavit dated January 25, 1993, and at the June 14, 1993 hearing before the Hearing Examiner, Petitioner testified that she is currently unemployed and that the only income she is receiving is $300.00 per week unemployment compensation and $90.00 per week from her husband for food. Petitioner also testified that the child has cerebral palsy and requires many extra expenses. At the June 14, 1993 hearing, the parties consented to a final order of child support in the amount of $550.00 per month effective July 1, 1993. It was also stipulated by the parties that Petitioner has taken efforts to seek employment since her move to Florida in the summer of 1992.

Petitioner's attorney submitted an affirmation in which she affirms that Petitioner has only tendered the amount of $1,000.00, which is the amount of the retainer, and an additional $250.00. Petitioner's attorney affirms that Petitioner has a balance due in the amount of $34,890.74 for counsel fees. Attached to the affirmation are copies of the retainer and the Petitioner's bills for counsel fees.

Respondent seeks denial of Petitioner's motion for multiple reasons. He initially argued that Petitioner has failed to prove that she is unable to pay her legal fees. Respondent argues that at the time Petitioner hired and paid her counsel the $1,000.00 retainer fee, Petitioner was employed and earning approximately $35,000.00 per year as reflected in her 1991 W-2 Wage and Tax Statement. Respondent also argues that Petitioner's application must fail due to the lack of information regarding Petitioner's current financial situation. Respondent further contends that it is unclear as to what agreement Petitioner and her attorney had regarding the payment of counsel fees and, more importantly, that the counsel fees sought by the Petitioner are excessive. Respondent particularly questions Petitioner's counsel's transit-to-court costs, monies spent on process service, amounts charged to prepare Petitioner's counsel bills, the number of attorneys and support staff involved in the action, and the hours charged for time spent in court. Respondent also claims that Petitioner has more money available to her than the Respondent and contends that he is unable to pay his own counsel fees. At the June 14, 1993 hearing, Respondent testified to an income of $50,000.00 per year and that his wife pays him $450.00 per month child support for his teenage daughter who is in his custody. Respondent also testified to having a large debt and has submitted a list of his debts totaling in excess of $230,000.00, which includes the mortgages on the house he is living in and the co-op apartment he is renting to a third party. In his affidavit dated August 10, 1993 Respondent testified that his financial status has not varied substantially. Respondent concludes that Petitioner's application should be denied in full.

FINDINGS OF FACT & CONCLUSIONS OF LAW

Section 536 of the Family Court Act provides in pertinent part: "Once an order of filiation is made, the court in its discretion may allow counsel fees to the attorney for the prevailing party, if he or she is unable to pay such counsel fees." Since an order of filiation was entered in the instant action, this Court is statutorily empowered to award counsel fees. (Pfeiffer v. Byrne, 53 N.Y.2d 1021 (1981).)

A. Ability to Pay Counsel Fees

Before awarding any counsel fees, however, the Court must determine whether Petitioner, the prevailing party, is able to pay for such counsel fees as Respondent alleges in his opposition papers. The record discloses that although at the initiation of this proceeding Petitioner was employed and earning approximately $35,000.00 per year, Petitioner was earning substantially less than Respondent. Additionally, Petitioner is presently unemployed and receiving $300.00 per week unemployment compensation, $90.00 per week from her husband and $550.00 per month child support as a result of this proceeding. The record also reflects that due to the child's special needs, Petitioner has substantial expenses. The record further reflects that on October 15, 1991, Petitioner paid her attorney a retainer in the amount of $1,000.00 and although not reflected in the submitted bills, Petitioner's counsel testifies in her affirmation that an additional payment of $250.00 has been made by the Petitioner. Upon consideration of the above factors, the Court finds that Petitioner is unable to pay her counsel's fees in their entirety at the present time and is unlikely to pay them in the future. Respondent's objection to the lack of current financial information available as to Petitioner is meritless. All financial statements were submitted in a timely manner and the fact that they are currently several months out-of-date is a result of the fact that counsel only stipulated on December 15, 1993 to waiving a hearing on the issue of counsel fees. Consequently, the Court now directs Respondent to pay a portion of Petitioner's counsel fees, the amount of which will be discussed below.

B. Amount of Fees to be Awarded

To determine the amount of counsel fees to be awarded, this Court is guided by the criteria enumerated by the Appellate Division, First Department. This Court will give consideration to the nature, extent and quality of the services rendered and the financial capacities of the parties. (Pamela P. v. Frank S., 91 A.D.2d 527 (1st Dept. 1982).)

The instant action has been a fiercely contested action covering approximately two years of litigation. Although the HLA test indicated a high probability of paternity, Respondent requested a hearing which continued daily for one week. Additionally, counsel was involved in numerous other motions, depositions, court appearances, conferences, memoranda of law and a support hearing that was finally resolved by consent some twenty months after the filing of the paternity petition. This Court has had an ample opportunity to observe the nature, extent and quality of the services rendered by Petitioner's attorney. In its paternity decision, this Court found that Petitioner had met her burden of proof by clear and convincing evidence and that Petitioner almost met the higher standard of beyond a reasonable doubt. There can be no question as to the high quality of services provided by Petitioner's counsel.

In considering the nature of the services rendered, the Court must note that Respondent sought the paternity hearing after the HLA test indicated a 99.57 percent probability of paternity. By the date the HLA tests were made available to the Court, Petitioner's legal fees were only $4,308.31 (less the $1,000.00 retainer she had already paid). It was the extensive paternity hearing requested by the Respondent after the HLA tests were done that resulted in Petitioner's rather large legal fees. While the Court acknowledges Respondent's right to a paternity hearing, the Court is concerned when such rights are abused.

The Court also notes that depositions were taken of both Petitioner and Respondent on April 8, 1992. By the date of the depositions, Petitioner's unpaid legal fees amounted to only $5,485.56. There can be little doubt that by that date Respondent was well aware of the strength of the case supporting a finding of paternity and equally aware of the weakness of his own defense. Nonetheless, he insisted on a lengthy hearing where he neither called any witnesses beside himself nor successfully impeached any of Petitioner's witnesses. Respondent's entire defense consisted of nothing but his own denial. This simple denial was all he put forward even after being presented with Petitioner's extensive and persuasive case. The Court in its fact-finding decision found Respondent's denial to be "incredible, self-serving and patently tailored … to overcome the very convincing evidence against him." (November 24, 1992 Decision and Order, p.2.) The Court is thus concerned that the Respondent insisted on a hearing, knowing full well that he would not prevail, largely if not solely to inconvenience the Petitioner or perhaps to dissuade her from proceeding at all.

The only other conclusion the Court can draw from the Respondent's insistence on a hearing given the circumstances is that Respondent's counsel was unaware of or directed by his client to proceed despite the law regarding paternity hearings. The Court recalls a robing room conference wherein Respondent's counsel stated that he did not intend to call an expert witness to dispute or rebut the HLA test results (see, Juliana C. v. Louis T., 126 Misc. 731; 483 N.Y.S.2d 920) but would instead submit evidence to prove Petitioner's "propensity for Irish men." Clearly, Respondent's counsel was unaware of or ignored the great weight accorded by courts to the results of HLA tests (see, F.C.A. ? 532; Barber v. Dayls, 120 A.D.2d 364, 502 N.Y.S.2d 19 (N.D.1st Dept. 1986); Bokling on behalf of Morgan v. Coney, 91 A.D.2d 1195; 459 N.Y.S.2d 183 (A.D. 4th Dept. 1983); Department of Social Services v. Kenneth S.N., 120 Misc.2d 453; 466 N.Y.S.2d 147 (Fam. Ct. 1983); Commissioner of Franklin County Department of Social Services v. Clarence 'F', 117 A.D.2d 877; 498 N.Y.S.2d 889 (A.D. 3rd Dept. 1986)) and erroneously believed such evidence could be easily overcome by Respondent's fantastic assertions. Yet, even after vowing to prove Petitioner's "propensity for Irish men", Respondent failed to produce an iota of credible evidence to challenge Petitioner's claim that she was a virgin when she met him much less any evidence that she had a "propensity for Irish men." His defense consisted solely of an incredible allegation that Petitioner previously had sexual relations with priests in Japan and his denial that he had sexual relations with her on the night in question. As mentioned above, and as discussed more fully in the Court's fact-finding decision, the Court has already found Respondent's entire defense meritless.

Additionally, Respondent's counsel submitted a post-trial memorandum of law in which he incorrectly identified the burden of proof in a paternity hearing as "beyond a reasonable doubt" instead of the correct standard of "clear and convincing evidence." Only after Petitioner's counsel submitted her memo, did Respondent's counsel correct this misstatement of law. These two instances, along with Respondent's failure to present any credible evidence whatsoever at trial, lead the Court to believe that either Respondent's counsel had not properly researched the pertinent field of law, or purposely chose to proceed in a dilatory manner despite his understanding of the law. As such, the Court considers Respondent's insistence on a full hearing even after receiving the results of the HLA tests and participating in the oral depositions of April 8, 1992 as frivolous. Although the Court would be within its discretion to sanction Respondent's attorney, as well as to award full costs of the litigation to Petitioner, the Court will only consider the frivolous nature of Respondent's defense in determining counsel fees. (Van Norden v. Schindler, 545 N.Y.S.2d 462 (Qns. Cty. Sup. Ct., 1989).)

In further assessing the nature of the case, the Court also takes into consideration the fact that the Hearing Examiner did not include in the final order of support any provision for retroactive support although authorized to do so by F.C.A. ? 440 and ? 545. By avoiding an order of retroactive support the Respondent has received a monetary windfall, much improving his financial ability to contribute to Petitioner's legal fees. In addition to avoiding an order of retroactive support effective from the date the paternity petition was filed (a savings of $8,250.00 calculated at $550.00 per month), Respondent has reaped the additional financial benefits of failing to support this child for the last eighteen years. In light of the extensive testimony at trial regarding Petitioner's earlier attempts to convince Respondent to acknowledge paternity, the Court finds it impossible to believe that Respondent has not known from the beginning that this child is his son.

The Court also notes Respondent's own financial disclosure form completed by him on January 25, 1993 in which he calculates his statutory child support obligation to be $721.00 per month. By reaching a consent agreement of only $550.00 per month, Respondent has saved himself additional funds. The Court is not impressed with Respondent's statement of financial hardship. For example, although he lists the $1,191.00 per month he pays for his cooperative apartment as a "mandatory, fixed monthly payment," he fails to anywhere list the $10,050.00 rent he receives for that apartment as income. More importantly, his child is entitled to support, regardless of Respondent's poor financial planning and excessive credit and loans. The windfalls to Respondent must stop and equity must eventually prevail in this matter. As such, Respondent will be responsible for at least a part of Petitioner's legal fees.

The Court further discounts Respondent's objections that counsel fees are inappropriate when the nature of the agreement between Petitioner and her counsel "is nothing more than a contingency fee." Petitioner was employed at the time she retained counsel. Her affirmation of January 25, 1993 acknowledges that the will remain liable for any unpaid fees regardless of the Court's decision regarding counsel fees. Her counsel's reference in the retainer letter to recovering fees from Respondent shows only that Petitioner's counsel was knowledgeable of the applicable law from the outset of the case.

Respondent's final objection that Petitioner's counsel fees are excessive will be addressed in subsection C.

Finally, the Court notes that Petitioner has supported her application for counsel fees by the submission of bills and a breakdown of the rates, hours, schedules of the specific services performed and the individuals who rendered such services and the expenses incurred. Petitioner's records correspond with the Court's records of appearances. Petitioner's bills reflect in and out of court services which are mainly reasonable based upon the circumstances of this action

C. Relative Financial Circumstances of the Parties

The Court next considers the relative financial circumstances of the parties. The Petitioner is currently unemployed and has always earned considerably less than Respondent. Although she is unemployed, she is seeking employment. The Respondent is presently employed and has consistently been employed earning well over $50,000.00 per year. Although the Respondent may be experiencing a substantial debt load, it is clear to the Court that based upon his earnings as compared to the Petitioner's he is far better able to afford counsel fees than Petitioner.

The Court is mindful, however, that Petitioner retained counsel and agreed to a fee arrangement knowing that the services requested would be billed at up to $225.00 per hour. At the time of the agreement, Petitioner was employed and earned $35,000.00 per year. Although the prevailing party is entitled to seek reimbursement of legal fees, such reimbursement is by no means guaranteed. As such, Petitioner engaged for services, knowing that she would be responsible for some or all of the final cost. Nonetheless, she failed to make any payments to her counsel during the period of time she was in fact employed other than a single payment of $250.00. The Court cannot now find that she should be excused from responsibility for fees incurred while she was able to pay simply because she chose not to pay them at that time. Although the record is unclear as to exactly when Petitioner stopped working, it appears to be around August, 1992. As stated earlier, however, Respondent will be responsible for all legitimate legal fees incurred after April 8, 1992, the date of the depositions. Accordingly, Petitioner is responsible for all costs incurred prior to that time.

In addition, the Court finds that Petitioner is also responsible for certain expenses it has deemed "unnecessary." While an individual is free to enter into any contract for services he or she chooses, the Court must consider fairness and equity when called on to assign the liabilities of that contract to a third party. For example, while Petitioner may have agreed to pay Attorney Lahn's car fare to and from Court, such an expense is neither necessary nor a legitimate "counsel fee" and therefore is not an expense properly passed on to Respondent. Accordingly, Petitioner is also liable for $1,550.89, which represents Attorney Lahn's travel expenses, less reasonable subway fares.

The Court is also hesitant to pass on to Respondent excessive costs incurred by Petitioner due to her attorney's billing system. It is clear that Petitioner's counsel bills only in fifteen (15) minute increments. While many tasks surely took the entire fifteen minutes, the Court cannot conclude from the bill that every minor task took that long. For example, Petitioner's counsel's bill reveals eleven (11) separate calls to the Court's Attorney at a total cost of $406.25. Although these calls were surely made, the Court is confident that they did not each last for a full fifteen minutes.

The bill also reveals several other dubious charges, such as a telephone call to the client regarding her landlord ($36.25), three separate phone calls to the client over the course of seven days asking her to simply sign the transcript of her deposition ($108.75), three separate phone calls to the same court reporter to order minutes ($108.75), simply reading a letter received from opposing counsel ($36.25), sending three letters by fax ($98.15), and accompanying the client to the blood test ($172.00).

The Court has no way of knowing how much time was actually spent on any single task or how necessary was each task. There is concern, however, that Petitioner's counsel, anticipating an order for Respondent to pay legal fees, was less than diligent in watching the bottom line.

On the other hand, Petitioner's counsel enjoys an excellent reputation in the legal community and was opposed by a most formidable attorney who is also well respected. Success against such an opponent is not easily achieved. The Court can therefore not find counsel fees excessive per se. The Court will not, however, require Respondent to bear the financial burden of the fees enumerated above nor foreclose Petitioner from challenging them in another forum.

Accordingly, Petitioner is responsible for the costs of her counsel up until the time the depositions were taken as well as for the costs of Attorney Lahn's transportation and the highlighted fees noted above, for a total of $7,003.45. Respondent is hereby directed to pay the balance of $27,637.29. Respondent is ordered to pay $300.00 per month directly to Petitioner's counsel until November 1, 1998 when his child support obligations are concluded. Thereafter Respondent shall pay $550.00 per month until the entire debt is satisfied.