Ader v. Ader

205 A.D.3d 637

170 N.Y.S.3d 22

Julie ADER, Plaintiff–Respondent,

v.Jason ADER, Defendant–Appellant.

16059

Index No. 350006/20

Case No. 2021-03062

Supreme Court, Appellate Division, First Department, New York.

ENTERED May 31, 2022

Judd Burstein, P.C., New York (Judd Burstein of counsel), for appellant.

Michele A. Katz, PLLC, New York (Michele A. Katz of counsel) and Buchanan Ingersoll and Rooney PC, New York (Stuart P. Slotnick of counsel), for respondent.

Acosta, P.J., Renwick, Singh, Moulton, Kennedy, JJ.

Order, Supreme Court, New York County (Michael L. Katz, J.), entered on or about July 9, 2021, insofar as it awarded plaintiff wife, pendente lite, custody-related counsel fees totaling $600,000, unanimously affirmed, without costs.

As reflected in the legal bills at issue and counsel's description of the work to be done imminently, a significant portion of legal fees were incurred and will be incurred in connection with specific custody-related matters not addressed in the parties’ prenuptial agreement, and that could not even have been contemplated by the parties when they executed the agreement, before the first of their four children was born. These include disputes over visitation and parenting time, efforts to resolve such disputes via stipulation, matters concerning the Attorney for the Children and appointed forensics, therapy issues and communications with the children's pediatrician, parenting issues arising from the COVID pandemic, issues surrounding one child's graduation, and disputes concerning the children's activities such as tennis lessons and art classes. The agreement did not address these matters, and thus the counsel fee waiver does not apply (see e.g. Gottlieb v. Gottlieb, 138 A.D.3d 30, 48, 25 N.Y.S.3d 90 [1st Dept. 2016], lv dismissed 27 N.Y.3d 1125, 36 N.Y.S.3d 880, 57 N.E.3d 73 [2016] ; Vinik v. Lee, 96 A.D.3d 522, 523, 947 N.Y.S.2d 424 [1st Dept. 2012] ).

The agreement's inclusion of certain terms concerning custody and child support does not alter our analysis. Even the husband takes the position that the agreement "did not purport to predetermine custody or child support" and that the parties were "free to litigate" such matters. He cannot acknowledge these matters were not fully resolved by the agreement while simultaneously arguing the wife is barred from seeking legal fees to litigate them. Such an inconsistent approach, particularly given the financial disparity between the parties here (an issue that does not vanish, as the husband suggests, with his $5 million payment to her, see e.g. Matter of Dean E.H. v. Deborah. R., 181 A.D.3d 536, 119 N.Y.S.3d 741 [1st Dept. 2020] ), runs directly afoul of the underlying policy of Domestic Relations Law § 237 (see also Kessler v. Kessler, 33 A.D.3d 42, 47, 818 N.Y.S.2d 571 [2d Dept. 2006], lv dismissed 8 N.Y.3d 968, 836 N.Y.S.2d 540, 868 N.E.2d 221 [2007] ).

The husband's 22 NYCRR 1400.3 arguments are unavailing, as the retainer agreements at issue substantially complied with the statute ( Flanagan v. Flanagan, 267 A.D.2d 80, 699 N.Y.S.2d 406 [1st Dept. 1999] ). He tries to cast doubt on the wife's contention that the 2013 BIPC retainer letter's reference to post-divorce judgment work was a typographical error. Yet the very next sentence of the letter states the retainer "does not apply to any appeals or post-judgment actions or proceedings" and, in describing the forthcoming billing, refers, by way of example to such pre-judgment matters as a court appearance in connection with the pendente lite motion. The 2020 BIPC retainer letter, moreover, states the firm will "continue" to represent the wife in the divorce proceedings at issue here. His claim that the letter must have been executed in...