Enforcing Counsel Fee, Support and Distributive Awards by Execution of Judgment

Occasionally, we come across a decision awarding counsel fees to a spouse, which directs that if the counsel fee awarded is not paid, a money judgment can be entered for that amount upon the submission of an affirmation of nonpayment. In Darby v. Darby, 35 Misc.3d 1235(A) (Sup. Ct. 2012), the court directed that “'if the counsel fees are not paid within the specified time, the Office of the County Clerk may enter a money judgment in favor of the wife's counsel in the sum of $7,500.00, plus costs and statutory interest, upon Affirmation of non-compliance and on ten (10) days written notice to the husband and to the husband's counsel by certified mail.” In S.B., v. G.B., 33 Misc.3d 1212(A) (Sup. Ct. 2011), the court ordered that “if the counsel fees are not paid by the dates set forth above, the Clerk is directed to enter a money judgment in favor of counsel upon counsel's written affirmation. No further notice to the Husband shall be required.”

These provisions in an order are an incentive to the obligor spouse to make prompt payment—but are they authorized by law?

CPLR 2222 provides that at the request of any party the clerk shall docket as a judgment an order directing the payment of money, including motion costs. Once docketed, interest starts to run at 9% and the enforcement remedies in CPLR Article 52 become available. As we shall see, CPLR 2222 may not be utilized to docket a judgment for arrears of maintenance, child support, counsel fees and equitable distribution in a matrimonial action.