Upon the following papers read on the motion, to wit: 1. Plaintiff’s Order to Show Cause; 2. Affidavit and Affirmation in Opposition; and 3. Affirmation in Reply. DECISION & ORDER BACKGROUND Before reaching the merits of the Plaintiff’s application, the background and procedural history warrants discussion and is relevant to the Court’s analysis and decision on the instant application. The parties were married on March 8, 2014. There are two (2) children of the marriage, to wit: P.C., born July 27, 2013; and J.C., born September 14, 2017. The Plaintiff (“Wife”) is currently unemployed, and the Defendant (“Husband”) is an electrician with the Local 3 Union. The Wife has been sporadically employed throughout the parties’ marriage as a bartender/waitress and has claimed on several occasions throughout this litigation (including on her direct and cross examinations during the custody trial) that the Husband did not want her to work outside of the home after the birth of their first child. Prior to the commencement of the instant proceeding, each party filed Family Offense Petitions against the other and obtained Orders of Protection in Family Court. Additionally, there were criminal charges filed on or about November 2018 against the Husband in First District Court, Suffolk County based upon Wife’s complaint which involved an allegation of sexual misconduct. Subsequent thereto, contempt charges were filed against Husband on or about October 2019 for allegedly violating Wife’s Order of Protection. To provide a brief backdrop of this litigation: December 3, 2018: Plaintiff filed Motion Sequence 1 for certain pendente lite relief; December 14, 2018: The parties appeared for the Preliminary Conference and much of motion sequence 1 was resolved by a Temporary So-Ordered Stipulation dated December 14, 2018; December 14, 2018: The Court appointed Domenik Veraldi, Jr., Esq. as Attorney for the Children. Defendant was directed to pay 100 percent of Mr. Veraldi’s fees at the rate of $350.00 per hour subject to reallocation; January 2019 — February 2019: Several allegations were made by both parties against the other as it related to the parties’ children triggering investigations by Child Protective Services. The Court bifurcated the issue of custody, and the custody trial was scheduled to commence in April 2019; March 5, 2019: The Court rendered its decision on Motion Sequence 1 and Plaintiff counsel fees1 in the amount of $7,500.00; April 30, 2019: Prior to the commencement of the scheduled custody trial, Plaintiff’s then private counsel moved to be relieved. Plaintiff did not oppose their application because she could no longer afford to pay for private counsel; April 30, 2019: Due to the exigent nature of the custody issues, the necessity for the commencement of the custody trial and after the examination of the Plaintiff’s individual financial circumstances only, the Court appointed Plaintiff’s current attorney, Karyn A. Villar, Esq., pursuant to Judiciary Law §35(8); and June 7, 2019: The custody trial commenced. Since the commencement of the custody trial, there have been approximately 20 trial days. The Plaintiff has marked 12 exhibits and 10 exhibits are in evidence. The Defendant has marked 102 exhibits and approximately 31 exhibits are in evidence. Notably, on or about November 6, 2019, the Attorney for the Children filed neglect petitions, pursuant to Article 10 of the Family Court Act, against both parties. The Court consolidated the neglect proceedings with the custody trial and a temporary removal hearing was held.2 Clearly, and to reiterate a statement from this Court’s March 5, 2019 Decision and Order, to say that the instant litigation is acrimonious would be an understatement. Currently before this Court is Plaintiff’s appointed counsel’s application which seeks, inter alia, for her appointment and payment pursuant to Judiciary Law §§35(8) and (3), respectively, be converted to a private pay hourly rate and that such payment be paid by the Defendant. The issue before the Court is a novel one and, seemingly, one of first impression. COUNSEL FEES Judiciary Law §35 (8) As stated, supra, Ms. Villar was appointed pursuant to Judiciary §35 (8), which states in relevant part: “8. Whenever supreme court shall exercise jurisdiction over a matter which the family court might have exercised jurisdiction…and under circumstances…such court would be required by section two hundred sixty-two of the family court act to appoint counsel, supreme court shall also appoint counsel and such counsel shall be compensated in accordance with the provisions of this section.” Ms. Villar’s appointment and representation was limited in scope to the custody and parenting issues of this matter. See Fam. Ct. Act §262(a)(v). Notably, the aforesaid subsection of the Judiciary Law was not included until August 16, 2006 and the purpose of same was to ensure that indigent litigants were provided counsel in the same manner as the Family Court. 2006 N.Y. Laws 8096, Ch. 538. As the subsection states, “…counsel shall be compensated in accordance with the provisions of this section.” Judiciary Law §35(8). Therefore, the provisions of Judiciary Law §35(3) apply. Judiciary Law §35 (3) Judiciary Law §35 (3) states the following in relevant part: “…Whenever it appears that such person is financially able to obtain counsel or make partial payment for the representation, counsel may report this fact to the court and the court may terminate the assignment or authorize payment, as the interests of justice may dictate, to such counsel. Counsel assigned hereunder shall at the conclusion of the representation receive compensation at a rate of seventy-five dollars per hour for time expended in court, and seventy-five dollars per hour for time reasonably expended out of court, and shall receive reimbursement for expenses reasonably incurred. For representation upon a hearing, compensation and reimbursement shall be fixed by the court wherein the hearing was held and such compensation shall not exceed four thousand four hundred dollars…In extraordinary circumstances the court may provide for compensation in excess of the foregoing limits.” In Plovnick v. Klinger, 10 A.D.3d 84 (2d Dept. 2004). Judiciary Law §35 (3) was examined in great detail, and the analysis of same requires discussion herein. In Plovnick, the Law Guardian (now known as Attorney for the Child) made an application to the Family Court requesting that the Father pay his fees at the rate of $150.00 per hour as opposed to him being compensated from public funds. The Family Court granted the Law Guardian’s application and the appeal ensued. Plovnick, 10 A.D.3d at 87. The Law Guardian argued that Judiciary Law §35 (3) “permitted the court, in the interest of justice, to require a litigant who was not indigent to pay reasonable fees to a law guardian assigned to represent his or her child.” Id. In further support of his argument, the Law Guardian argued that the Father had sufficient means to pay his fees. Id. “In opposition, the father argued that a law guardian appointed in Family Court was required to be compensated in accordance with Judiciary Law §35(3), and maintained that this provision solely authorized payment to be paid from public funds at a rate which was then $40 per hour for time expended in court, and $25 per hour for time expended out of court.” Id. The Second Department opined as follows: “Judiciary Law §35 governs the ‘assignment of counsel to indigent persons,’ and subdivision three…establishes the terms of compensation for assigned counsel…Although the focus of subdivision three is clearly upon the compensation of assigned counsel for indigent litigants from public funds, it also provides that whenever it appears that the person who has been assigned counsel ‘is financially able to obtain counsel or make partial payment for the representation, counsel may report this fact to the court and the court may terminate the assignment or authorize payment, as the interests of justice may dictate.’ Thus, Judiciary Law §35(3) allows the court to utilize an alternative method to compensate attorneys who have been assigned to represent individuals with the financial ability to retain counsel…Family Court Act §245(c) specifies that law guardians are to be compensated in accordance with Judiciary Law §35(3). We are thus persuaded that the alternative method for compensation of attorneys permitted by Judiciary Law §35(3) vests the Family Court with authority to require litigants, who are financially able to do so, to make full or partial payment of fees to the law guardians assigned to represent their children in custody proceedings. While the ability to assign counsel, who can be compensated from public funds helps ensure that independent advocates are available to children in emotionally charged custody disputes, the interests of justice do not dictate that payment must, in all cases, be made from public funds. Indeed, it has been observed that ‘[t]o provide publicly funded legal representation to individuals with an ability to afford their own counsel makes no sense’. Thus, where the interests of justice so dictate, the Family Court, pursuant to Judiciary Law §35(3), may direct that a parent who has sufficient financial means to do so pay some or all of the law guardian’s fees.” Plovnick, 10 A.D.3d at 88-89, 781 N.Y.S.2d 360, 364 (2004) (internal citation omitted) (emphasis supplied). In the instant matter as detailed above, on April 30, 2019, when the custody trial was already scheduled to commence, the Plaintiff’s then privately retained counsel moved to be relieved. This Court was placed in an extremely difficult position as it related to Plaintiff’s representation because of the exigent nature of the custody issues3. The Court, familiar with the Plaintiff’s individual finances, was able to secure an experienced attorney who graciously agreed to accept assignment despite the fact that a contested custody trial was looming. See Exhibit A to Plaintiff’s application. In support of her application, Plaintiff’s counsel submits that upon her appointment, she believed the matter would be simple custody hearing. However, when she appeared on the first day of trial, she was handed two (2) four-inch binders with pre-marked exhibits and a flash drive full of videos, audios and hundreds of messages; Defendant’s exhibits were pre-marked into quadruple letters. She further states that, as of the date of her application there have been approximately 18 trial days and numerous court conferences. Plaintiff’s counsel further submits that the case has “taken on a life of its own” and that she has logged 120 hours of billable time to the detriment of her law firm4. Plaintiff further submits that the Defendant’s parents are paying his legal fees, which currently amount to over $110,000.00, and he will litigate this case to the bitter end while Plaintiff’s counsel’s fees are capped at $4,400.00. See Judiciary Law §35(3). Plaintiff’s counsel further posits that the burden should not be placed on the New York State taxpayers to pay her fees when there is sufficient income to pay counsel. Notably, the Defendant is represented by private counsel (at the rate of $395.00 per hour) and the Attorney for the Children is also paid privately (at the rate of $350.00 per hour); both are paid by the Defendant and/or his family. In opposition, Defendant argues that while he is the monied spouse, he cannot afford to pay Plaintiff’s legal fees. Defendant states the has incurred, and paid, over $110,575.00 for his own counsel and in addition, he owes the Attorney for the Children nearly $17,000.00 (and has paid approximately $8,500.00 already); and he has paid $7,500.00 for a forensic psychologist and is expected to pay an additional $12,000.00 for the forensic psychologist’s expert testimony at trial. Defendant further argues that he pays all of the children’s expenses, provides $1,000.00 per month in child support to Plaintiff and pays the household carrying charges. In sum, the Defendant states that he is no longer in a position to pay his attorney5, let alone Plaintiff’s attorney. Defendant’s counsel posits that Plaintiff’s counsel should have known when she took the appointment that the case involved extensive litigation based upon a statement in this Court’s March 5, 2019 Decision and Order, to wit: “To say that the instant litigation is acrimonious would be an understatement…” Defendant’s counsel further contends that Plaintiff’s counsel accepted this case in the capacity of an “18B” attorney and there is “no provision under the current 18B mandate to award an attorney private pay at his or her regularly hourly rate after he or she accepted an assignment in the capacity of an 18B attorney.” In further opposition, Defendant’s counsel indicates that awarding an 18B attorney private pay fees “would circumvent the legislative intention behind the Judiciary Law and County Law…” Before reaching its analysis, the Court must note that it has become increasingly difficult to find attorneys willing to accept appointments pursuant to Judiciary Law §35(8). Moreover, there are only a handful attorneys on that panel at present. The Court is cognizant of the various challenges encountered when seeking attorneys willing to join the panel. This Decision balances those challenges with the resources available to the parties and also comports with the monied spouse analysis and payment of counsel fees under the Domestic Relations Law. See e.g. Dom. Rel. §237. The State is under a fundamental obligation to provide adequate counsel for an individual who is unable to afford an attorney. In re Dutchess Cty. Dep’t of Soc. Serv. ex rel. Anthony S., 187 Misc. 2d 348, 351 (Fam. Ct. Dutchess Cty. 2001). Moreover, it is acknowledged that attorneys undertaking the representation of indigents understand that their fees will be lower and some financial sacrifice will be involved. Id. However, trained and experienced attorneys, as the attorneys are involved in this matter, cannot be compelled to work at rates which are far less than those established for other professionals who provide similar services to this Court. See id. Importantly, the burden should not be on the public to pay for said services when there are funds available to pay for same. Further, there is no basis for non-indigent private parties, like the Defendant, to have their litigation subsidized at bargain rates and paid by the public purse. C.E. v. P.E., 177 Misc. 2d 272, 275 (Sup. Ct. Bronx Cty. 1998). Here, the Defendant has demonstrated the ability to retain experienced private counsel for himself and pay for the expertise of the Attorney for the Children to protect the children’s rights; Defendant is also prepared to pay another $12,000.00 for a forensic psychiatrist to testify6. Therefore, Plaintiff’s counsel should be entitled to be paid for the reasonable value of her services. See id. This Court, having sat through approximately 20 days of trial, has heard testimony regarding the parties’ finances and is thoroughly familiar with same. Further, from the instant submissions, this Court is aware that Defendant’s family is funding this litigation. See e.g. Lugo v. Torres, 174 A.D.3d 594, 595 (2d Dept. 2019)7. The Court also agrees that this case has taken on a life of its own and is one of the most contentious custody cases it has heard to date. The Court has already determined that Husband is the monied spouse which is the law of the case. See Decision and Order dated March 5, 2019 (Joseph, J.). Therefore, similar to the father in Plovnick, supra, Defendant is financially able to pay for Plaintiff’s representation. Moreover, the interest of justice dictate that Defendant should pay for Plaintiff’s counsel fees. See also Judiciary Law §35(3). As an aside, Defendant’s counsel incorrectly refers to Ms. Villar’s appointment as “18B”. Ms. Villar was appointed pursuant to Judiciary Law §35(8), not County Law Article 18-B. Regardless, awarding the Plaintiff counsel fees does not circumvent the legislative intent behind the Judiciary Law, but promotes it. See e.g. Judiciary Law §35(3). Further, Defendant grossly misunderstands the purpose and intent behind Judiciary Law §§35 (3) and (8) whereby rendering his argument in opposition devoid of merit. This Court further finds authority requiring Defendant to pay Plaintiff’s legal expenses stemming from his statutory duty her to provide support, which also encompasses a duty to provide necessaries. See e.g. Fam. Ct. Act §412; see also e.g. Plovnick, 10 A.D.3d at 90. The Court notes that while Plovnick, supra, addressed fees for the Attorney for the Child, at the time of the decision, Judiciary Law §35(8) was not yet enacted. However, the Court draws the conclusion that the same principles apply to appointments made pursuant to Judiciary Law §35(8). In addition to the statutory and case law authority in support of this Decision and Order directing the Defendant to pay the Plaintiff’s attorneys fees, same is also supported by a strong public policy argument. There is a similar public policy argument made when Suffolk County and/or New York State seeks reimbursement from a financially able spouse when the indigent spouse is in receipt of public assistance. Specifically, the limited resources of the State dictate that a monied spouse should support their spouse. See e.g. Soc. Serv. Law §101. Clearly, the public purse cannot be used when there is an ability to pay; this is especially true given the current deficit New York State is facing due to, inter alia, the current COVID-19 pandemic.8 The Court may also direct a party to pay counsel fees “directly to the attorney of the other spouse 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.” See Dom. Rel. Law §237(a) (emphasis supplied). It is well settled that an award of interim counsel fees is within the sound discretion of the court. The issue of counsel fees is also controlled by the equities and circumstances of each case. See Nicodemus v. Nicodemus, 98 A.D.3d 604 (2d Dept. 2012). Importantly, “…the Court of Appeals and Appellate Division have repeatedly articulated the importance of awarding interim counsel fees to the parties in contested matrimonial and custody litigation.” T.K. v. D.K., 61 Misc. 3d 311, 317 (Sup. Ct. Nassau Cty. 2018). Additionally, an award of interim counsel fees is warranted where there is a significant disparity in the financial circumstances of the parties. See Prichep v. Prichep, 52 A.D.3d 61 (2d Dept. 2008). However, with requests for “an interim award of counsel fees, as opposed to a final award, no such detailed inquiry is warranted.” Id. at 64-66. Interim fees will ensure that the non-monied spouse will be able to litigate on equal footing with the monied spouse to prohibit the monied spouse “from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation.” Id. This Court is not empowered to appoint private counsel for an indigent litigant, but here the Plaintiff submits that she wishes for Ms. Villar to represent her in all issues in this case. Therefore, the counsel fees awarded herein shall be for all issues in connection with the instant matrimonial proceeding, including the financial aspects of this case. This Court finds that the Defendant has the financial means to pay the Plaintiff’s counsel fees and in the interest of justice, the burden to pay for same should not be placed on the public. Accordingly, the April 30, 2019 Order appointing Karyn A. Villar, Esq. is vacated nunc pro tunc and her representation of Plaintiff is now private in nature at the rate of $350.00 per hour whereby the Defendant shall pay as directed herein, subject to reallocation. See Plovnick, 10 A.D.3d at 91 (finding that the court may establish a reasonable hourly fee which exceeds the statutory rates set forth for the representation of indigent parties in Judiciary Law §35(3)). Plovnick, 10 A.D.3d at 91. In determining the counsel fee award herein, the Court has also considered the circumstances of this case, including but not limited to the $7,500.00 previously awarded to Plaintiff’s prior counsel. Accordingly, the Plaintiff is awarded the sum of $65,000.00 in interim counsel fees and the Defendant is directed to pay same directly to the Plaintiff’s counsel’s office, as follows: $30,000.00 within sixty (60) days from the date of this Order; $10,000.00 within ninety (90) days from the date of this Order; $10,000.00 within one-hundred twenty (120) days from the date of this Order; and $15,000.00 within one-hundred fifty (150) days from the date of this Order. Plaintiff is granted leave to apply for additional fees should same be warranted. See e.g. Brody v. Brody, 137 A.D.3d 832, 27 N.Y.S.3d 190 (2d Dept. 2016) (the non-monied spouse is not prohibited from filing more than one application for interim counsel fees). Furthermore, if the Plaintiff is not in compliance, upon the submission of an Affirmation of non-compliance, the Clerk of the County of Suffolk is hereby directed to enter and docket a money judgment in favor of Karyn A. Villar, P.L.L.C. and against the Defendant, Paul Cozzi, for such amount and Karyn A. Villar, P.L.L.C. shall have execution therefor. Accordingly, it is hereby ORDERED that this Court’s April 30, 2019 Order appointing Karyn A. Villar, Esq. pursuant to Judiciary Law §35(8) is vacated, nunc pro tunc, and her representation of Plaintiff is now private in nature at the rate of $350.00 per hour and Defendant shall pay for same as directed herein, subject to reallocation; and it is further ORDERED that Karyn A. Villar, P.L.L.C. is directed to file with the Court an updated retainer agreement in accordance with this Decision and Order within thirty (30) days from the date hereof; and it is further ORDERED that the Defendant shall pay directly to the Plaintiff’s counsel, Karyn A. Villar, PLLC with offices located at 1600 Express Drive South, Suite 116, Hauppauge, New York 11788 the sum of $65,000.00 as and for interim counsel fees as follows: $30,000.00 within sixty (60) days from the date of this Order; $10,000.00 within ninety (90) days from the date of this Order; $10,000.00 within one-hundred twenty (120) days from the date of this Order; and $15,000.00 within one-hundred fifty (150) days from the date of this Order; and it is further ORDERED that the Plaintiff is granted leave to apply for additional fees should same be warranted; and it is further ORDERED that if the Defendant is not in compliance with the counsel fee payment, upon the submission of an Affirmation of Non-Payment, the Clerk of the County of Suffolk is hereby directed to enter and docket a money judgment in favor of Karyn A. Villar, PLLC and against the Defendant, Paul J. Cozzi, for such amount and Karyn A. Villar, PLLC shall have execution therefor; and it is further ORDERED that a copy of this Decision and Order shall be deemed an original for purposes of filing with the Suffolk County Clerk. The foregoing constitutes the Decision and Order of this Court. Dated: May 13, 2020
