The following papers were read on this Motion: Notice of Motion, Affidavit in Support of Motion for Award of Legal Fees, Affirmation in Support of Motion for Award of Legal Fees, Exhibits 1 Affidavit in Opposition, Affirmation in Opposition, Exhibits 2 Affidavit in Reply, Affirmation in Reply, Exhibit 3 DECISION AND ORDER ON MOTION Petitioner, (hereinafter, the “Petitioner”) filed a Notice of Motion, dated December 16, 2020, seeking, inter alia, an award of counsel fees, brought in connection with his Petition for Enforcement/Violation of an Order of Custody/Visitation, dated March 13, 2020 (hereinafter, the “Petition”). Respondent vehemently opposes the motion. RELEVANT PROCEDURAL BACKGROUND The parties’ marriage was dissolved pursuant to a Judgment of Divorce, entered by the Nassau County Clerk on April 21, 2016 (hereinafter, the “Judgment”). Incorporated into, but not merged with the Judgment, is the parties’ Stipulation of Settlement, dated August 19, 2015 (hereinafter, the “Stipulation”). There are two (2) children of the marriage, to wit:, born; and born October 4, 2011 (hereinafter, the “Children”). On March 13, 2020, the Petitioner filed his Petition, alleging that the Respondent denied him “visitation and access to the Children, along with cutting off telephone communication since June 2018.” Relevant to the instant Decision and Order is Article XXX of the Stipulation, headed “Default in Obligations,” which provides, in relevant part: The parties covenant and agree that in the event either party alleges that the other has failed to perform, or there has been a lack of performance, or there has been a breach by the other party, then the party presumptively aggrieved shall notify the other party, in writing by certified mail, return receipt requested, of the default or breach or lack of performance and the other party shall have twenty (20) days after receipt of such written notice, to cure such default, breach or lack of performance. In the event the party fails to cure such default, or otherwise as the case may be, the aggrieved party may, after the expiration of such twenty (20) day period of time, commence such proceedings to enforce his or her rights with respect to any of the terms of this Stipulation or the terms embodied in any decree which may incorporate the terms of this Stipulation. [emphasis added] The parties further covenant and represent to each other that of enforcement proceedings are commenced in Court, the defaulting party shall become liable to the aggrieved party for reasonable attorney’s fees in bringing on such proceedings if the aggrieved party is successful in any Court proceeding and an order of judgment is rendered in his or her favor by reason of the actions of the defaulting party. It is undisputed that the Petitioner never sent a notice of default to the Respondent in compliance with the foregoing. Starting in March of 2020, the New York State Courts were closed, to all but emergency applications, due to the COVD-19 pandemic, and the Petition was ultimately rescheduled to July 23, 2020. On that date, after conference with the parties’ attorneys, the Petitioner was directed to undergo sixty (60) day random drug and alcohol testing. The matter was adjourned to September 16, 2020 for conference, and then for further conference to October 5, 2020. During the proceeding on October 5, 2020, the Petitioner’s court-appointed counsel was relieved in the interest of justice and for reasons set forth on the record. The matter was then adjourned to October 21, 2020 for the Petitioner to appear with his privately retained attorney. On October 21, 2020, the Petitioner’s attorney sought an adjournment, having just received the file “that morning,” at 9:00 am. The matter was accordingly adjourned to November 10, 2020. On November 10, 2020, counsel indicated that the matter was to be settled. The matter was then adjourned to December 10, 2020, on which date, the Petition was ultimately resolved with a final order on consent. On December 10, 2020, the Petitioner filed a Notice of Motion, which was then withdrawn by letter from Petitioner’s Attorney. Thereafter, Petitioner filed the instant motion. THE PARTIES’ ARGUMENTS In support of the instant motion, Petitioner argues that the Respondent prevented him from exercising parenting time with the Children, and that as a result, he was forced to file the Petition. The Petitioner states in his Affidavit that he was forced to hire his own attorney, that he did not have the financial means to retain an attorney, and that he had to borrow money from his girlfriend in order to retain counsel. In support of his request, the Petitioner attaches a copy of an undated text message exchange, purportedly between the Petitioner and the Respondent, in which the Petitioner requests his parenting time (annexed to the Petition as Exhibit “5″). The Petitioner’s counsel argues that counsel fees in this matter are permitted pursuant to D.R.L. ?238, and that an award of legal fees is required here, in the interest of justice, as the filing of the Petition was avoidable, and resulted in a favorable order to the Petitioner. The Petitioner’s Attorney attaches her retainer agreement dated October 6, 2020 and signed by the Petitioner on October 14, 2020. The retainer agreement indicates that the Petitioner will be charged a “flat rate” of $2,800.00 unless the matter proceeds to trial. In opposition, the Respondent argues that the Petitioner’s failure to see the Children is not his “fault”. The Respondent alleges that the Petitioner had been using drugs, and she felt that he needed to take a drug test prior to having contact with the Children. She states that if she had allowed the Petitioner’s parenting time to take place, she would have been under the Court’s scrutiny, and that she was concerned about the Children’s safety. The Respondent further reminds the Court that the Petitioner eventually submitted to court-ordered drug testing, and the results were negative. The Respondent further states that the Petitioner did not have a valid driver’s license during the course of the proceedings, and that the settlement reached between the parties on December 10, 2020 prohibits the Petitioner from driving the Children until his driving privileges are restored. The Respondent’s counsel argues that the Petitioner’s reliance on D.R.L. §238 is misplaced, and that the application should have instead been brought pursuant to F.C.A. §438[a] (Counsel’s argument is legally defective as F.C.A. §438[a] applies in support proceedings, which this is not). Counsel further argues that the application must be denied as defective, as Petitioner has failed to annex any evidence of his financial circumstances, or any proof of the work performed by his counsel; he has failed to submit a single billing statement, nor has the Petitioner’s submitted a financial disclosure affidavit. Furthermore, the retainer agreement between the Petitioner and his counsel fails to set forth the hourly rate for work performed. The Respondent’s Attorney notes that the first motion filed by the Petitioner for counsel fees was withdrawn, because it was defective pursuant to Article XXX of the Stipulation. It is therefore the Respondent’s Attorney’s position that the instant motion is also defective and must be denied for the same reason. In further support of his motion, the Petitioner states in his Affidavit in Reply that the Respondent’s attempts to shift blame for her refusal to allow him to see the Children are despicable, and that he is not a drug abuser. The Petitioner states that he cannot afford to pay his legal fees. The Petitioner’s Attorney has submitted an Affirmation in Reply, wherein she states that she charged a “flat rate” of $2,800.00 through the conclusion of the case. She further states that contrary to the assertions of the Respondent’s Attorney, she performed numerous hours of legal work, including communications with her client, court personnel and counsel, participated in a settlement conference, and drafted and revised a settlement that was later amended to an Order on Consent. The Petitioner’s Attorney states that she graduated from law school in June 1989 and was admitted to practice in the Second Department on February 7, 1990. Her usual hourly rate is $375.00 to $450.00 per hour, but had she charged this fee, it would have exceeded the flat rate of $2,800.00. DECISION AND ORDER It is unrefuted that the Petitioner failed to comply with Article XXX of the Stipulation, which requires proper notice of any alleged default in the parties’ custody arrangement to be sent in writing to the defaulting party, and served by mail, return receipt requested, within twenty (20) days of said default. Though the provision does not set forth an explicit waiver of the right to seek fees under a relevant statute, provisions such as these are aimed at reducing the parties’ need for court intervention thereby limiting their exposure to unnecessary legal fees. While no one can guarantee that a non-compliant party will cure a default, the hope is that they will and that litigation will therefore not be necessary. Generally, “[w]here the parties have agreed to provisions in a settlement agreement which govern the award of attorney’s fees, the agreement’s provisions, rather than statutory provisions, control” (Matter of Berns v. Halberstam, 46 A.D.3d 808, 809, 848 N.Y.S.2d 323 [2007]; accord Matter of Tanenbaum v. Caputo, 81 A.D.3d 839, 839, 916 N.Y.S.2d 811 [2011]; see Gardo v. Radominski, 252 A.D.2d 971, 972, 676 N.Y.S.2d 371 [1998]). “However, a party may seek the recovery of fees under both the statute and an agreement, unless the agreement contains an express waiver of the right to apply under the statute…, [and] provided that the party may not recover twice for the same fees” (Alan D. Scheinkman, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 14, Domestic Relations Law §237 at 19; see generally Millard v. Millard, 246 A.D.2d 349, 350, 667 N.Y.S.2d 714 [1998]; Canick v. Canick, 122 A.D.2d 767, 768-769, 505 N.Y.S.2d 652 [1986]). Where there is no express waiver, a statutory award of counsel fees remains discretionary (see Canick v. Canick, 122 A.D.2d at 769, 505 N.Y.S.2d 652). Notwithstanding his failure to comply with the Stipulation, the Court is compelled to apply D.R.L. §238 given the absence of an express waiver. Domestic Relations Law §238, provides, in relevant part, as follows: In any action or proceeding to enforce or modify any provision of a judgment or order entered in an action for divorce…the court may in its discretion require either party to pay counsel fees…to the attorney of the other party 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. In any such action or proceeding, applications for fees and expenses may be maintained by the attorney for the respective parties in counsel’s own name and in counsel’s own behalf…Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their representative attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section [emphasis added]. Now, applying the foregoing to the instant application, the Petitioner’s motion must still be denied. The statute is clear that applications must be made prior to the final judgment. Here, the instant motion was filed well after the petition was settled on consent. It is noteworthy that at no time during any settlement conferences did Petitioner’s counsel express an intent to seek an award of counsel fees by motion nor did counsel explicitly preserve her right to seek such fees. Though the retainer annexed to the moving papers includes seeking reimbursement for legal fees within the description of services to be rendered, same does not constitute an affirmative preservation of the right to seek fees. Next, the statute also explicitly requires that an application for counsel fees include an affidavit from the parties and their respective counsel outlining, inter alia, the amount of the retainer and the hourly rate to be charged by the attorney. No such affidavit was filed with the Petitioner’s motion and attaching a retainer agreement is insufficient. To take the analysis one step even further, it is well-settled that the Family Court has the authority to award counsel fees in a custody proceeding, when warranted under the particular circumstances of the case (see, Domestic Relations Law §237[b]; Family Ct. Act §651[b]; Luo v. Yang, 104 A.D.3d 852 [2nd Dept. 2013]), having regard for the complexities of the case, the relative merits of the parties’ positions, as well as the parties’ respective financial positions (see, DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881; Catto v. Howell, 144 A.D.3d 1146 [2nd Dept. 2016]; Liebenstein v. Irani 125 A.D. 3d 970 [2nd Dept. 2015]). Here, this matter was not protracted, a trial was not conducted, and the actual time spent resolving this matter on consent was reasonable in view of the nature of the proceedings. Further, both the record and the instant motion are devoid of any documentation to support the Petitioner’s contention that he cannot afford to pay his own legal fees. Although Petitioner’s counsel claims that she performed “numerous hours of legal work”, her barebones statement is completely unsupported by any billing/time statements, a detailed affirmation of services. Now, therefore, after having thoroughly read and considered the papers submitted by the parties relative to the instant motion, and after thoughtful consideration of the circumstances of this case, this Court, as within its discretion and for all the reasons set forth herein above, finds that an award of counsel fees would be unjust and inappropriate (see, Sawyer v. Yuan, 95 A.D.3d 1133 [2nd Dept. 2012], Detouche v. Shepherd, 42 A.D.3d 453 [2nd Dept. 2007], Pane v. Pane, 26 A.D.3d 386 [2nd Dept. 2006]), as the record is devoid of any legal or factual basis for such an award. Accordingly, the instant motion is DENIED. Now, and based upon the foregoing, it is hereby, ORDERED, that the instant Motion filed by the Petitioner is DENIED IN ITS ENTIRETY. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. Order mailed on [specify date(s) and to whom mailed: Dated: March 19, 2021
