DECISION AFTER MOTION FOR ATTORNEYS FEES The parties are divorced and have 5 children together. On February 4, 2021, the mother, M.A.B. (hereinafter “Mother” or “Ms. B”), filed a violation petition against the father, C.A.B. III (hereinafter “Father” or “Mr. B”), alleging that he failed to pay child support as ordered. She sought to enforce Mr. B’s child support obligation as set forth within the parties’ Judgment of Divorce, dated January 6, 2015, which was issued by the Honorable Margaret C. Reilly of the Nassau County Supreme Court, under Index No. 201814/2011, and its attendant Stipulation of Settlement Agreement, dated June 10, 2014. See Judgment of Divorce (Reilly, J., 01/06/15), Nassau County Supreme Court Index Number 201814/2011; see Stipulation of Settlement Agreement (B, 06/10/14), Nassau County Supreme Court Index Number 201814/2011. On March 5, 2021, Ms. B filed another violation petition against Mr. B seeking to enforce the parties’ divorce documents. Ms. B sought Mr. B’s pro rata share of the children’s unreimbursed medical expenses, and sought to enforce Mr. B’s obligation to pay for the children’s health insurance premiums. On May 17, 2021, Ms. B filed a third enforcement petition against Mr. B. She sought to enforce the Court’s December 22, 2020 decision and order which directed Mr. B to pay for unreimbursed dental expenses arrears owed and Ms. B’s attorneys fees. Despite attempts to settle the cases, a resolution could not be reached and the matters were scheduled for a trial. A trial in the matter was commenced and completed. On September 7, 2021, the Court issued a decision and order after trial. See Decision/Findings of Fact And Order After Trial (Mendelson-Toscano, S.M., 09/07/2021), Nassau County Family Court Docket Numbers F-05032-15/21P, 21R, 21S. In that decision and order, the Court, inter alia, awarded Ms. B $4,000.00 in legal fees. See id. Mr. B filed objections to the Court’s decision and order. See Objections to the Decision/Findings of Fact And Order After Trial (10/06/2021), Nassau County Family Court Docket Numbers F-05032-15/21P, 21R, 21S. On January 26, 2022, the Honorable Eileen C. Daly-Sapraicone (hereinafter “Judge Daly-Sapraicone”) granted Mr. B’s objection to this Court’s attorneys fees award “without prejudice to an appropriate application for counsel fees.” Order (Daly-Sapraicone, J., 01/26/2022), Nassau County Family Court Docket Numbers F-05032-15/21P, 21R, 21S. On January 17, 2023, Ms. B filed an attorneys fees motion. See Not. of Mot. (K, 01/14/23), Nassau County Family Court Docket Numbers F-05032-15/21P, 21R, 21S; see also Aff. (K, 01/14/23), Nassau County Family Court Docket Numbers F-05032-15/21P, 21R, 21S. On January 19, 2023, Mr. B filed responsive papers. See Resp’t's Aff. in Opp’n to Pet’r's Mot. for Counsel Fees (B, 01/19/23), Nassau County Family Court Docket Numbers F-05032-15/21P, 21R, 21S. In his papers, he argued that Ms. B’s legal fees motion is untimely. See id. On that same date, the matter was marked submit. The Court’s decision follows: DISCUSSION New York State Family Court Act §438(a) (hereinafter “FCA §438(a)”) provides that attorneys fees may be awarded in support actions at any stage of the proceedings. See N.Y. FAM. CT. ACT §438 (McKinney’s 2023); see also Cannam v. Phillips, 176 A.D.3d 810, 811 (2d Dep’t 2019); Anna Y. v. Alexander S., 142 A.D.3d 864, 864 (2d Dep’t 2016). Such an award is left to the sound discretion of the court. See Yu Wei v. Mathews, 165 A.D.3d 957, 958 (2d Dep’t 2018); see also Felix v. Felix, 110 A.D.3d 805, 805 (2d Dep’t 2013); Burris v. Burris, 91 A.D.3d 866, 867 (2 Dep’t 2012). The factors to be considered when calculating an appropriate award include “‘the parties’ ability to pay, the merits of the parties’ positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel’s performance and the fees under the circumstances.’” Lugo v. Torres, 174 A.D.3d 594, 595 (2d Dep’t 2019); see also Roberts v. Roberts, 176A.D.3d 1226, 1228 (2d Dep’t 2019); Yu Wei, 165 A.D.3d at 958; Felix, 110 A.D.3d at 805 (citing cases); Burris, 91 A.D.3d at 867. A court may also take into account whether one party has delayed the proceedings, or engaged in unnecessary litigation by failing to comply with discovery and other court orders. See Lugo, 174 A.D.3d at 595; see also Black v. Black, 140 A.D.3d 816, 816- 17 (2d Dep’t 2016); Weiss v. Rosenthal, 135 A.D.3d 780, 781 (2d Dep’t 2016); Branche v. Holloway, 124 A.D.3d 553, 555 (1st Dep’t 2015). A court should not make its determination solely upon who prevailed and who lost. See Yu Wei, 165 A.D.3d at 958 (citing cases). Where found to be untimely, courts deny counsel fees applications. See Costigan v. Renner, 160 A.D.3d 845, 846 (2d Dep’t 2018) (affirming denial of motion for counsel fees filed four months after order was issued); see also Silver v. Green, 119 A.D.3d 806, 808 (2d Dep’t 2014) (finding motion for attorneys fees should have been denied as untimely); McGrath v. Parker, 41 A.D.3d 852, 853 (2d Dep’t 2007) (five months delay in making formal application for counsel fees unreasonable); Brown v. Brown, 82 Misc. 2d 759, 761 (Onondaga Cty. Fam. Ct., June 24, 1975) (one and a half year delay from support order entrance date to attorneys fees application unreasonable). There is simply no good reason, nor was one proffered, as to why Ms. B’s counsel fees motion was filed a year after Judge Daly-Sapraicone’s decision granting Ms. B the right to file a formal application for counsel fees. Order (Daly-Sapraicone, J., 01/26/2022), Nassau County Family Court Docket Numbers F- 05032-15/21P, 21R, 21S. Given the length of time between Judge Daly-Sapraicone’s decision and Ms. B’s legal fees motion, the Court finds that such application is untimely. Moreover, Ms. B’s attorneys fees motion is dismissed for failure to make a prima facie showing of substantial compliance with 22 NYCRR §1400.2 and1400.3. See 22 NYCRR §§1400.1, 1400.2, 1400.3. In order to prevent abuse in the practice of domestic relations matters, court rules were created which impose certain requirements upon retained matrimonial and family court attorneys. See 22 NYCRR §§1400.1, 1400.2, 1400.3; see also Gottlieb v. Gottlieb, 101 A.D.3d 678, 679 (2d Dep’t 2012); Greco v. Greco, 161 A.D.3d 950, 951-52 (2d Dep’t 2018). Those court rules dictate that such attorneys must provide their clients with a written retainer agreement, a statement of their client’s rights and responsibilities, and written, itemized invoices at least every sixty days. See 22 NYCRR §§1400.2, 1400.3. A counsel fees application must include a prima facie showing of substantial compliance with those rules. See Tarpey v. Tarpey, 163 A.D.3d 687, 688-89 (2d Dep’t 2018); see also Greco, 161 A.D.3d at 951-52; Gottlieb, 101 A.D.3d at 679. Failure to submit appropriate proof within the moving papers precludes an award of attorneys fees. See Spataro v. Spataro, 2022 N.Y. Slip. Op. 07470, at *1 (2d Dep’t 2022); Greco, 161 A.D.3d at 951-52. The Court has reviewed the parties’ papers as well as the electronic file of the matter. Ms. B failed to submit proof that her attorney provided her with itemized invoices at least every sixty days and a statement of her rights and responsibilities. ADJUDGED, that Ms. B’s attorneys fees application is untimely; and it is further, ADJUDGED, that Ms. B failed to make a prima facie showing of her attorney’s substantial compliance with court rules §§1400.2 and 1400.3; and it is therefore, ORDERED, that Ms. B’s motion for counsel fees is hereby denied. This constitutes the decision, opinion, and order of the Court. YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CRIMINAL NON-SUPPORT OR CONTEMPT OF COURT; YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSES, STATEISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL BY WAY OF OBJECTION 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 COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON APPELLANT, WHICHEVER IS EARLIEST. IF YOU WERE NOT IN COURT FOR THE HEARING, ANY CHALLENGE OR OBJECTION TO THIS ORDER MAY BE LIMITED TO THE FILING OF A MOTION TO VACATE THE ORDER. Check applicable box: Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given] Dated: January 27, 2023
