Frankel v. Frankel

OPINION OF THE COURT

H. Miller, J.

In this case we are asked to decide whether former counsel for a spouse in a matrimonial action may apply in their own name within that action, against the adversary spouse, for fees for legal services previously rendered.

The facts, as relevant to this appeal, are as follows. Among other things, former counsel represented the wife through over 30 days of the child custody phase of the parties’ trial. On March 12, 2001, the trial court ordered the husband to pay the wife’s counsel $25,000 in pendente lite attorney’s fees. Shortly thereafter, the wife discharged her attorneys; the discharge was reflected on the record on March 30, 2001. On that same date, and after the discharge, an attorney from the law firm indicated on the record that the firm was asserting a lien on the wife’s file, and intended to apply for its accrued legal fees. He raised the possibility that he might be able to resolve the fee issue with the husband. The husband’s counsel did not object at that time. Thereafter, within the space of one month, the wife hired two successive attorneys to represent her before the action settled. On April 27, 2001, the parties entered into a stipulation of settlement, which, in pertinent part, provided that each party would be responsible for his or her own counsel fees “unless otherwise ordered” by the trial court. Approximately one month later, the wife’s former counsel moved in this action against the husband to recover over $94,000 in fees, for services rendered to the wife. The Supreme Court granted the motion to the extent of holding that the wife’s former counsel could maintain the application for an attorney’s fee against the husband, and referred the matter to a referee to hear and report on the amount of the fee payable by the husband. The husband appeals.

We reverse. Neither the statute nor case law grants a discharged attorney the right to apply in his or her own name for retrospective fees against the adversary spouse, either within or without the matrimonial action. The relevant statutory language is as follows:

“In any action * * * brought * * * for a divorce, * * * the court may direct either spouse * * * to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action * * * as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties. * * * Any applications for counsel fees and expenses may be maintained by the attorney for either spouse in his own name in the same proceeding” (Domestic Relations Law § 237 [a] [emphasis added]).

We are bound in the first instance to ascertain legislative intent from a literal reading of the words of the statute (see Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205 [1976]; People v Cypress Hills Cemetery, 208 AD2d 247 [1995]; McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [b]; § 94). Where the legislative intent is clear and unambiguous from the language of the statute, the words used should be construed so as to give effect to their plain meaning (see Matter of State of New York v Ford Motor Co., 74 NY2d 495 [1989]; Patrolmen’s Benevolent Assn. v City of New York, supra; People v Cypress Hills Cemetery, supra), and resort to extrinsic evidence as an aid to construction, such as a statute’s legislative history, is inappropriate (see McKinney’s Cons Laws of NY, Book 1, Statutes § 76). We are aware of the sponsor’s memorandum our dissenting colleagues cite. However, “[o]nly where the legislative intent of a statute cannot be ascertained from a literal reading may the courts go outside the statute in an endeavor to find its true meaning” (People v Cypress Hills Cemetery, supra at 251).

Notably, the statute with which we are confronted here makes no mention of “discharged” or “former” counsel. Instead, the Legislature authorized “the attorney for either spouse” to seek his or her fees in the matrimonial action. We conclude that the “attorney for either spouse” means the current attorney of record for that party.

Absent a clearer expression in the statute itself, we should not pave the way for what will be the certain result of the construction the discharged attorneys seek here. It will open the floodgates to countless such applications by discharged attorneys, submitted within matrimonial actions with which they no longer have any connection. The time, energy, and additional attorney’s fees devoted to those actions ought to be spent on resolution of the spouses’ substantive disputes. The potential for distraction of courts, parties, and current counsel from the matrimonial issues is magnified by the not uncommon circumstance in such litigation that clients engage a number of attorneys before their cases are resolved. In this case, for example, the wife had three attorneys before the matter settled.

Former counsel’s construction also would diminish the available funds of the monied spouse for attorney’s fee applications by the new attorney representing the nonmonied spouse. That may not apply to this case since the wife settled the action shortly after counsel’s discharge.

The cases the discharged attorneys cite do not persuade us otherwise.

For example, in Sadofsky v Sadofsky (78 AD2d 520 [1980]), upon which the Supreme Court relied, the parties reconciled on the fourth day of their matrimonial trial, and placed a settlement stipulation on the record. Immediately thereafter, the wife’s attorney applied against the husband to recover his fee; the Supreme Court directed the attorney to submit an affidavit of services rendered, which was done. Thereafter, the parties both discharged their attorneys and retained a new one to oppose the fee application. Among other things, the parties argued through their new attorney that a plenary action was required to recover the fees. This Court rejected that contention.

Sadofsky is distinguishable. There, the wife’s counsel had not yet been discharged at the time he made his fee application, and he fell squarely within the reach of Domestic Relations Law § 237 (a), which authorizes such applications to be made by counsel for a party.

On the other hand, Monteleon v Monteleon (163 AD2d 372 [1990]) supports a reversal. In that case, the wife discharged her attorney prior to entering into a stipulation settling the matrimonial action. Thereafter, that attorney moved to set aside the stipulation and for an immediate hearing regarding the fees owed to him in quantum meruit. This Court affirmed the Supreme Court’s order denying the former attorney’s motion. There, the attorney sought his fees from his own client, and we held that he was “relegated to commencing a plenary action” to obtain his fees (Monteleon v Monteleon, supra at 373 [citations and internal quotation marks omitted]). If, according to Monteleon, the discharged attorney must resort to a plenary action with respect to his or her former client, then we see no reason why he or she should be permitted to enter the matrimonial action to pursue a fee application against the adversary spouse.

Nor do the particular facts of this case, upon which the Supreme Court relied, permit the wife’s former counsel to seek their fees against the husband herein. The open-court reservation is of no avail, because by that time, the wife’s attorneys had already been discharged, and it was by then too late for them to reserve anything — as distinguished from the situation in Sadofsky (supra). As for the language of the stipulation, we conclude that it is ambiguous. It may refer to the prestipulation $25,000 pendente lite fee award to the wife, which had not yet been paid as of the date of the stipulation. It may also refer to fees the wife may incur for her present or future counsel for postjudgment enforcement. It certainly does not clearly grant the wife’s former counsel the right to pursue the husband for over $94,000 in legal fees. In sum, neither the open-court reservation nor the stipulation permits former counsel for the wife to pursue the adversary husband for fees, within this matrimonial action.

It is important to note that the wife’s former counsel is not without a remedy. For example, the wife, or one of her successor attorneys on her behalf, could have submitted a fee application, within this action, seeking the very fees that now are at issue. That may still be an option in this case. Nothing in Domestic Relations Law § 237 (a) stands in the way of such an application, since a nonmonied spouse’s liability to prior counsel for his or her fees may constitute a serious impediment to that spouse’s financial ability to carry on or defend the action, or to enter into a feasible settlement.

Consideration of the purpose of Domestic Relations Law § 237 (a) buttresses our conclusion that former counsel has no standing to pursue the adversary spouse within the matrimonial action. As the Court of Appeals has noted, the statute “is designed to redress the economic disparity between the monied spouse and the non-monied spouse” (O’Shea v O’Shea, 93 NY2d 187, 190 [1999]). One party to a matrimonial action should not have the advantage simply because he or she has greater financial resources; thus, the Legislature gave trial courts discretion “to make the more affluent spouse pay for [the] legal expenses of the needier one” (O’Shea v O’Shea, 93 NY2d at 190). In sum, Domestic Relations Law § 237 (a) is designed to fund the matrimonial action by providing for fee payments to the attorney for the adversary, nonmonied, spouse to allow that spouse to “carry on or defend” the suit. Its aim is to level the financial playing field between the parties. It is the non-monied client whose interests the statute protects, as it is that person who runs the risk of being financially worn out by his or her adversary’s greater resources. While the discharged attorney certainly has an interest in getting paid, nothing in the language of Domestic Relations Law § 237 (a) addresses that particular interest. Once discharged, former counsel cedes the statutory standing of Domestic Relations Law § 237 (a) to pursue the adversary spouse to successor counsel, who may then invoke the statute, as necessary, to allow his or her current client to “carry on or defend” the action.

Accordingly, the order appealed from is reversed, on the law, with costs, and the motion is denied.