Moccia v. Moccia , 918 N.Y.2d 802 ( 2011 )

The defendant wife in this divorce action was unable to afford counsel. The Supreme Court assigned the nonparty appellant, Eric Ole Thorson (hereinafter the appellant), to represent the wife without compensation from her, “without prejudice to [a] motion by counsel for compensation pursuant to CPLR 1102 (d), Domestic Relations Law Section 237, Judiciary Law Section 35 or as otherwise provided by law.” The parties engaged in discovery, prepared for trial, and successfully negotiated a settlement agreement. The Supreme Court denied the appellant’s motion for an award of an attorney’s fee to be paid by the plaintiff husband. We affirm.

A court may award an attorney’s fee in a divorce action to a spouse “to enable [that spouse] 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” (Domestic Relations Law § 237 [a]; see DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]).

Here, while the husband’s income from the Yonkers Parking Authority was greater than the wife’s income, his earnings were nevertheless modest and they were expended, in large part, on the wife and their children, as he paid, among other things, the mortgage and home equity loan, plus utilities on the marital home. In this regard, the Supreme Court properly considered the terms of the parties’ settlement agreement and statements of net worth, which reflected the husband’s income and expenses, limited assets, outstanding mortgage, the absence of savings, and debt to his own counsel, in determining that the parties’ financial circumstances were “not that disparate so as to warrant an award of counsel fees.” While we commend any attorney who, as here, agrees to accept a litigation assignment with no guarantee of compensation, the denial of an award of an attorney’s fee in this case was not an improvident exercise of the Supreme Court’s discretion. Dillon, J.E, Leventhal and Cohen, JJ., concur.