An unmarried mother was rightfully awarded $120,000 in attorney fees in a child custody dispute, a state appeals court has ruled, pointing to the “wider breadth” of a state Domestic Relations Law section that contrasts with a different section that “does not apply to children of unmarried parents.”
An Appellate Division, First Department panel also found in its ruling Thursday that the mother’s failures to disclose a valuable asset and a job offer did not mean that the trial court’s attorney fees awards should be undone.
Addressing father Scott Balber’s argument that mother Elise Zealand should not have gotten attorney fees awarded pursuant to Domestic Relations Law § 237(b)—which the trial court relied on in awarding $35,000 of the $120,000 she eventually was awarded—the panel wrote that the “Supreme Court appropriately relied on Domestic Relations Law § 237(b) in awarding the mother [interim attorney] fees on her initial application [for fees], and could have relied on it again in its second award [of interim attorney fees of $85,000].”
“The statute’s plain language disproves appellant father’s arguments about the statute’s inapplicability to custody disputes between unmarried parents,” the panel wrote, “as it contemplates a fee award to a ‘spouse’ or ‘parent’ in custody proceedings either arising under Domestic Relations Law § 240 or otherwise.”
The unanimous panel’s reference to an award arising “or otherwise” was key to its ruling, as the panel then cited the 1996 Manhattan Supreme Court decision Brentrup v Culkin, which, it said, “held that § 240 does not apply to children of unmarried parents.”
The panel explained that the Brentrup decision’s holding that § 240 does not apply to children of unmarried parents, “only highlights the wider breadth of § 237, which covers not only § 240 proceedings, but other custody proceedings as well.”
It then noted that the First Department “and other courts have accordingly awarded counsel fees to an unmarried parent in a custody dispute on Domestic Relations Law § 237(b) grounds,” citing Matter of Brookelyn M. v Christopher M., 161 AD3d 662 (1st Dept 2018), Matter of Renee P.-F. v Frank G., 161 AD3d 1163 (2d Dept 2018), Evgeny F. v Inessa B., 127 AD3d 617 (1st Dept 2015), Matter of Ralph D. v Courtney R., 123 AD3d 635 (1st Dept 2014), and Allen v Farrow, 197 AD2d 327 (1st Dept 1994).
In turning to Balber’s challenge to the interim attorney fees awarded based on his allegations that she failed to disclose an asset and a job offer, and how he characterized her methods of fighting the dispute in courts, the panel said the awards given were “well within the [trial] court’s discretion.”
It noted that the $120,000 total awarded by Manhattan Supreme Court Justice Laura Drager “was far less than the $225,000 total fees requested” by Zealand.
Then, panel Justices Dianne Renwick, Sallie Manzanet-Daniels, Jeffrey Oing and Peter Moulton wrote that “the father conceded he was the more affluent party, and the court providently exercised its discretion so as ‘to further the objectives of litigational parity,’” quoting O’Shea v O’Shea.
Moreover, said the justices, Drager “expressly took into consideration the very issues raised by the father on appeal,” and “properly took these factors into consideration in awarding her only 53% of the fees she sought,” the panel added.
The panel also wrote that the “father faults the mother for not saving more money to pay her own fees, but even if she ‘had the funds to pay her attorneys, that is not in itself a bar to an award of counsel fees,’” quoting Anna-Sophia L. v Paul H., 52 AD3d 313.
In addition, wrote the panel, the father “reasonably complains about [Zealand’s] failure to timely disclose her job offer to the court, but her lack of candor had no apparent impact. The court expressed skepticism that she had been seeking employment as diligently as she claimed, and thus at least impliedly rendered its decision with her earning potential in mind,” citing Saunders v Guberman, 130 AD3d 510.
Jason Advocate of Advocate LLP in Manhattan represented Zealand. In a phone interview Friday, he said that, in his view, the First Department’s decision “puts to bed … the question of whether the monied parent has to pay legal fees in a custody case where the parents were not married.”
“There can be no further question, going forward, that unmarried parents should be treated the same as a married couple when it comes to legal fees in a custody dispute,” he said.
Jennifer Kouzi of Kaminer Kouzi & Associates in Manhattan, represented Balber. She could not be reached immediately for comment.