
    Herman Plancher, Plaintiff, v. Ruth Plancher, Defendant.
    Supreme Court, Special Term, Queens County,
    February 1, 1973.
    
      Morris H. PUdpern for defendant. H. Leonard King for plaintiff.
   William C. Brennan, J.

Defendant wife moves for an order “ 1. Granting leave unto the defendant, Ruth Plancher, to reargue and for a reconside ation of her application for an additional counsel fee and disbu: 5ementa to her attorney, Morris H. Halpern, Esq., for the extraordinary and substantial legal services rendered on her behalf in connection with the defense of this divorce action, brought by the plaintiff-husband against her, and upon the granting of such leave;

2. Recalling its denial of such additional counsel fee and disbursements ; Granting the same, and Fixing the amount to be paid by the plaintiff-husband therefor in the sum of at least $7,500;

3. Amending the judgment of November 20, 1972 only to the extent of including the decretal fixing such additional counsel fee and disbursements, and Directing its payment by the plainr tiff; and

4. Granting unto the defendant such other, further and different relief as may seem just and proper in the premises

In support of her application, her attorney points out that this ‘ ‘ non-fault ’ ’ divorce action was settled with the aid of the court on October 5, 1972, disposing of financial issues and property rights, reserving to the court only the amount of counsel fees to him as her attorney “ payable by the husband pursuant to section 237 of the Domestic Relations Law ’ ’ on affidavits to be submitted; that the court had denied the request" for additional fees beyond the retainer of $3,500 originally paid by the wife and $500 paid by the husband solely for defense of his appeal and prosecution of defendant’s cross appeal in the Appellate Division (35 A D 2d 417); that no application was made for the appeal to the Court of Appeals. Defendant’s counsel urges that the court inadvertently overlooked that plaintiff husband was not entirely successful in this litigation; that the Appellate Division implicitly found substantial merit in defendant wife’s position. He urges that denial of additional counsel fees to him should be recalled for reasons (1) that the husband commenced the action and that it is hornbook law that in such cases it is the husband’s obligation to supply the wife with suit money, citing cases; (2) that the husband, only paid $500 for defending against the husband’s appeal and in prosecuting the wife’s cross-appeal; (3) that the husband was not the resisting successful husband ” in this case in that the appeals courts recognized the merits of the wife’s contentions and (4) that the final settlement negates any conclusion that the wife was the unsuccessful party.

He complains that the court’s summary disposition denying him additional counsel fees places attorneys in an unenviable, conflicting and confounding ethical and practical situation where they must resolve the legal conflict between the interests and welfare of the client and the attorney’s financial loss if he is to be compensated for a meritorious and novel question of law only if entirely successful thereon. He asserts, without citing any authority, that a husband who commences divorce action must pay the full reasonable value of legal services rendered to the wife even if she has advanced part of the cost thereof.

In opposition, the husband’s attorney urges that there is no genuine showing that the court overlooked or misapprehended any of the facts or law in the original application or had made a mistake. He points out that the decision of the Appellate Division was unanimous and that therefore there was no implicit substantial merit as claimed by movant and that, although counsel for movant cites cases decided in 1957, 1969 and 1970, he omits more recent cases which establish the present law as regards counsel fees; that section 237 of the Domestic Relations Law, passed in 1966 and amended six times since, makes no mention of any requirement that a husband is obliged to pay for the wife’s defense of an action brought by him for divorce and that much of the services rendered were generated by the conduct and tactics of the wife’s attorney; that it was two years before he apprized the court that he had received a $3,500 retainer from the wife, and that defendant wife was earning well over $20,000 annually at the time of her application for fees for. the appeal, none of which was revealed to the court at that time.

In his reply affidavit, the wife’s attorney urges that both the Winter (infra) and Kann (infra) cases cited by the opposition (and referred to below) are in the First Department and that the Second Department has not followed the “ dicta ” of Kann.

This court was troubled by the question of a husband’s liability for necessary legal expenses paid by a wife with adequate means in defending a matrimonial action instituted by him, and by the further question of the power of the court to grant an award of any such counsel fees as an incident to a final judgment of divorce in such circumstances. In the First Department it would appear that the court may not, in the matrimonial action, award such fees where a wife is able to pay. In Kann v. Kann (38 A D 2d 545 [1st Dept., 1971]) the court states: Counsel fees are awarded in a matrimonial action in order to insure that an indigent wife has legal representation. If she is able to pay for her own counsel, no award may be made. Of course, any person who advances her the sum on the strength of the husband’s credit may sue him for necessaries, the result being dependent on all the factors which govern such actions.”

(Kupfebmaft, J.,

dissenting.)

In Winter v. Winter (39 A D 2d 69 [1st Dept., 1972]) that court affirmed the trial court’s holding denying the wife reimbursement of $5,000 which had already been paid, which was concluded to be reasonable compensation. Mr. Justice Kupfebmaft, presiding, stated that he joins in the determination under constraint of the precedent established in Kann (supra).

Section 237 of the Domestic Relations Law provides: “ The court may direct the husband, or where an action for annulment is maintained after the death of the husband may direct the person or persons maintaining the action, to pay such sum or sums of money to enable the wife 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.”

In the Practice Commentary by Professor David D. Siegel (McKinney’s Cons. Laws of N. Y., Book 14, pp. 286-287) he states: “The section uses the words ‘to enable the wife’ to carry on the litigation, while the counterpart phrase of CPA § 1169 was ‘ necessary to enable the wife.’ It should follow from section 237(a)’s omission of the word ‘necessary’ that the wife’s need of the money for counsel fees, at any point up to final judgment is no longer to be a prerequisite to an award of them (however her need or lack of it may affect the court’s exercise of its omnipresent discretion under section 237[a]). That the wife may have an independent and substantial source of income may effect an exercise of discretion to deny her counsel fees; that she may be able to scrape the money together by taking a job or borrowing may effect an exercise of discretion to grant her counsel fees (i.e., not put her to such burdens to produce the required money herself). (It was expressly the Committee’s aim to reduce ‘necessity’ to only a factor in the exercise of the court’s discretion rather than to let it remain a standard by itself; see Leg. Doc. [1961] No. 19, p. 81.) In either instance the court’s discretion will dictate the answer. Under the broad criteria set forth in the section, each case will necessarily be sui generis.

“Nothing is said in section 237(a) about the wife’s success or failure in the suit, or about her being plaintiff or defendant. Regardless of her position, apparently, and regardless of the outcome, the court’s discretion remains and it alone will determine whether she is to be awarded counsel fees and expenses.”

In an action for separation, the Appellate Division of this Department (Walsh v. Walsh, 22 A D 2d 937, 938) awarded a counsel fee pendente lite stating: The fact that she has an income of her own does not deprive her of a right to a counsel fee pendente lite from her husband (Hirschberg v. Hirschberg, 7 A D 2d 869). Nor does the fact that she may have some personal assets deprive her of the right to such counsel fee where the personal assets are not sufficient to enable her to prosecute the action (Scheideler v. Scheideler, 10 A D 2d 991; Kaiser v. Kaiser, 262 App. Div. 835). Kleinfeld, Acting P. J., Christ, Hill, Babin and Hopkins, JJ., concur.”

In De Gasper v. De Gasper (31 A D 2d 886 [4th Dept., 1969]) the court states: “ In this case, where a husband is suing for divorce, we find no impropriety in the allowance of counsel fees to defendant ”. (Walsh v. Walsh, supra.)

This court in its original decision rendered after careful review of the facts and the law involved, considered and briefly discussed the nature and extent of the services rendered, the necessity therefor, the liability for services rendered resulting in the resolution of novel issues, the reasonable value of ■the services reasonably necessary for the defense of the action and the protection of the wife’s interest, the amount paid and by whom.

The statute provides discretion to the court to direct the husband to pay a .sum to enable the wife to carry on or defend the action, having regard for the circumstances of the case and of the respective parties.

There is nothing sufficiently persuasive in the moving papers or in the cases cited in support of the motiton to create any doubt in the mind of the court with respect to the validity of its decision in fact or in law.

Beargument is granted and upon reargument the court adheres to its original decision.  