Herbert L. v Maria L.[*1] Herbert L. v Maria L. 2011 NY Slip Op 51350(U) Decided on July 15, 2011 Supreme Court, Westchester County Duffy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on July 15, 2011
Supreme Court, Westchester County
Herbert L., Plaintiff,
Maria L., Defendant.
Counsel for Plaintiff
Nancy Chemtob, Esq.
3 East 54th Street
New York, New York 10022
Counsel for Defendant
Sophia L. Trott, Esq.
9 West Prospect Avenue, Suite 208
Mount Vernon, New York 10550
Therese R. Malach, Esq.
470 Mamaroneck Avenue
White Plains, New York 10605
Colleen D. Duffy, J.
Dated: White Plains, New York
Footnote 1: Plaintiff does, however, contend that Defendant has not provided sufficient support for her application. See Affidavit of Herbert L., sworn to July 1, 2011, at ¶ 8.
Footnote 2: On November 9, 2010, at a hearing on an emergency Order to Show Cause by Plaintiff, the Court awarded Plaintiff temporary sole legal and physical custody of the children, having found, based on the evidence presented at the hearing - - testimony by Dr. Kathleen McKay, Ph.D., and testimony of the Defendant herself - - that the children were in imminent danger in the custody of Defendant, in that the Defendant was perpetuating a custodial arrangement that was overtly hostile to Plaintiff and was supporting the alienation of affections of the Subject Children toward the Plaintiff to the severe emotional detriment of the children. Defendant also was held in contempt of court by this Court on that date, due to her outbursts and profanity in court, despite having been warned to cease such behavior.
Footnote 3: In McGee, the court declined to "assume to itself the empowerment of FCA § 262" determining that to do so in that case "would be inappropriate." Id. at 582. In fact, the McGee court was not "assuming a power" but rather declining to exercise an existing power. The McGee court's decision to refrain from exercising its constitutionally granted authority is not controlling on this court. The Court also notes that no other published decision in New York has cited to McGee.
Footnote 4: Domestic Relations Law § 237 provides that a court can require one spouse to pay for the attorneys fees of the other spouse in a matrimonial action, including with respect to issues of custody and visitation, where justice requires and considering the circumstances of the case and the parties.
Here, the circumstances of this case indicate that such an order would not serve the interests of justice. The Court notes that the primary custody issue in this matrimonial proceeding emanated from the Plaintiff's contentions, which were supported by Dr. McKay, the forensic evaluator, at the November 2010 hearing, that the Defendant has created an overtly hostile environment which has alienated the Subject Children's affection for Defendant.
Under these circumstances, and, noting that the case has dragged on for over three years during which time Plaintiff husband has been responsible for the lion's share of fees, and, noting that Plaintiff now contends he does not have the financial resources to continue to pay for even those costs, the Court declines to require Plaintiff to bear the cost of Defendant's attorneys fees.