                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 19, 2015                    518329
________________________________

MARK JAMES LaPLANTE,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

CHRISTINE ANN LaPLANTE,
                    Appellant.
________________________________


Calendar Date:   January 15, 2015

Before:   Lahtinen, J.P., Garry, Devine and Clark, JJ.

                             __________


      Getnick Livingston Atkinson & Priore, LLP, Utica (Brian J.
Ehrhard of counsel), for appellant.

     Trevor W. Hannigan, Albany, for respondent.

                             __________


Lahtinen, J.P.

      Appeals (1) from a judgment of the Supreme Court (Teresi,
J.), entered April 29, 2013 in Greene County, upon a decision of
the court partially in favor of plaintiff, and (2) from an order
of said court, entered June 19, 2013 in Greene County, which
denied defendant's motion for an award of counsel fees.

      Plaintiff (hereinafter the husband) and defendant
(hereinafter the wife) were married in June 2006 and this divorce
action was commenced in August 2010. Following a trial, Supreme
Court rendered a written decision in November 2012 in which it
granted a divorce, distributed the marital property, awarded the
wife durational maintenance and, as relevant on appeal, denied
the wife's request for counsel fees. The denial of counsel fees
was based primarily on a lack of proof as to such issue. In
January 2013 and before the judgment of divorce was entered, the
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wife made a motion for counsel fees and submitted, among other
things, billing records. The motion was denied in a decision
dated March 2013 (later reduced to an order entered in June
2013). The judgment of divorce was entered in April 2013. The
wife appeals.

      We affirm. Domestic Relations Law § 237 (a) was amended in
2010 and the new provisions apply to actions commenced on or
after October 12, 2010 (see L 2010, ch 329, §§ 1, 3; ch 415).
This action was commenced in August 2010 and, although the
parties and Supreme Court referenced some of the newly added
statutory language, nonetheless, the application for counsel fees
was governed by Domestic Relations Law former § 237 (a) (see
Harrington v Harrington, 93 AD3d 1092, 1094, n 2 [2012]). The
language of the former statute "ha[d] been interpreted to permit
the court to direct payment of fees and expenses 'at any time
after the start of the action up through the entry of final
judgment'" (Redgrave v Redgrave, 304 AD2d 1062, 1066 [2003],
quoting O'Shea v O'Shea, 93 NY2d 187, 192 [1999]), and making
such an award is "'left to the sound discretion of [the trial
court]'" (Cornish v Eraca-Cornish, 107 AD3d 1322, 1326 [2013],
quoting Strang v Strang, 222 AD2d 975, 979 [1995]).

      At trial, the wife's counsel stated that counsel fees would
be addressed, but evidence was not presented as to such issue.
Supreme Court set forth on the record that counsel fees was one
of the issues at trial. The court instructed the parties to
address such issue in their proposed statements of fact and
conclusions of law, thus giving further notice that the issue
would be decided based on the evidence presented at trial, and
the wife's counsel indicated that he had no questions regarding
the court's instructions. The court had also told the parties
that it would not accept additional proof after the trial.

      Inasmuch as the wife's counsel failed to "establish the
nature or value of the services rendered," Supreme Court did not
err in refusing to award counsel fees (Nolan v Nolan, 104 AD3d
1102, 1107 [2013]; see Yarinsky v Yarinsky, 2 AD3d 1108, 1110
[2003]). Although the court was permitted (but not required)
under the former statute to consider an application for counsel
fees up to entry of judgment, we are unpersuaded that it abused
                              -3-                518329

its discretion here in light of the parameters and time frames it
had established for submitting such proof. Lest there be any
confusion, we make clear that this case is decided under the
former statutory language and we express no opinion whether the
result would be the same under the current statutory language.

     Devine and Clark, JJ., concur.


Garry, J. (dissenting).

      I respectfully dissent. I agree with the majority that
counsel for defendant (hereinafter the wife) erred in failing to
present proof at trial of the nature and value of the services
rendered and, further, that Supreme Court was not required to
consider a posttrial application for counsel fees under the
former statute, although it had the discretion to do so (see
Domestic Relations Law former § 237 [a]; Redgrave v Redgrave, 304
AD2d 1062, 1066 [2003]). Nonetheless, considering the
circumstances, and particularly in view of the great disparity in
the parties' finances and the underlying reasons for this
disparity, I find that the court's refusal to render a posttrial
award results in the imposition of an unjust punishment upon the
wife based solely upon the error of her counsel (compare Shapiro
v Shapiro, 179 AD2d 525, 526 [1992]). Thus, reviewing the
imposition upon the court arising from counsel's errors, and the
harm to the wife arising from the court's refusal to entertain
the belated application, I find that counsel fees should have
been awarded.

      The evidence established that plaintiff (hereinafter the
husband) – who had been a State Trooper for more than 25 years
and had an annual income of $109,000 at the time of trial – was
financially secure before the parties' four-year marriage and
remained so thereafter. By contrast, the brief marriage
drastically altered the wife's financial security. Before the
marriage, she had been securely employed for 15 years as a
tenured special education teacher. Following the marriage,
however, she left this position and moved with the husband to
another county. The move was necessitated by the husband's job
transfer, and Supreme Court found as a fact that the wife left
                              -4-                518329

her teaching position to further the husband's career in law
enforcement. Although the wife obtained a teaching job in the
new community, she was laid off after two years – through no
fault of her own, as the court found – and was unable to find
steady employment thereafter. She was unemployed at the time of
trial; the court found that she was actively seeking employment,
but had no immediate prospects for full-time work. The wife's
only income consisted of unemployment insurance payments and
Social Security survivorship benefits related to the death of her
former husband, both of which were scheduled to terminate a few
months after the trial.

      The distributive award provided almost no additional liquid
resources. The wife received an undivided interest in a house in
the Town of Remsen, Oneida County that she had owned before the
marriage, burdened by a mortgage that was her sole
responsibility. At the time of trial, she was residing in this
house with her two children, ages 17 and 22. The wife also
received a half interest in the equity in the heavily-mortgaged
marital residence in an unspecified amount, as well as a vehicle
encumbered by a lien.1 Thus, unless and until she found work,
almost the only financial resource available to her to pay her
counsel fees – and to maintain her household, cover her mortgage,
car payments, health insurance premiums and other obligations,
and support herself – was Supreme Court's maintenance award of
$24,000 annually for two years.

      As the majority notes, the rebuttable presumption in favor
of awarding counsel fees to the less monied spouse does not apply
here (see Domestic Relations Law § 237 [a]; L 2010, ch 329, §§ 1,
3; ch 415). Nevertheless, even under the former statute, the
parties' relative financial circumstances were significant in
making a discretionary award of counsel fees (see Domestic
Relations Law former § 237 [a]; DeCabrera v Cabrera-Rosete, 70
NY2d 879, 881 [1987]; Armstrong v Armstrong, 72 AD3d 1409, 1416


    1
        No evidence was presented of the value of the equity in
the marital residence at the time of trial, but, in light of the
record evidence, it does not appear that the total equity
exceeded a sum in the range of roughly $10,000.
                              -5-                  518329

[2010]; Laura WW. v Peter WW., 50 AD3d 1292, 1292-1293 [2008]),
and a substantial difference in the parties' financial resources
was a proper basis for such an award (see Freas v Freas, 33 AD3d
1069, 1071 [2006]; Walters v Walters, 252 AD2d 775, 775-776
[1998]; White v White, 204 AD2d 825, 829 [1994], lv dismissed 84
NY2d 977 [1994]).

      Here, the wife's counsel submitted proof of the nature and
value of the legal services rendered as part of the posttrial
application for counsel fees. Considering the wife's lack of
culpability for her counsel's error in failing to present such
proof at trial and the extreme disparity in the parties'
financial resources, I find that Supreme Court improvidently
exercised its discretion in failing to consider that application
and render an appropriate award of counsel fees. Accordingly, as
no hearing was conducted and the parties did not stipulate to a
determination based upon written submissions, I would remit the
matter to Supreme Court for a hearing on the amount of the award
(see Redgrave v Redgrave, 304 AD2d at 1066-1067).



      ORDERED that the judgment and order are affirmed, without
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
