The Lawletter Vol 38 No 12
An ordinary New York divorce case was proceeding in a normal manner until the wife received a statement from the husband's group health plan. The statement showed that the husband had been given prescriptions for extremely large amounts of pain-killing narcotics. In all likelihood, he was either addicted to the medications or reselling them for a profit.
Based upon the statement, the wife filed a motion to suspend visitation. This motion was initially granted, but the court then allowed supervised visitation. The visitation went well, and the husband filed a motion for unsupervised visitation, alleging that he was attempting to eliminate all use of narcotics. This attempt ultimately failed—the husband had permanent injuries that required moderate use of narcotics for pain control—but the husband's use of narcotics was greatly reduced. Eventually, the court's final order awarded unsupervised visitation, subject to certain requirements.
The wife then moved for a substantial award of counsel fees. Attorney's fees awards are rare in American law, but there is a substantial exception for domestic relations cases, in which the court has broad discretion to make attorney's fees awards, after considering the means of the parties and the manner in which the case was litigated. The wife's motion specifically relied on the husband's improper use of narcotics, which had added numerous issues to the case and greatly increased the cost of resolving it. She also argued that the husband had repeatedly failed to comply with discovery requests.
The court granted the wife's motion. N.M. v. R.G., No. 50043/2011, 2014 WL 43885 (N.Y. Sup. Ct. Jan. 2, 2014). "Husband's failure to acknowledge and timely address his abuse, or misuse, of prescription drugs resulted in the necessity of a motion to suspend his visitation, the necessity of a court appointed [visitation] supervisor [name omitted], and a protracted trial including medical experts that would not have otherwise been necessary." Id. at *11. "Husband's application to reopen the record, his attorney's motion to withdraw as counsel based upon Husband's failure to pay counsel fees, and Husband's repeated failure to provide financial discovery, resulted in excessive delay." Id. The amount of the award was 50% of the wife's total attorney's fees.
N.M. is a timely reminder that domestic relations courts do make substantial fees awards against parties who needlessly delay litigation. It is particularly significant to note that the wife lost the most substantial issue on the merits: Her attempt to limit the husband's visitation was not successful. But the entire issue existed only because of the husband's misconduct, and parties who fail to comply with discovery rarely get much sympathy from the court. When one party's misconduct greatly increases the expense of trying a case, a fees award is possible even if the party seeking the award did not fully prevail on the merits.