Appellate Division of the Supreme Court of New York · Family Law
Family Lawseparation actioncounsel feesexpensesallowancesexcessive awardmodification on appealcertiorari
Facts
The trial court awarded the plaintiff counsel fees and expenses for work related to argument on the return of a writ of certiorari in the United States Supreme Court. The amount awarded was $1,150. The appellate court considered that award in light of the facts and circumstances of the case. It particularly considered the amounts of prior allowances.
Issue
Whether the order awarding $1,150 in counsel fees and expenses in the separation action should be left intact or reduced as excessive.
Rule
An allowance of counsel fees and expenses in a separation action may be modified on appeal when, in view of all the facts and circumstances, and particularly the amounts of prior allowances, the award is excessive.
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10 practice questions + 4 AI-graded essays on this case
One of 10 multiple-choice questions for this case. Pick an answer to see why.
In a separation action in Albany, Dana Mercer obtained a trial-court order awarding her $9,000 in counsel fees for recent appellate motion work. The record shows that during the same litigation she had already received three prior fee allowances totaling $28,000 for related representation.
If Dana's spouse appeals only the amount of this latest allowance, what is the most likely result under the governing rule?
Explanation. The controlling rule is narrow: an appellate court may modify a counsel-fee and expense allowance in a separation action when, in view of all the facts and circumstances, and particularly the amounts of prior allowances, the award is excessive. The prior allowances do not automatically bar any further award, but they are given particular weight in assessing excessiveness. (Derived from Estin v. Estin (n.d.).)