Whether a trial court has discretion to include amounts for legal services that were rendered before a divorce action is commenced, and for those rendered in connection with a counsel fee hearing.
Yes. The statute authorizing award of attorneys fees, Domestic Relations Law § 237(a), authorizes the inclusion of both amounts.
After their divorce, Thomas M. O'Shea was ordered to pay all of Alexandra Sununu O'Shea's legal bills in the amount of $149,932. The Appellate Division, Second Department, modified the judgment by reducing the amount to $107,340.93.
While the Appellate Division viewed it as "appropriate for the trial court to require the defendant to pay the plaintiff's entire counsel fees," it ruled that the award "should not have included the fees incurred in the preparation of the application for fees or the fees incurred prior to the commencement of the divorce action."
The Court of Appeals reinstates the award holding that because of the absence of the phrase "during the pendency" from Domestic Relations Law § 237(a) it should be read as providing authority for courts to include both amounts, in appropriate cases, based on criteria that include the circumstances of the parties and the reasonableness of their positions.