OPINION OF THE COURT
In making its award for counsel fees in this divorce action, the trial court included amounts for legal services that were rendered before the action was commenced, and for those rendered in connection with a counsel fee hearing. The question before us is whether the court had discretion to do so. We hold that it did.
After having been married for over 25 years the parties sought to dissolve their marriage. Ultimately, they both hired attorneys. Efforts at settlement failed, and the wife commenced an action for divorce. Following pre-trial proceedings, a 12-day trial, and a hearing in connection with the amount of attorneys' fees that the husband would have to pay to the wife, the court awarded the wife attorneys' fees to cover her entire legal obligation, including fees for legal work done both before the commencement of the action and in connection with the counsel fee hearing.
Citing Conklin v Conklin (196 App Div 607) the Appellate Division deleted the award for pre-action attorneys' fees, and citing Schussler v Schussler (123 A.D.2d 618) it deleted the award for fees incurred in connection with the fee hearing. The
This appeal turns on our interpretation of Domestic Relations Law § 237 (a). The husband argues that the statute leaves no room for the counsel fee awards at issue. The wife contends that it does. We agree with the wife.
Domestic Relations Law § 237 (a) reads:
This enactment, which has deep statutory roots, is designed to redress the economic disparity between the monied spouse and the non-monied spouse. Recognizing that the financial strength of matrimonial litigants is often unequal—working most typically against the wife—the Legislature invested Trial Judges with the discretion to make the more affluent spouse pay for legal expenses
Domestic Relations Law § 237 (a) marks our present place in a long legislative and decisional law journey that carries us to our result.
In 1872, this Court in Griffin v Griffin (47 N.Y. 134) first took up the question of whether a husband may ever be compelled to pay the legal expenses of his wife, in the context of a matrimonial action between them. The Court identified an 1858 statute (referred to as "58 [2 R.S., 148]") which provided that in every suit brought for a divorce or separation, "the court may, in its discretion, require the husband to pay any sums necessary to enable the wife to carry on the suit, during its pendency" (Rev Stat of NY, part II, ch VIII, tit I, art Fifth, § 58 [5th ed 1859]).
In 1876, the Legislature overhauled the body of laws relating to civil procedure, replacing the David Dudley Field Code of 1848 with the Code of Civil Procedure. In section 1769 of the Code of Civil Procedure the Legislature, obviously aware of the deficiencies of the statute as outlined in Griffin, authorized a court, in its discretion, to require "the husband to pay any sum or sums of money, necessary to enable the wife to carry on or defend the action" (emphasis added). Code of Civil Procedure § 1769, however, did not authorize an award of counsel fees for past expenses, so that if a wife had engaged counsel with her own or with borrowed money, she could not gain reimbursement from her husband, inasmuch as these expenditures were "already incurred" (Beadleston v Beadleston, 103 N.Y. 402, 405 ; McCarthy v McCarthy, 137 N.Y. 500, 503 ).
In 1920 the Legislature enacted the Civil Practice Act in place of the Code of Civil Procedure and imported the pertinent provisions of former Code of Civil Procedure § 1769 into Civil Practice Act § 1169, in almost verbatim language. Courts therefore continued to apply the statute as prohibiting any award of counsel fees for past expenses (e.g., Furman v Furman, 18 A.D.2d 659; Nottingham v Nottingham, 209 App Div 459, 461). Furthermore, even under Civil Practice Act § 1169 the wife was not entitled to counsel fees unless she showed a reasonable probability of success on the merits (see, Reiss v Reiss, 18 A.D.2d 1105; Seltzer v Seltzer, 16 A.D.2d 836).
The Legislature addressed these concerns when it transferred the Civil Practice Act's matrimonial law statutes to the Domestic Relations Law in 1962 (L 1962, ch 313; see also, Abstract of 6th Report of Senate Finance Comm, 1962 McKinney's Session Laws of NY, at 3339; 4th Preliminary Report of Advisory Comm on Practice and Procedure, 1960 NY Legis Doc No. 20, at 362-363). It removed the restrictive provisions of Civil Practice Act § 1169, enacting in its place Domestic Relations Law § 237, to allow compensation for past legal services (see, Report of Joint Legis Comm on Matrimonial & Family Laws, 1961 NY Legis Doc No. 19, at 80-81). The courts have since authorized awards
When the Legislature lifted the ban against awarding fees for past legal services it acted on the expressed intent that counsel fee allowances be accorded greater flexibility and judicial discretion (Report of Joint Legis Comm on Matrimonial & Family Laws, 1963 NY Legis Doc No. 34, at 89).
In transferring the counsel fee provisions from Civil Practice Act § 1169 to Domestic Relations Law § 237 (a) the Legislature also deleted the word "necessary" from the statute, removing any requirement or interpretation (see, e.g., Lake v Lake, 194 N.Y. 179) that the less affluent spouse be entirely spent down before being entitled to counsel fees. This advanced the objective that marital litigation is best shaped not by the power of the bankroll but by the power of the evidence. The enactment broadened the discretion of the court, enabling Judges to award counsel fees as justice required, according to the respective circumstances of the parties. In applying Domestic Relations Law § 237, courts have also relieved the less affluent spouse of the need to show a likelihood of success as a strict predicate to a counsel fee award. The award is now measured by circumstances and discretion, irrespective of the outcome at trial (see, e.g., Cassese v Cassese, 197 A.D.2d 605).
Under former Civil Practice Act § 1169 the court was authorized to award counsel fees "during the pendency" of the action. This clause does not appear in Domestic Relations Law § 237. The deletion is critical and supports our conclusion that a court in its discretion may award counsel fees for services and expenses performed or incurred before the action began. The statute allows the court to do so at any time after the start of the action up through the entry of final judgment. Our interpretation is based on the Legislature's obvious and purposeful omission of the phrase "during the pendency," in support of its goal of expanding judicial discretion in allocating legal expenses.
The husband asserts that the Appellate Division properly relied upon Conklin v Conklin (196 App Div 607, supra) in rejecting the award of attorneys' fees for legal services
The husband's other criticism of the award is that it carries the potential for abuse, in the form of additional obligations on the more affluent spouse. The wife counters, compellingly we believe, that the prospect of such an award discourages recalcitrant or unreasonable conduct on both sides, and is tempered by the exercise of sound judicial discretion.
Obviously, a rigid line is easier to administer than one that affords flexibility. But that observation would apply to countless instances in which rulings are the product of judicial discretion rather than mechanical application. Each case will be different, and Judges are skilled in making appropriate distinctions. We conclude that courts have the discretion, in appropriate cases, to grant such awards, based on criteria that include the circumstances of the parties and the reasonableness of their positions.
Given the statutory background and the unswerving direction of the decisional law over the last century and a half, we further hold that the court had discretion to grant counsel fees to the wife for legal services in connection with the hearing to determine the amount of the fee award. This is not to say that awards for legal services for fee hearings should be routinely expected or freely granted any more than those for pre-action services. Again, it is a matter of discretion, to be exercised in appropriate cases, to further the objectives of litigational parity, and to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation (see, Wyser-Pratte v Wyser-Pratte, 160 A.D.2d 290; see also, 12 Scheinkman, New York Law of Domestic Relations § 19.5, at 140). This is in keeping with this Court's holding in DeCabrera v Cabrera-Rosete (70 N.Y.2d 879), that flexibility and judicial discretion are essential devices in adjusting financial disparities in litigation.
Because a party is entitled to resist the opponent's fee application and has a right to a hearing (see, Price v Price, 113 A.D.2d 299, 309, affd 69 N.Y.2d 8), a mere request for a hearing should not carry with it a label of intransigence. It is for the court to make such distinctions. Here Supreme Court acted as it did after concluding that the husband—the considerably more affluent spouse—was to blame for protracting the case.
As the Appellate Division determined that the counsel fees at issue were precluded as a matter of law, the case should be remitted to that Court for its review of the fees awarded by Supreme Court. Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to that Court for further proceedings in accordance with this opinion.
Order, insofar as appealed from, reversed, etc.