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COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT).

The First Department, reversing Family Court, determined mother was entitled to a hearing on her motion for attorney’s fees in this divorce action (mother sought $174,000). Family Court had dismissed mother’s motion. The First Department held that Family Court should have looked at the future earning capacity of the parties rather than their earning capacity at the time of the decision:

The purpose of awarding counsel fees is to further the objectives of “litigational parity” and prevent a more affluent spouse from considerably wearing down the opposition … . In its dismissal of the mother’s motion for counsel fees, the court unduly relied upon the financial circumstances of the parties at the time it rendered its decision rather than weighing the historical and future earning capacities of both parties … . Here, although the father was unemployed at the time the court’s decision was rendered, and the mother had secured employment, the father earned considerably more than the mother during the course of their relationship and has significantly more expected earning capacity than the mother. Indeed, the financial and tax documents in the record support such a conclusion. The father, however, is entitled to a hearing so that the relative financial positions of the parties and the value and extent of the counsel fees requested can be examined … . Matter of Brookelyn M. v Christopher M., 2018 NY Slip Op 03801, First Dept 5-29-18

​FAMILY LAW (ATTORNEY’S FEES, COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT))/ATTORNEY’S FEE (FAMILY LAW, COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT))

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