Enforcement of Rights Attorneys Fees

A party who has been forced to resort to the judicial process to secure compliance with the terms of an order or judgment is entitled to her reasonable attorney fees even absent a showing of inability to pay. The trial court has no discretion as to whether to award reasonable attorney fees and costs incurred in enforcement of its orders, for if the failure to pay was without cause of justification, the award of reasonable attorney fees is mandatory. Where defendant's net income was higher than plaintiff's, where plaintiff had the custodial expense of her son, and where defendant's actions required plaintiff to be involved in substantial judicial processes to enforce her rights, the trial court's ruling denying plaintiff's request for fees and costs was against the manifest weight of the evidence. An order for attorney fees under subsection (b) of this section does not permit the balancing tests normally applicable to the question of attorney fees; instead, under this subsection, the court is simply to decide what the costs and reasonable attorney fees of the prevailing party are and to order them paid by the party found to have failed to comply with the order or judgment without cause or justification.

The legislature in tended this result to serve as a sanction against parties in marital cases who willfully disobey court orders. Where husband was found in contempt for failing to comply with a dissolution order, the trial court correctly found that wife was entitled to an award for attorney fees incurred in connection with the enforcement of that order, regardless of husband's ability to pay. Given that the instant action was brought to enforce the agreement which was made a part of the order of dissolution and that subsection (b) of this section does not require the court to determine the financial abilities of the parties prior to awarding attorney fees in such actions, the trial court was not required to consider the financial ability of petitioner to pay her attorney fees. A party who must seek court enforcement of the terms of a judgment of dissolution is entitled to reasonable attorney fees, even absent a showing of that party's inability to pay the fees and the other party's ability to pay, where the failure to comply with the terms of the judgment is without cause or justification. Subsection (b) is a mandatory provision by which the trial court must, in a child support enforcement proceeding, order the noncustodial parent to pay the custodial parent's costs and reasonable attorney fees.

Where an ex-husband received a cash disbursement of his pension plan, he should have honored his divorce settlement agreement and divorce decree and paid to his deceased ex-wife estate the portion due her under the agreement; since the estate was obligated to bring suit and appeal to enforce the decree and agreement, the estate of the deceased was entitled to recover attorney fees. While respondent may not have willfully and contemptuously miscalculated when he multiplied $50 per week by four weeks to arrive at his payment of $200 per month, the respondent failed to pay without cause or justification and therefore was obligated to reimburse petitioner for reasonable attorney fees. Where the trial court explicitly found that husband's failure to pay child support was without cause or justification, no finding of wife's financial circumstances was necessary by the court in order to award her attorney fees pursuant to this section. A party who must use judicial process to enforce rights under and to secure compliance with, the terms of a divorce judgment is entitled to reasonable attorney fees, even absent a showing of the party's inability to pay.

New York City divorce and family law firm handling divorce and family law cases throughout New York City and the surrounding areas. Results driven law firm with experience and skill to handle the most difficult cases. Divorce Lawyers New York