STATE OF NEW YORK
SUPREME COURT : COUNTY OF CHAUTAUQUA
THOMAS B. HEINRICH,
-vs- Index #H-08323
ANGELA M. HEINRICH,
SUE M. EVANS, ESQ.
BRYAN G. BROCKWAY, ESQ.
These parties were divorced in October, 1994.
Subsequently, on April 6, 1995, they reached a resolution of
all remaining issues but attorney fees, and a stipulation was
placed on the record providing for a submission of affidavits
on fees and allowing the Court to make a decision.
Submissions were received from both plaintiff and
defendant. The defendant claims in her affidavit that "it
would be only fair and just for this Court to direct Thomas
B. Heinrich to reimburse to me the $3000.00 that I have had
to pay for my attorney's fees..." At the time the
stipulation was placed on the record, the defendant made a
claim for one thousand dollars. Apparently, now she has
increased that claim to three thousand.
This action was commenced in November, 1993. At that
time, defendant was represented by other counsel to whom she
paid the sum of $1500. Prior to the commencement of the
proceedings, an action had begun in Chautauqua County Family
Court. The defendant's response to these actions was not to
deal with them, but instead to file new actions in Erie
County Family Court and Erie County Supreme Court. The
plaintiff was obliged to incur fees in response to the Erie
Eventually, the parties proceeded under the plaintiff's
original action for divorce in Chautauqua County Supreme
Court. At least two court dates were scheduled where
plaintiff and his attorney were both present, but neither
defendant or her attorney appeared. In addition to having to
incur unnecessary expenses in two separate Erie County
actions, then, the plaintiff incurred expense and wasted time
in having to pay his attorney for two court appearances and
travelling to Mayville when no one appeared on the other
At the October 7, 1994 court appearance, it appeared
that the parties were close to settlement and if defendant or
her attorney had been present, it is possible that the entire
matter would have been concluded.
Subsequently, defendant became dissatisfied with her
representation and sought new counsel. On March 20, 1995,
she retained Bryan Brockway and paid him a $3000.00 retainer
and agreed to pay him at a rate of $150.00 an hour.
This is a short term marriage. The parties were married
in the summer of 1989. Defendant abandoned the marriage in
1991 to continue an extra-marital affair according to the
default testimony. During the time the parties resided
together, the plaintiff adopted defendant's FOUR children.
These children are relatively young, and the plaintiff will
be paying child support for them for many years.
This was not a marriage with many issues or assets, and
after Mr. Brockway became involved, the parties resolved the
issues by stipulation which conformed in large part to the
terms originally proposed the prior October.
The plaintiff has a good income, and defendant is
currently on public assistance. Normally, this Court would
consider a request for attorney fees in this situation to be
routine. However, nothing is routine here.
The defendant claims she is on public assistance due to
a disability. However she never says what the disability is,
provides no proof, does not say if she can work in any
capacity at all nor gives any medical information. During
negotiations, she represented to the Court that she was
injured in a work-related incident. She claimed she did not
file for worker's compensation although eligible, because she
did not want to lose her job.
In addition to the heavy child support ($170.00) the
plaintiff is paying, he pays support ($40.00) for his own
child from a previous marriage and has significant debts and
substantial judgments against him. After deductions and
garnishments, he ends up with insufficient resources to allow
him to get himself out of debt. It is unlikely that he will
be able to improve this situation for some time, if ever.
Finally, there is the amount of Mr. Brockway's bill
itself. There were no trials in this matter. Mr. Brockway
did not have to deal with complex issues, complicated
discovery or extended negotiations. Basically, he had to
educate himself about the case and then proceed to wrap up
the loose ends. He has not provided an itemized bill, a
retainer agreement or any document required to obtain
attorney fees under the new matrimonial rules. He provides,
in fact, no breakdown at all of services! Three thousand
dollars would be high for such a short period of
representation in any case, but here we do not even know what
it consists of. The defendant in her affidavit makes mention
of services received by Mr. Brockway's legal assistant, but
we have no information as to her hourly rate or how much of
the work was actually performed by her.
The defendant created many of her own problems, and her
attorney's papers are insufficient on their face. It is this
Court's decision that Mr. Heinrich should not have to
contribute to Mrs. Heinrich's attorney fees.
Submit order accordingly.
Dated: July 6, 1995
Mayville, New York
Justice of Supreme Court