-vs- Index #H-08323





for Plaintiff


for Defendant



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

County actions.

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