What happens when two deserving parties vie over the same zero-sum pot of money?  In this case it is a hard-working attorney with a charging lien and the children in a child-support proceeding upstate.  In Piccarreto v Mura   2013 NY Slip Op 23241   Decided on July 3, 2013   Supreme Court, Monroe County, Judge Dollinger writes a thoroughly researched and well-reasoned discussion of whether the children are better off with attorneys getting paid for collections or with attorneys getting stiffed.
 

"The facts are undisputed. A default divorce occurred in 1993, the husband was ordered to pay child support, and the court in 1993 awarded a judgment for $25,226.72 in unpaid child support. Thereafter, in a series of events described in a prior opinion of this court, the parties engaged in repeated court appearances in the mid-1990s. When the dust settled, the original judgment of divorce remained in full force and effect. In 2012, the wife moved, originally in family court, to recover all the accumulated child support, which with accumulated interest, totaled $549,403.62 as of September 2011."

"There has been no determination what amount of the house sale proceeds are necessary to pay any child support arrears owed by the husband. This court has not heard proof on any claimed offsets against the child support obligation. Furthermore, this court is struck by the current legal position of the wife, who, after delaying 16 years, now seeks to recover child support. The children, who were the intended beneficiaries of the support, are either emancipated or nearly emancipated. In affidavits submitted earlier, the wife suggests she made applications for welfare and food stamps while living at her mother’s house at the time of the divorce in the mid-1990s, but there is no evidence before this court that the wife had incurred any financial consequences as a result of the husband’s failure to pay child support for 16 years. There is no evidence that the children suffered any deprivation because of the husband’s failure to pay child support. Against this background and during the midst of serious settlement negotiations, wife’s counsel moved to withdraw, citing friction with his client and her failure to communicate with him. The attorney also sought judgment for fees in the amount $30,545.91, and a charging lien under Section 475 of the Judiciary Law against the house proceeds set aside by the court under its earlier order.

In advance of the return date of the husband’s motion, the wife retained new counsel, who cross-moved to dismiss the attorney’s claim for a charging lien, and sought disgorgement of the sums advanced to both the wife’s former counsel, and husband’s counsel. Wife’s new counsel argued that those sums were erroneously paid from the "wife’s child support." Wife’s new counsel claims that the prior counsel cannot have a charging lien against child support, and cannot, under any circumstances, be paid attorney fees from the wife’s child support. He argues that the former attorney did not create any "new funds" on which the charging lien under Section 475 of the Judiciary Law could attach because the entire amount owed to the wife was child support and no liens are permitted against child support. Wife’s counsel also disputes the former attorney’s [*3]compliance with several portions of the New York rules of court. "

"Several New York courts have held that an charging lien does not attach to maintenance or alimony. Theroux v. Theorux, 145 AD2d 625 (2nd Dept. 1988). The line of authority regarding liens against maintenance goes back nearly a century to the New York Court of Appeals decision in Turner v. Woolworth, 221 NY 425, 430 (1917): "equity, confining the fund [for alimony] to the purposes of its creation, declines to charge it with liens which would absorb and consume it." See also Indell v. Tabor, 185 NY 873, 874-75 (1920) (attorney not entitled to reach client’s alimony to satisfy his judgment for attorney fees). On the question of the charging lien asserted against child support, there is less judicial authority from New York’s appeals courts. The Appellate Division, Fourth Department suggested that no retaining lien could be asserted against child support arrears. Schelter v. Schelter, 206 AD2d 865, 614 NYS2d 853, 854 (1994) ("if the funds were treated as payments for child support, we would conclude that such payments are not subject to an attorney’s retaining lien").[FN2] While Schelter v. Schelter involved a retaining lien, nonetheless it provides some [*5]indication that attorneys’ liens cannot be enforced against arrears in child support. But the Fourth Department’s omission in Schelter v. Schelter to cite any then-existing New York authority, the acknowledged difference between the common law retaining lien and the broad reach of the statutorily-mandated charging lien in New York leaves the question still somewhat undefined."

Read on in the case for Judge Dollinger’s discussion of California and other states’ law on this issue and how he comes to a compromise.