In Abadi v. Abadi (48 Misc 3d 380, 8 NYS3d 888 [Sup Ct, Kings County 2015]), the applicant had previously incurred significant fees and owed substantial sums to his prior attorneys.

His wife argued that he had a Master's degree from an Ivy League university, earned $135,000 at one point, had no evidence of any recent debt (an indication he was supported by his family), and had flown back and forth to Panama on a regular basis.

The court concluded that the father was entitled under the Judiciary Law to court-appointed counsel, but not without acknowledging competing considerations.

The court noted:

"This court has some very serious concerns as to whether or not taxpayer funds should be utilized to provide counsel to an individual though who holds an MBA from one of the most prestigious business schools in the country, especially where he does not adequately explain why he has not obtained commensurate employment either here or in Panama. It is true that he appears to spend a substantial amount of time in preparation of court documents and litigation." (Id. at 385.)

While the court erred on the side of caution and appointed counsel, it nonetheless suggests that unrealized employment income could be a factor in any court's consideration when appointing counsel:

"The court cautions the defendant of his ongoing obligation to seek employment and that in these austere budgetary times the utilization of government funds must be tempered with providing those who are truly in need of appointment of counsel. . . ."The use of public funds to pay for counsel brings forth the question as to when it is appropriate to appoint counsel when it appears that an individual should be employed.

"While this court has acted herein on the side of caution, it must be recognized that the defendant has an obligation to seek employment and if he chooses not to utilize the advanced degree he holds, then his obligation to seek other employment not in his chosen profession is paramount. . . .

"The use of taxpayer funds because he chooses not to be employed or . . . if he cannot locate employment utilizing his MBA degree from the Wharton School of Business of the University of Pennsylvania then he must seek other employment. The right to counsel appointed by the court is not limitless and those resources must be utilized for those who truly cannot afford counsel." (Id. at 387-388.)

In erring on the side of caution, the court did appoint counsel, but reserved the right to assess the applicant the cost of counsel at the conclusion of the matter. (Id. at 388.)