Denton v. Barr

Full title: In re Lydia DENTON, Petitioner–Respondent–Appellant, v. Thomas BARR, IV…

Court: Supreme Court, Appellate Division, First Department, New York.

Date published: Nov 29, 2011

89 A.D.3d 630 (N.Y. App. Div. 2011)

933 N.Y.S.2d 269

2011 N.Y. Slip Op. 8635

Opinion

2011-11-29

In re Lydia DENTON, Petitioner–Respondent–Appellant, v. Thomas BARR, IV, Respondent–Appellant–Respondent.

Thomas Barr, IV, Sag Harbor, appellant-respondent pro se. Peter F. Edelman, New York, for respondent-appellant.

MAZZARELLI

Thomas Barr, IV, Sag Harbor, appellant-respondent pro se. Peter F. Edelman, New York, for respondent-appellant.

MAZZARELLI, J.P., ANDRIAS, FRIEDMAN, CATTERSON, FREEDMAN, JJ.

Order, Family Court, New York County (Stella Schindler, J.H.O.), entered on or about August 30, 2010, which awarded petitioner attorney's fees in the amount of $110,000 and child support arrears in the amount of $11,000, unanimously modified, on the law and the facts, to award petitioner $11,742 in child support arrears and $5,322 in interest on the arrears, and to remand the matter for clarification of the amount of attorney's fees awarded to petitioner, and otherwise affirmed, without costs. Order, same court and J.H.O., entered on or about September 15, 2010, which directed that the $110,000 in attorney's fees be paid to petitioner and mailed to the offices of her counsel, unanimously reversed, on the law, without costs, and the order vacated.

On a prior appeal, this Court found, inter alia, that pursuant to the parties' stipulation of settlement, petitioner was “entitled to attorney's fees and we accordingly remand for a hearing to determine the amount of those fees” (69 A.D.3d 24, 32, 886 N.Y.S.2d 22 [2009] ). There is no merit to respondent's argument that petitioner was not entitled to attorney's fees under the terms of the parties' stipulation. However, we find that the court, in determining the amount of fees due to petitioner, relied on documents that constituted inadmissible hearsay, namely, billing statements of respondent's former attorney ( cf. Seinfeld v. Robinson, 300 A.D.2d 208, 209, 755 N.Y.S.2d 69 [2002] ). Indeed, the order fails to specify any other basis for the specific amount awarded. Accordingly, the matter is remanded to the trial court for clarification of the basis for the amount of fees awarded.

Furthermore, the trial court improperly awarded $11,000 in child support arrears. According to the terms of the parties' stipulation, the amount awarded should have totaled $11,742 in arrears and $5,322 in interest on the arrears.

We have considered the parties' remaining contentions and find them unavailing.