From Casetext: Smarter Legal Research

Tito v. Tito

Appellate Division of the Supreme Court of New York, Second Department
Oct 10, 2000
276 A.D.2d 559 (N.Y. App. Div. 2000)

Opinion

Submitted June 2, 2000

October 10, 2000.

In a proceeding pursuant to Family Court Act article 6 to enforce the child visitation provision of a stipulation of settlement dated February 29, 1996, the mother appeals from an order of the Family Court, Nassau County (Eisman, J.), dated May 28, 1999, which denied her motion to vacate an order of the same court, dated December 22, 1998, entered upon her default in appearing at a hearing, granting the father's petition, and awarding him counsel fees in the sum of $4,790.

Philip S. Milone, Forest Hills, N.Y., for appellant.

Before: SONDRA MILLER, J.P., WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.


DECISION ORDER

ORDERED that the order is affirmed, without costs or disbursements.

The Family Court providently exercised its discretion in denying the mother's motion to vacate the order entered upon her default in appearing at the hearing on December 22, 1998. She failed to offer a reasonable excuse for her decision not to appear and failed to demonstrate the existence of a meritorious defense to the father's petition (see, Matter of Violet Crystal F., 270 A.D.2d 163; Matter of Silverman v. Reid, 259 A.D.2d 550; Matter of McCaffrey v. McCaffrey, 210 A.D.2d 409). Furthermore, pursuant to the stipulation of settlement which was incorporated but not merged in the parties ' judgment of divorce, if either party failed to perform his or her obligations under the stipulation, the defaulting party was to indemnify the nondefaulting party for "actual attorney fees" and/or expenses incurred in an enforcement proceeding. Accordingly, upon finding after the hearing that the mother had violated the visitation provisions of the stipulation of settlement, the court properly directed the mother to pay the actual attorney's fees incurred by the father in connection with this proceeding to enforce his visitation rights (see, Matter of Curiel v. Curiel, 262 A.D.2d 639; Zeitlin v. Zeitlin, 250 A.D.2d 607).


Summaries of

Tito v. Tito

Appellate Division of the Supreme Court of New York, Second Department
Oct 10, 2000
276 A.D.2d 559 (N.Y. App. Div. 2000)
Case details for

Tito v. Tito

Case Details

Full title:IN THE MATTER OF JOSEPH TITO, RESPONDENT, v. GINA TITO, APPELLANT

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 10, 2000

Citations

276 A.D.2d 559 (N.Y. App. Div. 2000)
714 N.Y.S.2d 117

Citing Cases

Matter of Wilson v. Kilkenny

However, the father is entitled to an award of an attorney's fee. The mother violated the parties'…

Sieratzki v. Sieratzki

The parties' stipulation included a provision which obligated a defaulting party to reimburse the…