Opinion
April 19, 1996
Appeal from the Supreme Court, Onondaga County, Hayes, J.
Present — Lawton, J.P., Fallon, Callahan, Doerr and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Pursuant to the separation agreement, incorporated but not merged into the parties' judgment of divorce, defendant was entitled to exclusive possession of the marital residence until her death or until both parties agreed to sell it. Because plaintiff was not in actual or constructive possession of the former marital residence, Supreme Court properly dismissed plaintiff's cause of action for partition ( see, RPAPL 901; Givens v. Givens, 138 A.D.2d 348, 348-349; McNally v. McNally, 129 A.D.2d 686, 687). The court properly dismissed without a hearing plaintiff's cause of action for a reduction in maintenance based on extreme financial hardship ( see, Domestic Relations Law § 236 [B] [9] [b]). Plaintiff's vague and unsupported allegations are insufficient to demonstrate that the support provision previously agreed to by the parties has caused plaintiff extreme financial hardship ( see, Praeger v Praeger, 162 A.D.2d 671, 673-674; Matter of Cohen v. Seletsky, 142 A.D.2d 111, 118-120).
Defendant was not entitled to an award of attorney's fees under the separation agreement, which provides for attorney's fees only in the event of a default. The terms of the separation agreement, however, do not preclude an award of attorney's fees under Domestic Relations Law § 237 (b) ( see, Fischman v. Fischman, 209 A.D.2d 916; Pelkey v. Pelkey, 79 A.D.2d 835, 836, lv denied 53 N.Y.2d 601). Plaintiff cannot avoid paying defendant's attorney's fees under the Domestic Relations Law by characterizing his action as one for declaratory relief where, as here, the complaint seeks to modify the separation agreement by reducing plaintiff's support obligation ( see, Stephenson v. Stephenson, 116 A.D.2d 504, 505-506). The court erred in awarding attorney's fees to defendant, however, because her fee application was not accompanied by a statement of net worth ( see, 22 NYCRR 202.16 [k]; Tacconi v. Tacconi, 197 A.D.2d 929). We therefore vacate that portion of the order and remit the matter to Supreme Court for further consideration after submission of defendant's statement of net worth.