Opinion
March 1, 1971
In an action for a separation, defendant husband appeals, as limited by his notice of appeal and his brief, from so much of a judgment of the Supreme Court, Kings County, entered February 20, 1970, granting plaintiff a separation, as (1) directed that defendant pay plaintiff $1,500 as an additional counsel fee, (2) awarded plaintiff two bank accounts and (3) failed to determine the interests of the parties in three Israeli bonds in their joint names. Judgment modified, on the law and the facts, by reducing the award of an additional counsel fee to $1,000 and by striking therefrom the fifth decretal paragraph, which awarded the two bank accounts to plaintiff. As so modified, judgment affirmed insofar as appealed from, without costs; and, as to said bank accounts and said Israeli bonds, new trial granted to determine the title and interests of the parties to this property and for rendition of an amended judgment after determination of those issues. Plaintiff was granted a separation after a six-day trial and was awarded an additional counsel fee of $1,500, two bank accounts and other property. Under the Civil Practice Act (§ 1169) no past counsel fees could be awarded without a reservation therefor in the order pendente lite ( Sussman v. Sussman, 13 A.D.2d 464; Furman v. Furman, 18 A.D.2d 659). Section 237 (subd. [a], par. [6]) of the Domestic Relations Law, however, permits the court to make an award for past legal services: "in the final judgment * * * or by one or more orders from time to time before final judgment, or by both such order or orders and the final judgment." A further award would therefore be proper in a case such as this, where the extent of the services rendered could not have been contemplated at the time of the making of the original order. In our opinion, however, the award of $1,500 was excessive and should be reduced to $1,000. The trial court, in awarding the bank accounts to plaintiff, failed to state the facts upon which its decision was based, as required by CPLR 4213 (subd. [b]). The accounts, originally in the names of both parties, were closed by plaintiff, who opened new accounts in her name, in trust for their children. No provision was made for three Israeli bonds, in the joint names of the parties and in plaintiff's possession. While this court has the power to make any findings warranted by the record (CPLR 5501, subd. [c]), we are of the opinion that a new trial should be had on the limited issues above set forth, wherein the facts may be more fully developed than they appear in the appendix now before us. Hopkins, Acting P.J., Shapiro, Christ, Brennan and Benjamin, JJ., concur.