Opinion
CAF 03-00392
October 2, 2003.
Appeal from that part of an order of Family Court, Monroe County (O'Connor, J.), entered June 5, 2002, that denied counsel fees to respondent.
UNDERBERG KESSLER LLP, ROCHESTER (SHARON P. STILLER OF COUNSEL), FOR RESPONDENT-APPELLANT.
DUTCHER HAGELBERG ZATKOWSKY, ROCHESTER (MICHAEL T. HAGELBERG OF COUNSEL), FOR PETITIONER-RESPONDENT.
KATHLEEN M. CONTRINO, LAW GUARDIAN, NORTH TONAWANDA, FOR ALEXA M.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Family Court, Monroe County, for further proceedings in accordance with the following Memorandum:
Family Court erred in denying counsel fees to respondent without first conducting a hearing on the relative equities and financial circumstances of the parties ( see Domestic Relations Law 237; Matter of Mullen v. Just, 288 A.D.2d 476, 477, lv denied 97 N.Y.2d 613, cert denied 537 U.S. 820). "In the final fixation of counsel fees, the court should base its determinations upon testimonial and other trial evidence of the financial condition of the parties * * * unless the parties have stipulated otherwise" ( Olsan v. Olsan, 100 A.D.2d 776, 777, appeal dismissed 63 N.Y.2d 649; see Oswald v. Oswald, 154 A.D.2d 817, 819; Ryan v. Ryan, 92 A.D.2d 889). In the absence of anything in the record that could be construed as a stipulation for the court to determine the issue of counsel fees without an evidentiary hearing, we reverse the order insofar as appealed from and remit the matter to Family Court, Monroe County, to conduct such a hearing.