Opinion
2012-10-10
Anthony TERRANOVA, appellant, v. Kimberly TERRANOVA, respondent; Rosenthal & Markowitz, LLP, nonparty–respondent.
Robert G. Smith, New York, N.Y., for appellant. Annette G. Hasapidis, South Salem, N.Y., for nonparty-respondent.
Robert G. Smith, New York, N.Y., for appellant. Annette G. Hasapidis, South Salem, N.Y., for nonparty-respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Walker, J.), entered January 24, 2011, as granted the defendant's motion for an award of counsel fees to the extent of directing him to pay counsel fees in the total sum of $69,132.91, and denied his cross motion for the imposition of sanctions.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendant's motion for an award of counsel fees to the extent of directing the plaintiff to pay counsel fees in the total sum of $69,132.91; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith.
Contrary to the plaintiff's contention, considering the disparity in the parties' incomes, the Supreme Court providently exercised its discretion in requiring the plaintiff to pay counsel fees the defendant incurred in litigating her child custody and relocation applications ( seeDomestic Relations Law § 237[a]; O'Shea v. O'Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8, 711 N.E.2d 193;Chesner v. Chesner, 95 A.D.3d 1252, 1253, 945 N.Y.S.2d 409;Prichep v. Prichep, 52 A.D.3d 61, 64–65, 858 N.Y.S.2d 667).
However, the Supreme Court erred in awarding counsel fees to the defendant without conducting an evidentiary hearing at which the court may test the claims of the defendant's counsel regarding the extent and value of its services ( see Nee v. Nee, 240 A.D.2d 478, 479, 658 N.Y.S.2d 440). An award of counsel fees on the basis of affirmations alone was improper in the absence of a stipulation agreeing to that procedure ( see GAB Mgt. v. Blumberg, 226 A.D.2d 499, 501–502, 641 N.Y.S.2d 340;Fishkin v. Fishkin, 201 A.D.2d 202, 208, 615 N.Y.S.2d 899;Silverman v. Silverman, 193 A.D.2d 595, 597 N.Y.S.2d 455;cf. Brodsky v. Brodsky, 214 A.D.2d 599, 600, 624 N.Y.S.2d 960). Accordingly, the matter must be remitted to the Supreme Court, Westchester County, for a hearing on that issue and thereafter a new determination of the defendant's motion.
To the extent that the plaintiff contends that the award of counsel fees by the Supreme Court included fees for time spent attempting to set aside the parties' prenuptial agreement, we note that the Supreme Court found that the defendant is not entitled to counsel fees incurred in attempting to set aside the parties' prenuptial agreement ( see Kessler v. Kessler, 33 A.D.3d 42, 49–50, 818 N.Y.S.2d 571).
The Supreme Court did not improvidently exercise its discretion in denying the plaintiff's cross motion for the imposition of sanctions ( see22 NYCRR 130–1.1).