Opinion
March 11, 1996
Appeal from the Supreme Court, Nassau County (J. Goldstein, J.).
Ordered that the order is reversed, on the law, with costs, that branch of the plaintiff's motion which was to direct the defendant to contribute to the cost of sleep-away camp for the parties' children is denied, and the matter is remitted to the Supreme Court, Nassau County, for a hearing on the issue of counsel fees.
The plaintiff moved to compel the defendant to comply with certain provisions of a stipulation of settlement which was incorporated, but not merged, into their judgment of divorce. Most of the issues were resolved by the parties. The Supreme Court directed a hearing on the issue of whether the defendant was responsible for sleep-away camp expenses.
The stipulation provided that "[t]he husband shall be responsible for the payment of the children's day camp expenses until such child reaches the age of 13 years". The stipulation did not obligate the defendant to contribute to the cost of sleep-away camp and therefore the court improperly directed the defendant to do so (see, Straker v Straker, 219 A.D.2d 707; Kromer v Kromer, 177 A.D.2d 472; Cooper v Farrell, 170 A.D.2d 571).
Although the Supreme Court has the discretionary power to award counsel fees, the exercise of that power must be supported by sufficient facts upon which a proper determination as to the amount claimed or amount being awarded can be based (see, Osborn v Osborn, 144 A.D.2d 350, 352). An award of counsel fees on the basis of affirmations alone was improper in the absence of a stipulation agreeing to that procedure (see, Lenczycki v Alexander, 209 A.D.2d 480, 482; Silverman v Silverman, 193 A.D.2d 595). Accordingly, the matter is remitted to the Supreme Court, Nassau County, for a hearing solely on that issue. O'Brien, J.P., Santucci, Altman and Goldstein, JJ., concur.