| Dow v Dow |
| 2011 NY Slip Op 00075 [80 AD3d 848] |
| January 6, 2011 |
| Appellate Division, Third Department |
| Bradford Rathbone Dow, Appellant, v Janet Lee Dow,Respondent. |
—[*1] Blatchly & Simonson, New Paltz (Jon A. Simonson of counsel), for respondent.
Stein, J. Appeals (1) from that part of a judgment of the Supreme Court (Cahill, J.), enteredAugust 25, 2009 in Ulster County, which, among other things, awarded defendant counsel fees,and (2) from a judgment of said court, entered September 15, 2009 in Ulster County, whichawarded defendant a money judgment.
The parties are formerly husband and wife. After plaintiff commenced an action for divorce,the parties—both of whom were represented by counsel—entered into a writtenmarital agreement, which was amended by an oral stipulation of settlement made in open court(see CPLR 2104). The agreement and stipulation resolved all issues between the parties,with two exceptions, only one of which—whether plaintiff should be required tocontribute to the counsel fees incurred by defendant in connection with the matrimonialaction—is relevant here. As to that issue, the marital agreement provided that defendantwould have the right to make an application to Supreme Court for an award of counsel feespayable by plaintiff "by motion on notice to the attorney for the [plaintiff] according to themotion practice provisions of the Civil Practice Law and Rules, or as otherwise directed by the[c]ourt [and that] [t]he [plaintiff would] have the right to oppose such motion." Pursuant to theagreement, the award of counsel fees made by the court, if any, would be reduced to a moneyjudgment against plaintiff if defendant so requested. The oral stipulation also reiterated thatdefendant would be making an application to the court for an award of counsel fees.
Defendant thereafter filed a motion and supporting affidavits seeking an award of [*2]counsel fees in the amount of $12,709.44, and plaintiff opposedsuch application. Supreme Court granted defendant's motion, directed plaintiff to pay the saidsum within 30 days and further directed that, upon plaintiff's failure to do so, defendant would beentitled to entry of a judgment therefor. A judgment of divorce was subsequently entered that,among other things, incorporated the marital agreement, stipulation of settlement and counsel feeorder. A money judgment was later entered against plaintiff for the amount of the counsel fees.Plaintiff now appeals from the judgment of divorce and from the money judgment.
We affirm. As limited by his brief, plaintiff argues that Supreme Court should not have madean award of counsel fees in the absence of an evidentiary hearing. Under the particularcircumstances of this case, we disagree. The marital agreement set forth the procedure fordefendant's counsel fee application and is bereft of any mention of a hearing. Likewise, the oralstipulation made no provision for a hearing on the application.[FN*]Because the record demonstrates that the parties stipulated to having Supreme Court make adetermination on the basis of written submissions only, the court was authorized to do so (see Bush v Bush, 46 AD3d 1140,1141 [2007]; Yarinsky v Yarinsky,2 AD3d 1108, 1110 [2003]). Furthermore, inasmuch as plaintiff did not object to theprocedure established by the parties and failed to request an evidentiary hearing at any time priorto the court's determination regarding defendant's entitlement to an award of counsel fees, hewaived his right to a hearing on the issue (see Matter of Van Horn v Dahoda, 272 AD2d791, 792 [2000]; Stricos v Stricos, 263 AD2d 659, 661-662 [1999]). In any event, weconclude that an adequate evidentiary basis existed for Supreme Court, in its discretion, toevaluate the respective financial circumstances of the parties and the value of the servicesrendered by defendant's counsel based upon the parties' written submissions (see Yarinsky v Yarinsky, 25 AD3d1042, 1042 [2006]; see also Domestic Relations Law § 237 [a]; DeCabrerav Cabrera-Rosete, 70 NY2d 879, 881 [1987]). Accordingly, we find no abuse of discretionthat would warrant our intervention.
We have reviewed plaintiff's remaining contentions and, to the extent they are properlybefore us, find them to be without merit.
Spain, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgments areaffirmed, without costs.
Footnote *: This is in contrast to theprocedure established in the stipulation for determination of the other unresolved issue.