| O'Halloran v O'Halloran |
| 2009 NY Slip Op 00361 [58 AD3d 704] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Melissa B. O'Halloran, Respondent, v John V. O'Halloran,Appellant. |
—[*1] Melissa B. O'Halloran, Islip, N.Y., respondent pro se.
In an action for a divorce and ancillary relief, the defendant appeals (1), as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County (MacKenzie, J.), datedApril 18, 2007, as, after a hearing, granted that branch of the plaintiff's motion which was to holdhim in contempt for failure to comply with so much of a pendente lite order of the same courtdated August 14, 2006 as directed him to pay the real estate taxes on the marital residence, (2)from an order of the same court entered April 20, 2007 which denied his motion for a mistrial,and (3), as limited by his brief, from stated portions of a judgment of the same court entered May22, 2007 which, upon an amended decision of the same court dated April 18, 2007 made after anonjury trial, inter alia, directed him to pay arrears in his pendente lite child support obligation inthe sum of $6,444 and awarded the plaintiff child support in the sum of $692.31 per week, theprincipal sum of $96,501.94, representing 20% of his enhanced earning capacity, sole title to themarital residence, and an attorney's fee in the sum of $20,000.
Ordered that the order dated April 18, 2007 is affirmed insofar as appealed from, withoutcosts or disbursements; and it is further,
Ordered that the appeal from the order entered April 20, 2007 is dismissed, without costs or[*2]disbursements; and it is further,
Ordered that the judgment is modified, on the law and in the exercise of discretion, (1) byadding a provision thereto directing the plaintiff to assume the existing mortgages encumberingthe marital residence that were given in the name of the defendant, in accordance with theamended decision, (2) by deleting the provision thereof directing the defendant to pay pendentelite arrears in the sum of $6,444, and (3) by adding provisions thereto that the defendant isentitled to declare one of the parties' children as a dependent on his income tax returns, anddirecting that the plaintiff execute the appropriate IRS form or forms in connection therewith; asso modified, the judgment is affirmed insofar as appealed from, without costs or disbursements,and the matter is remitted to the Supreme Court, Suffolk County, for a hearing and newdetermination on the issue of arrears in the defendant's pendente lite child support obligation andfor the entry of an amended judgment thereafter.
The appeal from the intermediate order entered April 20, 2007 must be dismissed becausethe right of direct appeal therefrom terminated with the entry of judgment in the action (seeMatter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from that order arebrought up for review and have been considered on the appeal from the judgment (seeCPLR 5501 [a] [1]).
The Supreme Court's determination regarding the defendant's pendente lite child supportarrears was not warranted by the facts (see Northern Westchester Professional Park Assoc. vTown of Bedford, 60 NY2d 492, 499 [1983]), which were not sufficiently developed at trialto enable a reasoned determination of the issue. Under these circumstances, we remit the matterto the Supreme Court, Suffolk County, for a hearing and new determination on that issue.
In its amended decision, the Supreme Court, in explaining its rationale for deciding issuesconcerning the equitable distribution of the marital property, concluded, inter alia, that thedefendant was required to transfer title to the marital residence to the plaintiff. The court alsoconcluded that the plaintiff was required to assume the existing mortgages encumbering themarital residence that were given in the name of the defendant. Although the judgment directedthe defendant to transfer title to the marital residence to the plaintiff, the court failed to include aprovision in the judgment directing the plaintiff to assume the mortgages. Under thesecircumstances, we modify the judgment to correct this inconsistency between the amendeddecision and the judgment (see Pauk v Pauk, 232 AD2d 386, 390-391 [1996]).
Where a noncustodial parent meets all or a substantial part of a child's financial needs, acourt may determine that the noncustodial parent is entitled to declare the child as a dependenton the noncustodial parent's tax returns (see Popelaski v Popelaski, 22 AD3d 735, 738 [2005]). Since bothparties to the instant action are wage earners who each contribute toward the support of their twochildren, the defendant is entitled to claim one of the children as a dependent on his income taxreturns (id. at 738).
The award of an attorney's fee in a matrimonial action is a matter resting within thediscretion of the trial court (see DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]). Inlight of, inter alia, the defendant's greater financial resources, the Supreme Court providentlyexercised its discretion in awarding the plaintiff an attorney's fee in the sum of $20,000 (see Luongo v Luongo, 50 AD3d858, 859 [2008]).
The defendant's remaining contentions are without merit. Florio, J.P., Covello, Balkin andLeventhal, JJ., concur.