| McMahan v McMahan |
| 2009 NY Slip Op 07803 [66 AD3d 969] |
| October 27, 2009 |
| Appellate Division, Second Department |
| David Bruce McMahan, Appellant-Respondent, v ElenaMcMahan, Respondent-Appellant. |
—[*1]
In an action for a divorce and ancillary relief, the plaintiff appeals from so much of an orderof the Supreme Court, Westchester County (Lubell, J.), entered March 6, 2008, as granted thatbranch of the defendant's motion which was for an award of interim counsel fees in the sum of$100,000, and denied that branch of his motion which was to enforce a provision of the parties'stipulation of settlement which required the defendant to pay 100% of the expenses of employinga mutually selected childcare provider, and the defendant cross-appeals from so much of thesame order as granted that branch of her motion which was for an award of interim counsel feesonly to the extent of awarding her the sum of $100,000.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
The plaintiff's contention that the parties' stipulation of settlement required the defendant toemploy a mutually selected childcare provider could have been raised on his prior appeal froman order dated November 30, 2007, which was dismissed for failure to prosecute. Nevertheless,we exercise our discretion to determine the issue on the instant appeal (see Faricelli v TSSSeedman's, 94 NY2d 772, 774 [1999]; Rubeo v National Grange Mut. Ins. Co., 93NY2d 750 [1999]). On the merits, we reject the plaintiff's contention. A plain reading of theprovision at issue reflects that the intention was to require the defendant to pay 100% of theexpenses of a childcare provider if she employed one, and not, as the plaintiff argues, to actuallyrequire her to employ such a childcare provider.
Furthermore, since the provision of the stipulation of settlement providing that each partywas responsible for his or her own counsel fees was drafted in the past tense, referring to fees for"services rendered," we agree with the defendant that such provision did not bar her request foran award of interim counsel fees for litigation between the parties which post-dated theagreement. Finally, the Supreme Court did not improvidently grant the defendant's request for anaward of interim counsel fees in light of the undisputed significant disparity in the parties'financial circumstances, and we reject the defendant's contention that the amount awarded to herwas inadequate (see Domestic Relations Law § 237 [a]; Prichep v Prichep, 52 AD3d 61[2008]). Rivera, J.P., Florio, Eng and Leventhal, JJ., concur.
Motion by the respondent-appellant on an appeal and cross appeal from an order of theSupreme Court, Westchester County, entered March 6, 2008, in effect, to dismiss the appeal. Bydecision and order on motion of this Court dated November 5, 2008, the motion was held inabeyance and referred to the Justices hearing the appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal and cross appeal, it is
Ordered that the motion is denied. Rivera, J.P., Florio, Eng and Leventhal, JJ., concur.