| Crook v Crook |
| 2011 NY Slip Op 05445 [85 AD3d 958] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Catherine Crook, Appellant, v K. Eric Crook,Respondent. |
—[*1] Penny S. Slomovitz-Glaser, Holtsville, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment dated February 11,2008, the plaintiff appeals, as limited by her brief, from so much of an order of the SupremeCourt, Suffolk County (LaSalle, J.), dated June 29, 2010, as denied her motion pursuant toDomestic Relations Law former § 237 for an award of postjudgment counsel fees.
Ordered that the order is affirmed insofar as appealed from, with costs.
The parties were divorced by judgment dated February 11, 2008. The defendant formerhusband moved, among other things, to vacate the child support provisions of a stipulation ofsettlement which had been incorporated but not merged into the judgment of divorce. TheSupreme Court granted that branch of the motion which was to vacate the child supportprovisions on the ground that they failed to comply with the Child Support Standards Act. Theplaintiff former wife subsequently moved for an award of postjudgment counsel fees. In the orderappealed from, the Supreme Court, inter alia, denied the plaintiff's motion. We affirm the orderinsofar as appealed from.
"The decision to award . . . [an] attorney's fee lies, in the first instance, in thediscretion of the trial court and then in the Appellate Division whose discretionary authority is asbroad as [that of] the trial court" (O'Brien v O'Brien, 66 NY2d 576, 590 [1985]; see Ciociano v Ciociano, 54 AD3d797, 797 [2008]). "[I]n exercising its discretionary power to award counsel fees, a courtshould review the financial circumstances of both parties together with all the othercircumstances of the case, which may include the relative merit of the parties' positions"(DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]; see Ciociano vCiociano, 54 AD3d at 797; Ferraro v Ferraro, 257 AD2d 596, 598 [1999]). Under thecircumstances present here, including the distributive award which the plaintiff received pursuantto the parties' stipulation, the Supreme Court providently exercised its discretion in denying theplaintiff's motion for an award of counsel fees (see Natole v Natole, 256 AD2d 558, 559[1998]; McDougall v McDougall, 129 AD2d 685, 686 [1987]; see also Charap v Willett, 84 AD3d1000, 1003 [2011]; Alton vAlton, 83 AD3d 972, 974 [2011]; Dempster v Dempster, 236 AD2d 582, 583[1997]; Morton v Morton, 130 AD2d 558, 560 [1987]). Rivera, J.P., Eng, Roman andMiller, JJ., concur.