| Fredericks v Fredericks |
| 2011 NY Slip Op 05662 [85 AD3d 1107] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Waverly Fredericks, Appellant, v Suncerae Fredericks,Respondent. |
—[*1] Yisroel Schulman, New York, N.Y. (Anya Emerson of counsel), for respondent.
In an action for a divorce and ancillary relief, in which the parties entered into a stipulation ofsettlement in open court on December 16, 2009, the plaintiff appeals from an amended order ofthe Supreme Court, Suffolk County (MacKenzie, J.), dated March 8, 2010, which awarded thedefendant counsel fees in the sum of $15,000 and directed that he pay retroactive child support inthe sum of $24,199.20 and arrears of his pro rata share of certain child care expenses in the sumof $1,666.
Ordered that the amended order is modified, on the law, by deleting the provision thereofdirecting that the plaintiff pay retroactive child support in the sum of $24,199.20, andsubstituting therefor a provision directing that the plaintiff pay retroactive child support in thesum of $13,225.40; as so modified, the amended order is affirmed, with costs to the defendant,and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriatesecond amended order in accordance herewith.
"An award of counsel fees pursuant to Domestic Relations Law § 237 (a) is a matterwithin the sound discretion of the trial court, and the issue 'is controlled by the equities andcircumstances of each particular case' " (Prichep v Prichep, 52 AD3d 61, 64 [2008], quoting Morrissey vMorrissey, 259 AD2d 472, 473 [1999]). In determining whether to award counsel fees, thecourt should "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 Johnson v Chapin, 12 NY3d461, 467 [2009]). A counsel fee award generally will be warranted where there is asignificant disparity in the financial circumstances of the parties (see Cohen v Cohen, 73 AD3d 832,834 [2010]; Prichep v Prichep, 52 AD3d at 65). The court may also consider "whethereither party has engaged in conduct or taken positions resulting in a delay of the proceedings orunnecessary litigation" (Prichep v Prichep, 52 AD3d at 64; see Quinn v Quinn, 73 AD3d 887[2010]).
Here, the record reflects that the defendant's income was less than half that of the plaintiff.The record also reflects that the plaintiff engaged in unnecessary litigation by contesting thedefendant's motion to set aside the parties' initial stipulation of settlement, the terms of which[*2]were manifestly unfair to her. Accordingly, given the equitiesand circumstances of the case, the Supreme Court providently exercised its discretion inawarding the defendant $15,000 in counsel fees, which was less than one third the sumrequested.
The Supreme Court properly determined that the defendant was entitled to an award of childsupport retroactive to March 28, 2008, the date of her pendente lite motion (see Groesbeck v Groesbeck, 51 AD3d722, 724 [2008]). The Supreme Court also properly credited the plaintiff for his payments ofthe carrying charges on the marital residence, made pursuant to a pendente lite order datedOctober 8, 2008 (cf. Skladanek vSkladanek, 60 AD3d 1035, 1037 [2009]; Grasso v Grasso, 47 AD3d 762, 764 [2008]). However, theSupreme Court erred in calculating the amount of retroactive child support based on the ChildSupport Standards Act (CSSA) guidelines (see Domestic Relations Law § 240[1-b] [c]). The parties entered into a binding stipulation of settlement in open court on December16, 2009, in which they knowingly and properly opted out of the provisions of the CSSA (seeMauriello v Mauriello, 301 AD2d 505 [2003]) and agreed that the plaintiff's child supportobligation would be $1,705 per month (see Domestic Relations Law § 240 [1-b][h]). Therefore, the Supreme Court should have calculated the amount of retroactive childsupport based on that figure, resulting in an award of $13,225,40. We remit the matter to theSupreme Court, Suffolk County, so that the court may determine whether that sum is to be paidin installments or in a lump sum (see Domestic Relations Law § 236 [B] [7] [a]; Miklos v Miklos, 39 AD3d 826,827-828 [2007]; Koeth v Koeth, 309 AD2d 786, 787 [2003]).
The Supreme Court properly directed the plaintiff to pay the sum of $1,666, representingarrears of his pro rata share of day care expenses for the parties' daughter. Mastro, J.P., Belen,Sgroi and Miller, JJ., concur.