| Brantly v Brantly |
| 2011 NY Slip Op 08315 [89 AD3d 881] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Pruda E. Brantly, Respondent, v Dean L. Brantly,Appellant. |
—[*1] Pruda E. Brantly, now known as Pruda E. Vingoe, Poughkeepsie, N.Y., respondent pro se. Diane P. Foley, Wappingers Falls, N.Y., Attorney for the Child.
In a matrimonial action in which the parties were divorced by judgment dated December 24, 2007,the defendant former husband appeals (1), as limited by his brief, from so much of an order of theSupreme Court, Dutchess County (Sammarco, J.), dated September 15, 2010, as denied, without ahearing, those branches of his motion which were to recover sums expended on repairs to the formermarital residence and in connection with the failure of the plaintiff former wife to permanently relocate toFlorida, and (2) from an amended money judgment of the same court entered April 29, 2011, which,upon an order of the same court dated February 10, 2011, granting the plaintiff's cross motion for anaward of counsel fees to the extent of awarding her 75% of the fees sought, is in favor of the plaintiffand against him in the principal sum of $14,979.24.
Ordered that on the Court's own motion, the notice of appeal from the order dated February 10,2011, is deemed a premature notice of appeal from the amended money judgment entered April 29,2011 (see CPLR 5520 [c]); and it is further,
Ordered that the order dated September 15, 2010, is affirmed insofar as appealed from; and it isfurther,
Ordered that the amended money judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The parties were divorced by a judgment dated December 24, 2007. A stipulation of settlementdated May 1, 2007, was incorporated, but not merged, into the judgment of divorce. The stipulation ofsettlement was a comprehensive agreement, fully resolving issues of equitable distribution which couldhave been raised by the parties or could be raised in the future.[*2]
In March 2009 the defendant former husband moved by orderto show cause for various relief. After a conference during which certain issues were resolved, themotion was inadvertently marked as disposed. The defendant submitted another motion and the plaintiffformer wife cross-moved for an award of counsel fees expended in defense of the motions. In an orderdated September 15, 2010, the Supreme Court considered all of the defendant's outstanding requestsfor relief as one motion. The Supreme Court, inter alia, denied certain branches of the defendant'smotion and referred other issues for a hearing. Insofar as relevant here, the Supreme Court denied,without a hearing, those branches of the defendant's motion which were to recover sums expended onrepairs to the former marital residence and in connection with the plaintiff's failure to permanentlyrelocate to Florida. The Supreme Court reserved decision on the plaintiff's cross motion for an awardof counsel fees until after the hearing. The defendant appeals from so much of the order datedSeptember 15, 2010, as denied, without a hearing, those branches of his motion.
At the hearing on the remaining issues, the Supreme Court denied the remainder of the defendant'smotion from the bench. The parties submitted the issue of counsel fees on affidavits. In an order datedFebruary 10, 2011, the Supreme Court granted the plaintiff's cross motion to the extent of awardingher 75% of the counsel fees sought. The defendant also appeals from that order. After he failed to paythe counsel fees as directed by the Supreme Court, an amended money judgment was entered againstthe defendant for the principal amount of the counsel fee award.
The Supreme Court properly denied, without a hearing, those branches of the defendant's motionwhich were to recover for sums expended on repairs to the former marital residence and in connectionwith the plaintiff's failure to permanently relocate to Florida. A stipulation of settlement that isincorporated but not merged into a judgment of divorce is a separate and independent contract, and isenforceable as such (see Kleila v Kleila, 50 NY2d 277, 283 [1980]; Matter of Burke v Burke, 81 AD3d642, 643 [2011]; Shanon vPatterson, 38 AD3d 519 [2007]). Courts cannot not rewrite the unambiguous terms of amarital stipulation of settlement to distribute items which were not provided for in the stipulation (see Pulaski v Pulaski, 22 AD3d 820,821 [2005]; Pellino v Pellino, 308 AD2d 522, 523 [2003]; Cole-Hatchard vCole-Hatchard, 294 AD2d 529, 530 [2002]; Cohen-Davidson v Davidson, 291 AD2d474, 475 [2002]; Cappello v Cappello, 286 AD2d 360, 361 [2001]). There were noprovisions in the stipulation of settlement entitling the defendant to the requested relief. The repairswhich he undertook were not contemplated in the stipulation of settlement, and the plaintiff's permanentrelocation was not required.
The Supreme Court providently exercised its discretion in granting the plaintiff's cross motion for anaward of counsel fees to the extent of awarding her 75% of the fees sought. "The award of reasonablecounsel fees is a matter within the sound discretion of the trial court. The issue of counsel fees iscontrolled by the equities and circumstances of each particular case, and the court must consider therelative merits of the parties' positions and their respective financial positions in determining whether anaward is appropriate" (Dellafiora vDellafiora, 54 AD3d 715, 716 [2008] [internal quotation marks omitted]; seeDomestic Relations Law § 237 [b]; DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881[1987]; Crook v Crook, 85 AD3d958, 959 [2011]; Ciociano vCiociano, 54 AD3d 797 [2008]; Ferraro v Ferraro, 257 AD2d 596, 598 [1999])."The court may also consider whether either party has engaged in conduct or taken positions resulting ina delay of the proceedings or unnecessary litigation" (Dellafiora v Dellafiora, 54 AD3d at716-717; see Timpone v Timpone, 28AD3d 646 [2006]; Morrissey v Morrissey, 259 AD2d 472, 473 [1999]). The evaluationof what constitutes reasonable fees is a matter within the sound discretion of the trial court, it being "inthe best position to judge the factors integral to determining counsel fees, such as the time, effort, andskill required" (Lodovico v Lodovico, 51AD3d 731, 732 [2008]; see Tarone vTarone, 59 AD3d 434, 435 [2009]).
Here, the Supreme Court properly considered the relevant factors in determining that an award of75% of the fees sought was appropriate (seeMatter of Grald v Grald, 33 AD3d 922, 923 [2006]; Shen v Shen, 21 AD3d 1078, 1080 [2005]; cf. Matter of Olesh vAuerbach, 227 AD2d 406, 406-407 [1996]). The submissions of the plaintiff and her counselwere sufficient (see Domestic Relations Law § 237 [b]), and the failure to submit aretainer agreement was not fatal to the cross motion (cf. 22 NYCRR 202.16 [c] [1]).[*3]
The defendant's remaining contentions are without merit.Rivera, J.P., Dickerson, Eng and Roman, JJ., concur.