| Cotton v Cotton |
| 2012 NY Slip Op 00321 [91 AD3d 697] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| David G. Cotton, Respondent, v Janet H. Cotton,Appellant. |
—[*1] Fass & Greenberg, LLP, Garden City, N.Y. (John P. Whiteman III of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment dated May 21, 1997,the defendant appeals from so much of an order of the Supreme Court, Queens County (Strauss,J.), dated August 3, 2010, as denied those branches of her cross motion which were for leave toconduct third-party depositions and for an award of an attorney's fee.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof denying that branch of the defendant's cross motion which was for an awardof an attorney's fee, and substituting therefor a provision holding that branch of the cross motionin abeyance pending hearing and determination of the plaintiff's motion for a downwardmodification of his maintenance obligation; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
On April 30, 1996, after a 26-year marriage, the plaintiff and the defendant entered into astipulation of settlement which was incorporated but not merged into a judgment of divorce datedMay 21, 1997 (hereinafter the stipulation). The stipulation provided, inter alia, that the plaintiffwould pay the defendant tax-free monthly maintenance in the sum of $3,000 for 10 years, andentitled the defendant to seek an extension of maintenance, to be granted in a "just and proper"amount, if she established that she continued to be incapable of supporting herself at or near thestandard of living before separation.
In an order dated January 8, 2009, the Supreme Court only partially granted the defendant'smotion for, inter alia, an award of permanent tax-free maintenance (hereinafter the maintenanceaward), and the defendant appealed from that order. This Court modified, inter alia, by providingthat she was entitled to receive monthly maintenance in the sum of $2,000 until she reached theage of 65, to continue thereafter in the sum of $1,800 until the death of either party, or thedefendant's remarriage (see Cotton vCotton, 76 AD3d 1041 [2010]). However, prior to this Court's modification of themaintenance award, the plaintiff moved, inter alia, for leave to renew and reargue his oppositionto the defendant's motion. The plaintiff also moved for a downward modification of hismaintenance obligation. The defendant cross-moved for leave to conduct third-party depositions[*2]to determine the plaintiff's financial resources, and forsanctions and an award of an attorney's fee for the costs of defending the action.
In an order dated August 3, 2010, the Supreme Court granted that branch of the plaintiff'smotion which was for leave to reargue to the extent that it found certain misstatements of factexisted which overestimated the defendant's medical liabilities and underestimated her monthlyincome. The Supreme Court also held that there were new facts since the order dated January 8,2009, which justified renewal, and that certain facts required a hearing to determine whetherchanged circumstances required downward modification of the maintenance award, includingwhether the defendant's net worth exceeded the plaintiff's net worth as of January 2010. TheSupreme Court also held the plaintiff's motion for a downward modification of his maintenanceobligation in abeyance pending the conclusion of a hearing to determine, inter alia, the parties'respective financial status. The Supreme Court also denied the defendant's cross motion in itsentirety. The defendant appeals from so much of the order dated August 3, 2010, as denied thosebranches of her cross motion which were for leave to conduct third-party depositions and for anaward of an attorney's fee.
The defendant's contentions regarding her right to conduct nonparty discovery are withoutmerit, as the defendant failed to make any showing that the requested information is not availablefrom other sources, notably, the plaintiff (see Kooper v Kooper, 74 AD3d 6, 16 [2010]; Reich v Reich, 36 AD3d 506, 507[2007]).
A court may award an attorney's fee to a spouse in a matrimonial action to enable that spouseto carry on or defend the action or proceeding as, in the court's discretion, justice requires, havingregard for the circumstances of the case and of the respective parties (see DeCabrera vCabrera-Rosete, 70 NY2d 879, 881 [1987]; Moccia v Moccia, 82 AD3d 1064, 1064 [2011]; DomesticRelations Law § 237 [a]). The trial court should exercise discretion in awarding anattorney's fee "in appropriate cases, to further the objectives of litigational parity, and to preventthe more affluent spouse from wearing down or financially punishing the opposition byrecalcitrance, or by prolonging the litigation" (O'Shea v O'Shea, 93 NY2d 187, 193[1999]; see DeCabrera v Cabrera-Rosete, 70 NY2d at 881; Many v Many, 84 AD3d 1036,1037 [2011]; Sevdinoglou vSevdinoglou, 40 AD3d 959, 960 [2007]).
Since the Supreme Court held the plaintiff's motion for a downward modification of hismaintenance obligation in abeyance pending the conclusion of a hearing to determine, inter alia,the parties' respective financial status, the Supreme Court also should have held in abeyance thatbranch of the defendant's cross motion which was for an award of an attorney's fee for defendingthe plaintiff's motion, pending that determination (cf. Matter of Dinhofer v Zabezhanskaya, 79 AD3d 1039 [2010]; David v David, 54 AD3d 714, 715[2008]; Vigo v Vigo, 97 AD2d 463, 464 [1983]). Rivera, J.P., Roman, Sgroi and Cohen,JJ., concur.