| Reddan v Reddan |
| 2012 NY Slip Op 00948 [92 AD3d 665] |
| February 7, 2012 |
| Appellate Division, Second Department |
| Penelope Reddan, Appellant, v Harold Reddan,Respondent. |
—[*1] DiGirolomo & DiGirolomo, P.C., Garden City, N.Y. (Alfred DiGirolomo, Jr., of counsel),for respondent.
In an action for a divorce and ancillary relief, the plaintiff wife appeals, as limited by herbrief, from so much of a judgment of the Supreme Court, Nassau County (Shifrin, Ct. Atty. Ref.),entered July 19, 2010, as declined to award her maintenance and a credit for her purportedseparate property contribution to improvements made to the marital residence, and failed toaward her an attorney's fee, and the defendant husband cross-appeals from the same judgment.
Ordered that the cross appeal is dismissed, without costs or disbursements, for failure toperfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8 [c],[e]); and it is further,
Ordered that the judgment is modified, on the facts and in the exercise of discretion, byadding thereto a provision directing that the plaintiff is entitled to an award of an attorney's fee;as so modified, the judgment is affirmed insofar as appealed from, without costs ordisbursements, and the matter is remitted to the Supreme Court, Nassau County, to determine theamount of the attorney's fee and thereafter for the entry of an appropriate amended judgment.
The Supreme Court providently exercised its discretion in declining to award the plaintiffmaintenance (see Domestic Relations Law § 236 [B] [6] [a]; Dellafiora v Dellafiora, 38 AD3d825, 826 [2007]; Almeda vHopper, 2 AD3d 471 [2003]; Mica v Mica, 275 AD2d 765, 766 [2000];Kraeger v Kraeger, 271 AD2d 657 [2000]).
Contrary to the plaintiff's contention, the Supreme Court properly denied her request for acredit for her purported separate property contribution to improvements made to the maritalresidence (see Traut v Traut, 181 AD2d 671, 672 [1992]). The determination as towhether separate property was used for certain renovations depended upon the credibility of theparties at the hearing, and the credibility determinations made by the Supreme Court aresupported by the record.
The Supreme Court improvidently exercised its discretion in failing to award the plaintiff anattorney's fee (see Domestic Relations Law § 237 [a]). An attorney's fee shouldhave [*2]been awarded based on the relative financial positions ofthe parties and the relative merits of their respective positions (see Prichep v Prichep, 52 AD3d61, 64 [2008]; Schek v Schek,49 AD3d 625, 626 [2008]). Therefore, the matter must be remitted to the Supreme Court,Nassau County, to determine an appropriate amount to be awarded as an attorney's fee (seeKalinich v Kalinich, 234 AD2d 344, 344-345 [1996]). Skelos, J.P., Balkin, Roman andSgroi, JJ., concur.