| Paulson v Paulson |
| 2013 NY Slip Op 03976 [107 AD3d 677] |
| June 5, 2013 |
| Appellate Division, Second Department |
| Carolyn Paulson, Respondent, v Kenneth Paulson,Appellant. |
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Zelenitz, Shapiro & D'Agostino, P.C., Briarwood, N.Y. (Rachel E. Gallagher ofcounsel), for respondent.
In a matrimonial action in which the parties were divorced by judgment of divorceentered December 22, 2008, the defendant appeals, as limited by his brief, from so muchof an order of the Supreme Court, Suffolk County (McNulty, J.), dated December 12,2011, as granted those branches of the plaintiff's cross motion which were to enforce hishealth insurance obligation in the parties' stipulation of settlement, which wasincorporated but not merged in their judgment of divorce, and for an award of anattorney's fee.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the plaintiff's cross motion whichwas to enforce the provision of the parties' stipulation of settlement, which wasincorporated but not merged into their judgment of divorce, requiring the defendant tomake monthly payments in the sum of $483 for a period of three years following theentry of the divorce judgment in order to maintain health insurance for the plaintiff. If theparties had intended for the defendant to be relieved of the obligation to make anypayments upon the loss of his ability to obtain COBRA coverage for the plaintiff, theycould have incorporated language to that effect into the stipulation (see Etzion v Etzion, 84 AD3d1015, 1017-1018 [2011]; Ferrara v Ferrara, 42 AD3d 426, 427 [2007]).
Moreover, "[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,as well as the tactics of a party in unnecessarily prolonging the litigation" (Franco v Franco, 97 AD3d785, 786-787 [2012]). Under the circumstances of this case, the Supreme Court'saward of an attorney's fee to the plaintiff was a provident exercise of discretion (seeFranco v Franco, 97 AD3d at 786-787; D'Anna v D'Anna, 17 AD3d 400, 402 [2005]; Lazanskyv Lazansky, 148 AD2d 501, 503 [1989]). Angiolillo, J.P., Hall, Roman andHinds-Radix, JJ., concur.