| Gilliam v Gilliam |
| 2013 NY Slip Op 05877 [109 AD3d 871] |
| September 18, 2013 |
| Appellate Division, Second Department |
| Antoinette Gilliam, Respondent, v Robert Gilliam,Appellant. |
—[*1] John M. Kurkemelis, Brooklyn, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by hisnotice of appeal, his brief, and a letter dated April 30, 2013, from so much of a judgmentof the Supreme Court, Kings County (Sunshine, J.), dated September 26, 2011, as, upona decision dated July 6, 2011, made after a nonjury trial, awarded the plaintiffmaintenance in the sum of $1,500 per month until she reaches the age of 67, awarded theplaintiff the sums of $10,000 for counsel fees and $2,450 for expert fees, respectively,and awarded the plaintiff the sum of $5,250, representing 50% of the value of two of theparties' motor vehicles.
Ordered that the judgment is modified, on the facts and in the exercise of discretion,(1) by deleting the provision thereof awarding the plaintiff the sum of $10,000 forcounsel fees, and substituting therefor a provision awarding the plaintiff the sum of$3,732.50 for counsel fees, and (2) by deleting the provision thereof awarding theplaintiff the sum of $2,450 for expert fees, and substituting therefor a provision awardingthe plaintiff the sum of $750 for expert fees; as so modified, the judgment is affirmedinsofar as appealed from, without costs or disbursements.
The plaintiff commenced this divorce action after 19 years of marriage. She movedout of the marital residence in 2007, and was living with her mother and receiving SocialSecurity Disability Insurance benefits and food stamps. The defendant is employed as adeputy sheriff with the New York City Sheriff's Department and, pursuant to astipulation entered into by the parties, was awarded custody of the parties' youngest son,who was 19 years old at the time of the divorce. The defendant lives with the parties' twosons in the marital residence and receives rental income from them in the amount of$7,200 annually. After a nonjury trial, the Supreme Court, inter alia, awarded the plaintiffmaintenance in the sum of $1,500 per month until she reaches the age of 67, $10,000 incounsel fees, $2,450 in expert fees, and 50% of the value of two of the parties' motorvehicles.
"[T]he amount and duration of maintenance is [a matter] committed to the sounddiscretion of the trial court, and every case must be determined on its own unique facts"(Noto v Noto, 94 AD3d1069, 1070 [2012] [internal quotation marks omitted]). Given the length of themarriage, the plaintiff's age, the respective roles of the parties in the marriage, theplaintiff's health problems, [*2]the plaintiff's limitededucation and work history, and the vast disparity in the parties' incomes, the SupremeCourt providently exercised its discretion in awarding the plaintiff maintenance in thesum of $1,500 per month until she reaches the age of 67 (see Domestic RelationsLaw § 236 [B] [6] [a]). Contrary to the defendant's contention, since the partiesstipulated that they would each receive one half of the proceeds from the defendant'spension and deferred compensation plan when they were distributed, the defendant'smaintenance obligation should not be reduced in the future by the amount of thatpayment because, "[b]y reducing the [defendant]'s obligation to this extent, 'the court, inessence, [would] not award the [plaintiff] any portion of that pension' " (Castiglione vCastiglione, 259 AD2d 582, 584 [1999], quoting Weinstock v Weinstock,114 AD2d 450, 452 [1985]).
An award of reasonable counsel fees in a divorce action is a matter within the sounddiscretion of the trial court (see generally Domestic Relations Law § 237[a]). "The issue of counsel fees is controlled by the equities and circumstances of eachparticular case, and the court must consider the relative merits of the parties' positionsand their respective financial positions in determining whether an award is appropriate"(Nicodemus v Nicodemus,98 AD3d 605, 607 [2012] [internal quotation marks and citations omitted]).
Under the circumstances of this case, the Supreme Court providently exercised itsdiscretion in determining that the plaintiff is entitled to an award of counsel fees.However, the Supreme Court improvidently exercised its discretion in awarding hercounsel fees in the sum of $10,000. The attorney billing statements admitted intoevidence showed that the plaintiff had an outstanding balance of $3,732.50 and hadpreviously paid her attorney a $7,500 retainer and an additional $500 fee to review thefile. In light of the equitable distribution award herein (see Griggs v Griggs, 44 AD3d710 [2007]), the award of counsel fees to the plaintiff should be reduced to the sumof $3,732.50, the amount of the outstanding balance.
The Supreme Court further awarded the plaintiff the sum of $2,450 in connectionwith the fee paid to her physician, who testified in court regarding the plaintiff's need formaintenance. "In matrimonial actions, courts have the authority to order one spouse topay the other spouse's attorney fee and expert fees as, in the court's discretion, justicerequires, having regard to the circumstances of the case and of the respective parties" (Chesner v Chesner, 95 AD3d1252, 1253 [2012] [internal quotation marks omitted]). An award of expert fees willgenerally be warranted where, as here, there is a significant disparity in the financialcircumstances of the parties (see id. at 1253; see generally DomesticRelations Law § 237 [a]). Nevertheless, the plaintiff testified at trial that themedical expert was paid $1,500 to testify in court and that no further sums were due andowing. The plaintiff failed to present any further evidence to establish the amount of theexpert fees and, consequently, an award in the sum of $2,450 is not supported.Furthermore, in light of the equitable distribution award and the fact that the medicalexpert's testimony was relevant to issues raised by both parties, the defendant shouldhave been directed to reimburse the plaintiff for one half of the expert fees. Accordingly,the award of the sum of $2,450 in expert fees to the plaintiff should be reduced to $750,equaling one half of the $1,500 fee paid to the medical expert.
The defendant's remaining contentions are without merit. Mastro, J.P., Hall, Lott andSgroi, JJ., concur.