Here’s a reminder. Look over the “boilerplate” counsel-fees-on-default provision of your settlement agreements; and re-read them when resolving enforcement proceedings.
Take a lesson from the July 25, 2018 decision of the Appellate Division, Second Department, in Posner v. Posner. There, The parties’ 2010 judgment of divorce incorporated, but did not merge, their stipulation of settlement. That stipulation provided that where one of the parties commences litigation to enforce it, and that litigation does not “result in a judgment or order in favor of the party” who commenced the litigation, that party shall reimburse the other party for any and all expenses, including attorney’s fees.
In 2011, the husband commenced litigation in the Family Court to enforce certain stipulation provisions. Thereafter, the wife filed a contempt motion under a separate docket number. After eight days of trial over nine months, the parties agreed to withdraw their respective petitions with prejudice. The parties nevertheless “reserve[d] all other rights provided for” in the 2010 stipulation of settlement.
In January 2014, the wife filed a motion in the Supreme Court seeking an award of attorney’s fees pursuant to the parties’ 2010 stipulation of settlement for the 2011 Family Court litigation. Westchester County Supreme Court Justice Francis A. Nicolai granted the wife’s motion to the extent of finding that the wife was entitled to an award of attorney’s fees and set the matter down for a hearing as to the appropriate amount. In a judgment entered September 27, 2016, after a hearing, Justice Janet C. Malone awarded the wife a judgment for attorney’s fees in the sum of $224,287. The husband appealed.
The Second Department affirmed.
Litigants should bear in mind that a stipulation of settlement limiting the issues, discontinuing a cause of action, or withdrawing a claim is an agreement to which the courts are party and in the enforcement of which the courts have a particular interest.
Here, as the Supreme Court recognized, because the husband’s 2011 enforcement proceeding did not “result in a judgment or order in favor of the party bringing such suit or proceeding,” the husband was obligated under the terms of the 2010 stipulation of settlement to reimburse the wife’s attorney’s fees.
The husband contended that the wife was barred by principles of res judicata from seeking reimbursement of her attorney’s fees. However, the appellate court noted, the Family Court did not rule against the wife on the matter of attorney’s fees, but simply declined to address the issue. Accordingly, the wife was not barred from seeking relief in the Supreme Court.
Thus, it would appear that the request for attorney’s fees need not be included/raised on the underlying enforcement proceeding. It also appears that a plenary action is not necessary to obtain counsel fees for a prior proceeding.
What also jumps out is the question, was there or should there have been a cross-application by the husband for his counsel fees? Further, was the wife awarded counsel fees only for defending the husband’s enforcement proceeding, or was she also awarded fees on her ultimately-withdrawn contempt application.
Scott T. Horn and Naomi M. Taub, of Mischel & Horn, P.C., of Manhattan, represented the husband. Howard P. Roy, of Cohen Clair Lans Greifer Thorpe & Rottenstreich LLP, of Manhattan, represented the wife.