Justice Janet C. Malone

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.

Continue Reading Counsel Fees Per Divorce Settlement For Withdrawn Enforcement Proceedings

The wife’s failure to send notice of default as required by the parties’ divorce judgment resulted in no award of counsel fees on her enforcement application. So held the Appellate Division, Second Department, in its August, 2015 decision in Taormina v. Taorminareversing the wife’s $7,781.25 counsel fee award by Westchester Supreme Court Acting Justice Janet C. Malone.

The wife had sought an award of a counsel fee pursuant to the parties’ judgment of divorce in connection with the husband’s alleged defaults as to certain obligations set forth in that judgment. The judgment, however, required the nondefaulting party to give notice of alleged defaults by certified mail. It was undisputed that the wife did not give such notice. Accordingly, the wife was not entitled to an award of a counsel fee pursuant to the terms of the judgment.

Moreover, as the record did not reflect that the husband’s defaults were “willful” within the meaning of Domestic Relations Law §237(c), that statute did not provide a proper alternative basis for the award of a counsel fee to the wife. Therefore, Justice Malone erred in awarding the wife a counsel fee.

Rocco V. Salerno, Jr., of Eastchester, represented the husband. Helene M. Selznick, of Somers, represented the wife.