Opinion
October 31, 1994
Appeal from the Supreme Court, Westchester County (Wood, J.).
Ordered that the appeal from the order is dismissed without costs or disbursements; and it is further,
Ordered that the judgment is modified, on the law by deleting therefrom so much of the decretal paragraph as awarded attorney's fees, costs, and interest to the plaintiff; as so modified, the judgment is affirmed without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a de novo hearing and determination with respect to plaintiff's application for attorney's fees, costs and interest.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The Supreme Court's award of counsel fees and interest was in violation of the defendant's due process rights, as he was never notified that such an award was under consideration. The defendant was specifically advised by the court that it would not be addressing the issue of willfulness with regard to unpaid child support payments. The court, nonetheless, awarded counsel fees and interest based on a finding of willfulness (see, Brody v. Brody, 98 A.D.2d 702, 703; Leibowits v. Leibowits, 93 A.D.2d 535).
The court further erred in making the award of attorney's fees solely on the basis of a brief without first conducting a hearing as to the value of the legal services rendered (Price v. Price, 115 A.D.2d 530; Weinberg v. Weinberg, 95 A.D.2d 828, 829). In the absence of a stipulation regarding the amount due, the defendant was entitled to an evidentiary hearing to test in a meaningful way the value and time of the claimed services of counsel (Petritis v. Petritis, 131 A.D.2d 651, 654).
Finally, the record contains no proof that the defendant was ever given a reasonable opportunity to be heard prior to the court's imposition of costs pursuant to 22 N.Y.CRR part 130 (see, Flaherty v. Stavropoulos, 199 A.D.2d 301).
Accordingly, the matter is remitted to the Supreme Court, Westchester County, for a hearing de novo on the issues of plaintiff's entitlement to costs, interest, and attorney's fees pursuant to Domestic Relations Law §§ 237, 238.
We find no merit to the defendant's remaining contention. Santucci, J.P., Joy, Krausman and Goldstein, JJ., concur.