From Casetext: Smarter Legal Research

Nee v. Nee

Appellate Division of the Supreme Court of New York, Second Department
Jun 9, 1997
240 A.D.2d 478 (N.Y. App. Div. 1997)

Opinion

June 9, 1997

Appeal from the Supreme Court, Rockland County (Shapiro, J.).


Ordered that the judgment is modified, on the law and as a matter of discretion, by (1) deleting from the fourth decretal paragraph thereof the provision "and from the defendant's share of the funds the sum of $16,583.95 shall be paid to the plaintiff as and for legal fees in the amount of $15,989.95 and her share of the Blanco investment in the amount of $594.00", and substituting therefor the provision "and from the defendant's share of the funds the sum of $594 shall be paid to the plaintiff as and for her share in the Blanco investment", and (2) deleting the twelfth decretal paragraph thereof, and substituting therefor a decretal paragraph directing the defendant to pay the plaintiff the sum of $500 per month as maintenance as of January 1, 1996, until December 15, 2000, with all maintenance terminating in the event that either party dies or the plaintiff remarries; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Rockland County, for further proceedings consistent herewith.

Under the circumstances of this case, it was not an improvident exercise of discretion for the Supreme Court to value the defendant's pension as of the date that the plaintiff commenced the instant divorce action as opposed to the date that a previous, discontinued divorce action between the parties was commenced (see, Marcus v. Marcus, 137 A.D.2d 131; cf., Thomas v Thomas, 221 A.D.2d 621).

The record shows that the defendant earned a gross income of approximately $72,000 in 1995, which is more than twice the amount earned by the plaintiff. However, the defendant is paying the plaintiff $9,137.84 per year in child support and the plaintiff received considerable assets from the distributive award. Under the circumstances presented, a maintenance award of $500 per month for five years is proper (see, e.g, Hartog v. Hartog, 85 N.Y.2d 36; Weiss v. Weiss, 213 A.D.2d 542). On remittitur, the Supreme Court is to determine the amount of credit due to the defendant.

Considering the disparity in the incomes of the parties and the defendant's tactics, which unnecessarily prolonged this litigation, it was appropriate for the trial court to require the defendant to pay the plaintiff's counsel fees (see, Kelly v. Kelly, 223 A.D.2d 625; Weiss v. Weiss, supra; Cinnamond v. Cinnamond, 203 A.D.2d 229). The trial court erred, however, by awarding the plaintiff counsel fees in an amount of more than $15,000 without first holding a hearing. In the absence of a stipulation that an award of counsel fees can be made solely on the basis of the affirmations of counsel, an evidentiary hearing is required so that the court may test the claims of the plaintiffs attorney regarding the extent and value of her services (see, Kelly v. Kelly, supra; see, e.g, Maroney v. Maroney, 208 A.D.2d 915, 916; Fishkin v. Fishkin, 201 A.D.2d 202, 208; Silverman v Silverman, 193 A.D.2d 595). Accordingly, the matter is remitted to the Supreme Court, Rockland County, for a hearing on this issue.

The defendant's remaining contention is without merit.

Pizzuto, J.P., Santucci, Friedmann and Luciano, JJ., concur.


Summaries of

Nee v. Nee

Appellate Division of the Supreme Court of New York, Second Department
Jun 9, 1997
240 A.D.2d 478 (N.Y. App. Div. 1997)
Case details for

Nee v. Nee

Case Details

Full title:CHARLOTTE NEE, Respondent, v. JOHN CHUNG-MING NEE, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 9, 1997

Citations

240 A.D.2d 478 (N.Y. App. Div. 1997)
658 N.Y.S.2d 440

Citing Cases

In re Weisberg

However, in the absence of a stipulation in which one spouse agrees to pay the attorneys' fees of another…

East v. East

Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees…