Appellate Division of the Supreme Court of New York, Fourth DepartmentSep 30, 1987
133 A.D.2d 536 (N.Y. App. Div. 1987)

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September 30, 1987

Appeal from the Supreme Court, Erie County, Desmond, J.H.O.

Present — Callahan, J.P., Denman, Green, Pine and Davis, JJ.

Judgment unanimously affirmed with costs. Memorandum: The direction that defendant pay 60% of plaintiff's counsel fees of $75,000 was not an abuse of discretion nor was the award excessive (Bushorr v. Bushorr, 129 A.D.2d 989; Kolmin v. Kolmin, 65 A.D.2d 928). Contrary to defendant's claims, we have not embraced the rule that a wife must be indigent in order for her to be awarded counsel fees. Rather, her resources or lack thereof are merely one factor to be considered in the totality of the financial circumstances (Kolmin v. Kolmin, supra; Alwardt v Alwardt, 41 A.D.2d 592; see also, Walsh v. Walsh, 92 A.D.2d 345, 346).

Moreover, the award of counsel fees was justified in view of defendant's obstructionist and dilatory tactics (Mulligan v Mulligan, 54 N.Y.2d 614, affg 79 A.D.2d 721; Nemia v. Nemia, 124 A.D.2d 407, 408; Schussler v. Schussler, 109 A.D.2d 875; Stern v Stern, 67 A.D.2d 253). Defendant engaged in conduct to conceal and remove assets, thereby frustrating the court's efforts to distribute the marital property equitably.

Finally, we exercise our discretionary authority to direct that defendant pay plaintiff's counsel fees generated by this appeal (see, Gannon v. Gannon, 116 A.D.2d 1030). Application to fix the amount of such counsel fees and expenses should be made to the trial court. We have reviewed defendant's other contentions and find them to be without merit.