Assad v. Assad

• Decision Date: 15 December 2021
• Docket Number: Index No. 706429/20,2021-00158
• Citation: 2021 NY Slip Op 06978
• Parties: Maria Assad, appellant, v. Mohammed Assad, respondent.
• Court: New York Supreme Court

2021 NY Slip Op 06978

Maria Assad, appellant,
v.
Mohammed Assad, Respondent.

No. 2021-00158

Index No. 706429/20

Supreme Court of New York, Second Department

December 15, 2021

Argued - November 4, 2021

D67941 I/htr

Friedman & Friedman, PLLC, Garden City, NY (Jennifer Moran of counsel), for appellant.

Petitti PLLC, New York, NY (Danielle R. Petitti of counsel), for respondent.

REINALDO E. RIVERA, J.P., VALERIE BRATHWAITE, NELSON LINDA CHRISTOPHER, LARA J. GENOVESI, JJ.

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment dated September 13, 2016, the plaintiff appeals from an order of the Supreme Court, Queens County (Jodi Orlow, J.), entered January 4, 2021. The order, insofar as appealed from, (1) denied, without a hearing, those branches of the plaintiff's motion which were to modify the parties' stipulation of settlement dated January 29, 2016, which was incorporated but not merged into the judgment of divorce, so as to permit her to relocate with the parties' children to Texas, or, in the alternative, to upwardly modify the defendant's child support obligation and award her sole custody of the children, (2) granted that branch of the defendant's cross motion which was for an award of attorney's fees to the extent of awarding him attorney's fees in the sum of $5, 000, and (3), sua sponte, enjoined the plaintiff, absent an emergency, from instituting further actions or filing motions without first obtaining written leave of the court and directed that if the plaintiff attempted to re-litigate the same issues in the future, sanctions would be imposed against her for the defendant's full costs and fees of defending the action.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, enjoined the plaintiff, absent an emergency, from instituting further actions or filing motions without first obtaining written leave of the court and directed that if the plaintiff attempted to re-litigate the same issues in the future, sanctions would be imposed against her for the

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defendant's full costs and fees of defending the action, is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further, ORDERED that the order is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof granting that branch of the defendant's cross motion which was for an award of attorney's fees to the extent of awarding him attorney's fees in the sum of $5, 000, and substituting therefor a provision denying that branch of the cross motion; (2) by deleting the provision thereof denying that branch of the plaintiff's motion which was to modify the parties' stipulation of settlement so as to upwardly modify the defendant's child support obligation; and (3) by deleting the provisions thereof, sua sponte, enjoining the plaintiff, absent an emergency, from instituting further actions or filing motions without first obtaining written leave of the court and directing that if the plaintiff attempted to re-litigate the same issues in the future, sanctions would be imposed against her for the defendant's full costs and fees of defending the action; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a hearing on that branch of the plaintiff's motion which was to modify the parties' stipulation of settlement so as to upwardly modify the defendant's child support obligation, and a new determination thereafter of that branch of the plaintiff's motion.

The parties were divorced by judgment dated September 13, 2016, which incorporated, but did not merge, a stipulation of settlement of the parties dated January 29, 2016. Pursuant to the stipulation of settlement, the parties shared joint legal custody of their three children, with primary residential custody to the plaintiff and a parental access schedule for the defendant. The stipulation of settlement also provided that the plaintiff was prohibited from relocating with the children outside of New York...