Culen v. Culen

• Decision Date: 31 January 2018
• Docket Number: 2016–05955,Index No. 1239/09
• Citation: 69 N.Y.S.3d 881,157 A.D.3d 930
• Parties: Beata CULEN, respondent–appellant, v. Matthew CULEN, appellant–respondent.
• Court: New York Supreme Court — Appellate Division

157 A.D.3d 930

69 N.Y.S.3d 881

Beata CULEN, respondent–appellant,

v.Matthew CULEN, appellant–respondent.

2016–05955

Index No. 1239/09

Supreme Court, Appellate Division, Second Department, New York.

Submitted October 10, 2017

January 31, 2018

Martin & Colin, P.C., White Plains, N.Y. (William Martin of counsel), for appellant–respondent.

Joan Iacono, Bronxville, N.Y. (Barbara Martensson of counsel), for respondent–appellant.

MARK C. DILLON, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal and cross appeal on the ground of inadequacy from a money judgment of the Supreme Court, Westchester County, dated May 3, 2016. The money judgment, upon an order of that court (Charles D. Wood, J.) dated December 17, 2014, which, after a hearing, directed the defendant to pay an attorney's fee in the sum of $20,000 to the plaintiff, and an amended order of that court (Janet C. Malone, J.) dated August 28, 2015, which denied that branch of the defendant's motion which was, in effect, to vacate the order dated December 17, 2014, awarded the principal sum of $20,000 to the plaintiff.

ORDERED that on the Court's own motion, the plaintiff's notice of cross appeal from the order dated December 17, 2014, is deemed to be a premature notice of cross appeal from the money judgment (see CPLR 5520[c] ); and it is further,

ORDERED that the money judgment is modified, on the facts and in the exercise of discretion, by increasing the amount awarded to the plaintiff from the principal sum of $20,000 to the principal sum of $90,000; as so modified, the money judgment is affirmed, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an appropriate amended judgment, and the order dated December 17, 2014, is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff's contentions that the defendant's appeal from the money judgment should be dismissed are precluded by the doctrine of law of the case. By decisions and orders on motion dated July 19, 2016, and April 24, 2017, this Court previously denied dismissal of the appeal on the grounds now asserted.

The parties were married in August 1982. In January 2009, the plaintiff commenced this action for a divorce and ancillary relief. In October 2011, the parties executed a stipulation pendente lite, in which they agreed, inter alia, that the plaintiff would "have exclusive use and possession of the parties' Jeep Cherokee," and the defendant would continue to make the automobile loan payments on the vehicle. A nonjury trial on the issues of equitable distribution of the marital property and maintenance was conducted. The trial evidence established that the balance of the loan on the Jeep Cherokee (hereinafter the jeep) was approximately $10,312, and that the payments were $396.63 per month. The Supreme Court issued an amended decision after trial dated September 25, 2013, and subsequently a judgment of divorce, inter alia, awarding the plaintiff exclusive possession of the jeep, and directing that the plaintiff was solely responsible for all costs associated with the jeep, including the loan payments.

A hearing was conducted in connection with the plaintiff's request for an award of an attorney's fee pursuant to Domestic Relations Law § 237 in the amount of $125,511. In an order dated December 17, 2014, the Supreme Court awarded the plaintiff an attorney's fee in the sum of $20,000. In the event that the defendant failed to make payment to the plaintiff within 90 days of the order, the plaintiff was permitted to enter a judgment against the defendant in the sum of $20,000, "plus interest, less any credits for any sums paid toward this counsel fee award, without further notice."

In March 2015, the defendant moved, inter alia, in effect, to vacate the order dated December 17, 2014, asserting that he did not have to pay the plaintiff the attorney's fee award because he had already paid the plaintiff more than he was obligated to. The defendant contended that in the order dated December 17, 2014, the Supreme Court had stated that he was entitled to a credit in the sum of $10,000, representing the payment that he made pendente lite to the plaintiff for her attorney's fees. The defendant further contended that in the amended decision after trial, the court assigned the balance remaining on the automobile loan for the jeep in the sum of $10,312 as a debt to the plaintiff, and that he was entitled to a credit in the sum of $10,312, representing the payment that he made toward the loan balance between the conclusion of trial and when the amended decision after trial was issued. In an amended order dated August 28, 2015, the court denied that branch of the defendant's motion.

After the defendant failed to pay the plaintiff the attorney's fee award, on May 3, 2016, the Clerk of the Supreme Court, Westchester County, entered a money judgment in favor of the plaintiff and against the defendant in the principal sum of $20,000, plus interest. The defendant appeals and the plaintiff cross-appeals on the ground of inadequacy.

" ‘Pursuant to Domestic Relations Law § 237(a), a court in a divorce action may award counsel fees to a spouse to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and the respective parties' " ( Samimi v. Samimi , 134 A.D.3d 1010, 1012, 22 N.Y.S.3d 515, quoting Aloi v. Simoni , 82 A.D.3d 683, 686, 918 N.Y.S.2d 506 ). "The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court" ( Black v. Black , 140 A.D.3d 816, 816, 33 N.Y.S.3d 379 [...