Fischman v. Fischman
| Decision Date | 23 November 1994 |
| Parties | Lois FISCHMAN, Respondent, v. Stuart FISCHMAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Schapiro & Reich (Perry S. Reich, of counsel), Lindenhurst, for appellant.
Marilyn S. Faust, White Plains, for respondent.
Before CARDONA, P.J., and MERCURE, WHITE and PETERS, JJ.
Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Colabella, J.), entered March 18, 1993 in Westchester County, which, upon reconsideration, inter alia, modified a pendente lite award of child support.
In this divorce action, defendant limits his appeal to so much of Supreme Court's modified pendente lite order as (1) awarded plaintiff $10,000 in interim counsel fees, (2) awarded plaintiff $7,500 as accountant's fees, and (3) required defendant to pay both child support and all expenses attributable to the marital residence, which he asserts constitutes impermissible "double dipping". We conclude that defendant's contentions lack merit and accordingly affirm.
Initially, we reject the contention that the parties' so-called separation agreement precluded an award of counsel or accountant's fees. The instrument, prepared by defendant, an attorney, and executed by plaintiff without the benefit of disinterested legal counsel only one month prior to the present application, is silent on the issues of maintenance and support and purports to distribute substantially all of the parties' assets to defendant. Under the circumstances, we conclude that plaintiff was entitled to broad discovery of defendant's current financial condition and an award of counsel and accounting fees in furtherance thereof (cf., Garguilio v. Garguilio, 168 A.D.2d 666, 563 N.Y.S.2d 840; Wandell v. Wandell, 140 A.D.2d 434, 528 N.Y.S.2d 136; Weinstock v. Weinstock, 122 A.D.2d 790, 505 N.Y.S.2d 675; Potvin v. Potvin, 92 A.D.2d 562, 459 N.Y.S.2d 313). We also note that the agreement does not by its terms bar Supreme Court's awards (see, Pelkey v. Pelkey, 79 A.D.2d 835, 435 N.Y.S.2d 138, lv. denied, 53 N.Y.2d 601, 438 N.Y.S.2d 1027, 420 N.E.2d 981; Scheinkman, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law C237:2, at 504-505; see also, Balenske v. Balenske, 73 Misc.2d 405, 342 N.Y.S.2d 183; cf., Demis v. Demis, 168 A.D.2d 840, 842, 564 N.Y.S.2d 515, lv. dismissed, 78 N.Y.2d 1007, 575 N.Y.S.2d 458, 580 N.E.2d 1061). Notably, we do not view the provisions that the parties "agree not go to a divorce attorney" and that "[t]he final divorce shall be obtained amicably, and with no further litigation on either side" as precluding an award of counsel fees.
Second, considering the parties' sharply disparate economic circumstances and defendant's demonstrated efforts to obscure his true financial condition, Supreme Court did not abuse its discretion in making the challenged awards of counsel and accountant's fees (see, Wolfe v. Wolfe, 111 A.D.2d 809, 490 N.Y.S.2d 555; Karnilaw v. Karnilaw, 110 A.D.2d 685, 487 N.Y.S.2d 601; Pacheco v. Pacheco, 107 A.D.2d 741, 484 N.Y.S.2d 102). Here, Supreme Court properly awarded counsel fees after considering the circumstances of the case, the relative financial circumstances of the parties, the complexity of the litigation and the reasonable projection of the services to be provided (see, Domestic Relations Law § 237[a]; DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168; Sclafani v. Sclafani, 178 A.D.2d 830, 832, 577 N.Y.S.2d 711). Further, the accountant's affidavit reveals an intention to evaluate the whole of the parties' financial circumstances, and not just defendant's "defunct" law practice as contended by defendant, and details the services to be performed and the time involved (see, Scagnelli v. Scagnelli, 127 A.D.2d 754, 512 N.Y.S.2d 146).
Finally, in view of the fact that Supreme Court does not appear to...
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