Gagstetter v. Gagstetter

• Decision Date: 07 May 2001
• Citation: 283 AD2d 393,727 N.Y.S.2d 435
• Parties: (A.D. 2 Dept. 2001) John Gagstetter, respondent-appellant, v Lois Gagstetter, appellant-respondent. 1999-09263 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 435

727 N.Y.S.2d 435 (A.D. 2 Dept. 2001)

John Gagstetter, respondent-appellant, v Lois Gagstetter, appellant-respondent.

1999-09263

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

May 7, 2001

Karen G. Brand, P.C., Manhasset, N.Y., for appellant-respondent.

Carl G. Cohen, Cane Place, N.Y., for respondent-appellant.

DECISION & ORDER

DAVID S. RITTER, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, NANCY E. SMITH, JJ.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Nassau County (Mahon, J.), entered August 25, 1999, which, inter alia, failed to award her an attorney's fee, awarded custody of the parties' minor son to the plaintiff, directed her to pay $598 per month in child support, purportedly directed her to pay a portion of the Law Guardian fees, failed to award her a money judgment in the sum of $10,453 representing certain arrears allegedly owed by the plaintiff, directed the plaintiff to obtain life insurance coverage for himself in the sum of only $100,000, equitably distributed the parties' property, and failed to award her the amount of interest and penalties incurred for unpaid property taxes and other expenses on the parties' commercial property in Elmont, and the plaintiff cross-appeals, as limited by his brief, from stated portions of the same judgment, which, inter alia, imputed income to him in the sum of $180,000, and directed him to pay $130,000 to the defendant to satisfy the mortgage on the marital residence.

ORDERED that the appeal from so much of the judgment as awarded custody of the parties' minor son to the plaintiff and purportedly directed the defendant to pay a portion of the Law Guardian fees is dismissed; and it is further,

ORDERED that the judgment is modified, on the law and as an exercise of discretion, by (1) deleting the fifth and sixth decretal paragraphs thereof, (2) adding to the tenth decretal paragraph thereof a provision awarding the defendant 50% of the interest earned, if any, on the plaintiffs pension fund and individual retirement accounts from the date the divorce action was commenced to the date of the judgment to the extent that such interest is attributable to the value of those assets as of the date this action was commenced, (3) deleting from the thirteenth decretal paragraph thereof the sum of $100,000 and substituting therefor the sum of $500,000, (4) deleting the eighteenth decretal paragraph thereof and substituting therefor a decretal paragraph awarding the defendant an attorney's fee in connection with her defense of the plaintiff's cross motion, in effect, to declare that the parties' daughter was emancipated, (5) adding a decretal paragraph thereto awarding the defendant the sum of $10,453, and (6) adding a decretal paragraph thereto awarding the defendant the sum of $2,115 for interest and penalties incurred on unpaid property taxes and other expenses in connection with the parties' commercial property in Elmont; as so modified, the judgment is affirmed insofar as reviewed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, to determine the amount of interest, if any, which was earned on the plaintiff's pension and individual retirement accounts from the date of valuation until the date of the judgment and the attorney's fee due the defendant in connection with her defense of the plaintiff's cross motion to have their daughter declared emancipated, and thereafter for entry of an appropriate amended judgment.

The defendant's appeal from so much of the judgment as awarded the plaintiff custody of the parties' minor son is dismissed. That portion of the judgment was superseded by an order dated November 30, 2000, of the Supreme Court, Nassau County (Lockman, J.H.O.), transferring custody of the son back to the defendant. Accordingly, her appeal from that portion of the judgment is dismissed as academic. We reject the defendant's contention that we should review the custody determination on the ground that if the Supreme Court improperly awarded custody to the plaintiff she would be entitled to recoup any child support she paid (see, Coleman v Coleman, 61 A.D.2d 757; see also, Baraby v Baraby, 250 A.D.2d 201).

The defendant's appeal from so much of the judgment as purportedly directed her to pay a portion of the Law Guardian fee must also be dismissed. By order entered February 19, 1999, the Supreme Court, Nassau County (Schmidt, J.), awarded the Law Guardian a fee in the sum of $18,824, of which the defendant's share was $5,608. The Supreme Court directed the Clerk to enter judgment accordingly. The defendant's appeal from that order was dismissed for failure to perfect. Accordingly, the defendant is foreclosed from raising any issues regarding the order entered February 19, 1999 (see, Rubeo v National Grange Mut. Ins. Co., 93 N.Y.2d 750; Bray v Cox, 38 N.Y.2d 350).

The Supreme Court properly denied the defendant an award of an attorney's fee in connection with her defense of this action. An award of an attorney's fee lies in the sound discretion of the trial court, after the court has taken into account the equities and circumstances of the particular case and the respective financial...