Stephenson v. Stephenson
| Decision Date | 21 January 1986 |
| Parties | George E. STEPHENSON, Plaintiff-Respondent, v. Catherine STEPHENSON, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
B. Clair, New York City, for plaintiff/respondent.
A. Robertson, New York City, for defendant/appellant.
Before SANDLER, J.P., and CARRO, FEIN, MILONAS and ROSENBERGER, JJ.
Order of the Supreme Court, New York County (Hortense W. Gabel, J.), entered on September 12, 1984, which granted the motion by plaintiff-respondent to confirm the report of the Special Referee, is unanimously reversed on the law, the facts and in the exercise of discretion, the motion to confirm denied and the matter remanded for further proceedings, with costs and disbursements.
In April of 1983, plaintiff-respondent commenced an action to rescind and reform a separation agreement which had been executed in 1978 and subsequently incorporated into a judgment of divorce. He alleged in his complaint that the agreement was unfair and unconscionable, that it was the result of fraud and misrepresentation, that he signed it under emotional stress and duress and that it was against public policy. Defendant's subsequent motion for summary judgment dismissing the action was granted, as were her counterclaims for arrears in maintenance payments and for counsel fees. However, the counterclaim for attorneys fees was severed and referred to a Special Referee to hear and report with recommendations. Plaintiff appealed, and this court affirmed Special Term's determination in an order entered on January 24, 1985. (107 A.D.2d 1095, 485 N.Y.S.2d 672) Leave to appeal to the Court of Appeals was denied by this court on March 21, 1985 and by the Court of Appeals on May 28, 1985.
At the hearing before the referee, defendant's attorney testified as to the number of hours he and one of his associates expended in connection with the instant litigation and their respective hourly billing rate. He also stated that he could not differentiate between the time spent defending the rescission action and enforcing the maintenance provisions of the judgment of divorce because the two were interconnected. The Special Referee thus concluded that since defendant's lawyer had failed to offer proof regarding the services performed on the counterclaim for arrears, no specific recommendation could be made. In an order entered on September 12, 1984, this report was confirmed.
Pursuant to the Domestic Relations Law, the court may, in its discretion, award attorneys fees for the prosecution or defense of an action to annul or modify an order or judgment for alimony (section 237[b] ) or for the prosecution or defense of an action to compel the payment of money required to be paid by a judgment or order entered in a divorce action. (section 238). In the instant situation, defendant endeavored to defend the validity of the separation agreement, as incorporated into the judgment of divorce, and to enforce its terms. Plaintiff, on the other hand, instead of complying with the maintenance provisions of the agreement, as he was obligated to do, instituted an ultimately...
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Hackett v. Hackett, 3338/2008.
...induced separation agreement, not to reform an agreement based upon a mutual mistake. Plaintiff asserts that Stephenson v. Stephenson, (116 A.D.2d 504[1986] ), is likewise distinguishable, since the Stephenson case involved non-payment and arrears of maintenance owed by the husband under a ......
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Trento v. Trento
...here, the complaint seeks to modify the separation agreement by reducing plaintiff's support obligation (see, Stephenson v. Stephenson, 116 A.D.2d 504, 505-506, 497 N.Y.S.2d 375). The court erred in awarding attorney's fees to defendant, however, because her fee application was not accompan......
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Hackett v. Hackett
...settlement agreement ( seeDomestic Relations Law § 238; Montero v. Montero, 85 A.D.3d 986, 987, 926 N.Y.S.2d 573;Stephenson v. Stephenson, 116 A.D.2d 504, 506, 497 N.Y.S.2d 375;cf. Fine v. Fine, 26 A.D.3d 406, 810 N.Y.S.2d ...
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Lewin v. Caplan
...visitation or maintenance for a child or for a downward modification of a support or maintenance award. (Stephenson v. Stephenson, 116 A.D.2d 504, 505, 497 N.Y.S.2d 375; see generally, 48 N.Y.Jur.2d, Domestic Relations § Accordingly, there was no error in awarding counsel fees for services ......