Aebly v. Lally

127 A.D.3d 893, 4 N.Y.S.3d 921

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 2015
• Docket: 2013-05911
• Status: Published

Opinion

Appeals from (1) an order of the Supreme Court, Nassau County (Hope Schwartz Zimmerman, J.), dated March 29, 2013, and (2) an order of that court dated April 9, 2013. The order dated March 29, 2013, denied the defendant’s motion for an award of counsel fees. The order dated April 9, 2013, denied the defendant’s motion, inter alia, for an upward modification of the plaintiffs child support obligation.

Ordered that the orders are affirmed, with one bill of costs.

The parties to this matrimonial action were divorced by a judgment entered on May 16, 2012, following a trial. The judgment, which deferred the issue of counsel fees for a hearing, was subsequently modified by this Court (see Aebly v Lally, 112 AD3d 561 [2013]). On July 5, 2012, the parties appeared in court and consented to a determination of the motion for an award of counsel fees upon the party’s submissions.

Under the circumstances of this case, including the parties’ similar financial positions and the distributive award, the Supreme Court did not improvidently exercise its discretion in denying the defendant’s motion for an award of counsel fees (see Filippazzo v Filippazzo, 121 AD3d 835 [2014]; Heymann v Heymann, 102 AD3d 832 [2013]; cf. Guzzo v Guzzo, 110 AD3d 765 [2013]).

The defendant failed to make the requisite showing to warrant an upward modification of the plaintiffs child support obligation as set forth in the parties’ judgment of divorce (see Matter of Radday v McLoughlin, 106 AD3d 1015 [2013]; Weill v Weill, 17 AD3d 666 [2005]).

The defendant’s remaining contentions are without merit.

Balkin, J.P., Hall, Roman and Cohen, JJ., concur.