Aw v. Aw

254 A.D.2d 239, 678 N.Y.S.2d 266, 1998 N.Y. App. Div. LEXIS 10045

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 1998
• Status: Published

Opinion

In an action for a divorce and ancillary relief, (1) the defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Richmond County (Ponterio, J.), entered July 29, 1997, as directed him to pay the plaintiff $1,800 per month for maintenance and $580.83 per month for child support, and awarded the plaintiff attorneys’ fees in the amount of $28,319.90, and (2) the plaintiff cross-appeals from the same judgment.

Ordered that the cross appeal of the plaintiff is dismissed, without costs or disbursements, for failure to perfect the same in accordance with the rules of this Court (see, 22 NYCRR 670.8 [c], [e]); and it is further,

Ordered that the judgment is modified, on the law, by reducing the attorneys’ fees awarded to the plaintiff from $28,319.90 to $27,213.90; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

It was within the sound discretion of the trial court to credit the testimony of the plaintiff’s vocational expert and her valuation techniques in calculating the defendant’s imputed income (see, Dempster v Dempster, 236 AD2d 582). Moreover, the court properly granted counsel fees to the plaintiff in light of the financial circumstances of both parties, together with all the other circumstances of the case (see, DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881). However, the award of attorneys’ fees should not have included fees related to services rendered in a related action to recover damages for personal injuries (see, Zeitlin v Zeitlin, 250 AD2d 606).

The defendant’s remaining contentions are without merit. O’Brien, J. P., Thompson, Sullivan and Friedmann, JJ., concur.