Bertone v. Bertone

15 A.D.3d 326, 790 N.Y.S.2d 35, 2005 N.Y. App. Div. LEXIS 1394

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2005
• Status: Published

Opinion

In a matrimonial action in which the parties were divorced by judgment dated February 6, 1998, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Tolbert, J.), dated January 22, 2004, as denied his motion to set aside portions of the parties’ stipulation of settlement dated January 13, 1998, and for a downward modification of his child support obligation, and granted that branch of the plaintiffs cross motion which was for an award of an attorney’s fee in the sum of $5,000.

Ordered that the order is modified, on the law and as a matter of discretion, by deleting the provision thereof granting that branch of the plaintiffs cross motion which was for an award of an attorney’s fee in the sum of $5,000, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiffs failure to submit an updated net worth statement on her behalf rendered that branch of her cross motion which was for an award of an attorney’s fee defective (see 22 NYCRR 202.16 [k] [2]; Matter of Fischer-Holland v Walker, 12 AD3d 671 [2004]). In any event, under the circumstances of this case, the award of an attorney’s fee to the plaintiff was an improvident exercise of discretion (see Domestic Relations Law § 237 [b]).

The defendant’s remaining contentions are without merit (see Beard v Beard, 300 AD2d 268 [2002]; Donohue v Donohue, 258 AD2d 498 [1999]; 22 NYCRR 202.16 [k] [2]). Florio, J.E, Adams, S. Miller and Goldstein, JJ., concur.