Clark v. Clark

86 A.D.2d 788, 447 N.Y.S.2d 9, 1982 N.Y. App. Div. LEXIS 15398

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1982
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Gomez, J.), entered on January 21, 1981, which granted plaintiff’s motion for summary judgment and awarded plaintiff the sum of $33,250, as past-due alimony, directed that defendant establish an escrow fund in the amount of $105,000 to secure future alimony payments and awarded counsel fees in the amount of $500, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of striking the award of counsel fees, and otherwise affirmed, with costs to plaintiff respondent. The parties entered into certain agreements wherein the defendant, former husband, was to pay plaintiff monthly alimony in the amount of $1,750. Defendant was to make a lump-sum payment of $60,000 and he agreed to establish an escrow fund in the amount of $105,000, for the benefit of the plaintiff. The husband regularly paid the required sums for five years, but then unilaterally ceased all payments. Thereafter, the wife commenced the instant action. We agree with the determination of Special Term except as to the award of counsel fees. The agreements entered into contained no provisions for the award of counsel fees in the event of a breach. In addition, the record before this court merely requests counsel fees pursuant to the pertinent statute without demonstrating that plaintiff is unable to afford these costs herself or that she is needy. A reading of the record and the financial settlement agreed upon, leads us to conclude otherwise. (Mann v Wasserberger, 65 AD2d 717.) Therefore, counsel fees should not have been granted. Concur — Murphy, P. J., Sullivan, Ross and Bloom, JJ.