Cole v. Cole

Appellate Division of the Supreme Court of New York

Cole v. Cole

283 A.D.2d 602, 724 N.Y.S.2d 911, 2001 N.Y. App. Div. LEXIS 5499

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 29, 2001

StatusPublished

Cited by8 cases

This text of 283 A.D.2d 602 (Cole v. Cole) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cole v. Cole, 283 A.D.2d 602, 724 N.Y.S.2d 911, 2001 N.Y. App. Div. LEXIS 5499 (N.Y. Ct. App. 2001).

Pincite

Opinion

—In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Westchester County (Shapiro, J.), entered July 14, 2000, which granted the defendant’s application for counsel fees to the extent that it awarded the defendant counsel fees in the sum of $42,503.50, and denied her application for counsel fees.

Ordered that on the Court’s own motion, the notice of appeal from the order entered July 14, 2000, is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith; and it is further,

Ordered that one bill of costs is awarded to the appellant.

It is well settled that although the matter of counsel fees is entrusted to the sound discretion of the trial court, such an award is nonetheless controlled by the equities of the case and the financial circumstances of the parties (see, Domestic Relations Law § 237 [b]; Lee v Oi Wa Chan, 245 AD2d 270; Kavanakudiyil v Kavanakudiyil, 203 AD2d 250). Here, at the conclusion of a trial on the issue of custody in this action, both parties made applications for an award of counsel fees. However, neither party filed a statement of net worth with their application as required by 22 NYCRR 202.16 (k) (2), and the order does not indicate that the Supreme Court took the parties’ relative financial circumstances into consideration. The matter must therefore be remitted to the Supreme Court [603]*603for a new determination in accordance herewith, made after receipt of a statement of net worth from both parties. Further, the Supreme Court should consider only egregious matrimonial fault in making its award (see, Weinstock v Weinstock, 114 AD2d 450), and should not include in such an award counsel fees incurred as a result of the application for such fees (see, Zeitlin v Zeitlin, 250 AD2d 606). O’Brien, J. P., Krausman, Goldstein, Schmidt and Crane, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Westchester County (Shapiro, J.), entered July 14, 2000, which granted the defendant’s application for counsel fees to the extent that it awarded the defendant counsel fees in the sum of $42,503.50, and denied her application for counsel fees.

Ordered that on the Court’s own motion, the notice of appeal from the order entered July 14, 2000, is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith; and it is further,

Ordered that one bill of costs is awarded to the appellant.

It is well settled that although the matter of counsel fees is entrusted to the sound discretion of the trial court, such an award is nonetheless controlled by the equities of the case and the financial circumstances of the parties (see, Domestic Relations Law § 237 [b]; Lee v Oi Wa Chan, 245 AD2d 270; Kavanakudiyil v Kavanakudiyil, 203 AD2d 250). Here, at the conclusion of a trial on the issue of custody in this action, both parties made applications for an award of counsel fees. However, neither party filed a statement of net worth with their application as required by 22 NYCRR 202.16 (k) (2), and the order does not indicate that the Supreme Court took the parties’ relative financial circumstances into consideration. The matter must therefore be remitted to the Supreme Court [603]*603for a new determination in accordance herewith, made after receipt of a statement of net worth from both parties. Further, the Supreme Court should consider only egregious matrimonial fault in making its award (see, Weinstock v Weinstock, 114 AD2d 450), and should not include in such an award counsel fees incurred as a result of the application for such fees (see, Zeitlin v Zeitlin, 250 AD2d 606). O’Brien, J. P., Krausman, Goldstein, Schmidt and Crane, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

283 A.D.2d 602, 724 N.Y.S.2d 911, 2001 N.Y. App. Div. LEXIS 5499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-cole-nyappdiv-2001.

Opinion

Related

Cite This Page — Counsel Stack