Gilmore v. Gilmore

Appellate Division of the Supreme Court of New York

Gilmore v. Gilmore

138 A.D.2d 347, 525 N.Y.S.2d 639, 1988 N.Y. App. Div. LEXIS 2140

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

DecidedMarch 7, 1988

StatusPublished

Cited by8 cases

This text of 138 A.D.2d 347 (Gilmore v. Gilmore) 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

Gilmore v. Gilmore, 138 A.D.2d 347, 525 N.Y.S.2d 639, 1988 N.Y. App. Div. LEXIS 2140 (N.Y. Ct. App. 1988).

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Opinion

In a matrimonial action in which the parties were divorced by judgment dated June 27, 1986, the defendant husband appeals from an order of the Supreme Court, Westchester County (Wood, J.), entered January 7, 1987, which awarded the plaintiff wife the sum of $32,604.62 for attorney’s fees, disbursements and appraisal fees.

Ordered that the order is affirmed, with costs.

On June 27, 1986, a judgment was entered granting the parties a divorce and other relief. Therein, the plaintiffs application for counsel and appraisal fees and disbursements was denied "without prejudice to reapply for such relief’. In an accompanying memorandum decision, the trial court explained that the plaintiffs application for counsel fees lacked sufficient detail upon which to base an award and the court stated that the plaintiffs request was being denied "without prejudice * * * to reapply for such relief upon the submission of the proper papers”. Following entry of the divorce judgment, the plaintiff resubmitted her application and the defendant opposed on the ground that pursuant to Domestic Relations Law § 237 (a), the court lacked authority to make such a postjudgment award. The court rejected the defendant’s argument and granted the plaintiffs application, and the defendant now appeals.

Ordinarily the trial court lacks the authority to make a postjudgment award of fees of this nature for services rendered prior to the entry of the judgment (Domestic Relations Law § 237 [a]; 48 NY Jur 2d, Domestic Relations, §§ 1337, 1344, at 196-198, 208; Taylor v Taylor, 120 AD2d 355). However, here, the application was made prior to the entry of the judgment and the court specifically retained continuing but limited jurisdiction to entertain the plaintiff’s reapplication (cf., Naramore v Naramore, 118 AD2d 899). Under these circumstances, the postjudgment award of counsel fees, disbursements and appraisal fees is proper (cf., Sadofsky v Sadofsky, 78 AD2d 520; Riemer v Riemer, 31 AD2d 482, affd 31 NY2d 881). Mangano, J. P., Lawrence, Spatt and Balletta, JJ., concur.

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In a matrimonial action in which the parties were divorced by judgment dated June 27, 1986, the defendant husband appeals from an order of the Supreme Court, Westchester County (Wood, J.), entered January 7, 1987, which awarded the plaintiff wife the sum of $32,604.62 for attorney’s fees, disbursements and appraisal fees.

Ordered that the order is affirmed, with costs.

On June 27, 1986, a judgment was entered granting the parties a divorce and other relief. Therein, the plaintiffs application for counsel and appraisal fees and disbursements was denied "without prejudice to reapply for such relief’. In an accompanying memorandum decision, the trial court explained that the plaintiffs application for counsel fees lacked sufficient detail upon which to base an award and the court stated that the plaintiffs request was being denied "without prejudice * * * to reapply for such relief upon the submission of the proper papers”. Following entry of the divorce judgment, the plaintiff resubmitted her application and the defendant opposed on the ground that pursuant to Domestic Relations Law § 237 (a), the court lacked authority to make such a postjudgment award. The court rejected the defendant’s argument and granted the plaintiffs application, and the defendant now appeals.

Ordinarily the trial court lacks the authority to make a postjudgment award of fees of this nature for services rendered prior to the entry of the judgment (Domestic Relations Law § 237 [a]; 48 NY Jur 2d, Domestic Relations, §§ 1337, 1344, at 196-198, 208; Taylor v Taylor, 120 AD2d 355). However, here, the application was made prior to the entry of the judgment and the court specifically retained continuing but limited jurisdiction to entertain the plaintiff’s reapplication (cf., Naramore v Naramore, 118 AD2d 899). Under these circumstances, the postjudgment award of counsel fees, disbursements and appraisal fees is proper (cf., Sadofsky v Sadofsky, 78 AD2d 520; Riemer v Riemer, 31 AD2d 482, affd 31 NY2d 881). Mangano, J. P., Lawrence, Spatt and Balletta, JJ., concur.

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Bluebook (online)

138 A.D.2d 347, 525 N.Y.S.2d 639, 1988 N.Y. App. Div. LEXIS 2140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmore-v-gilmore-nyappdiv-1988.

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