Lancaster v. Lancaster

Appellate Division of the Supreme Court of New York

Lancaster v. Lancaster

141 A.D.2d 701, 529 N.Y.S.2d 821, 1988 N.Y. App. Div. LEXIS 7090

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

DecidedJune 20, 1988

StatusPublished

Cited by9 cases

This text of 141 A.D.2d 701 (Lancaster v. Lancaster) 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

Lancaster v. Lancaster, 141 A.D.2d 701, 529 N.Y.S.2d 821, 1988 N.Y. App. Div. LEXIS 7090 (N.Y. Ct. App. 1988).

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Opinions

[702]*702Ordered that the judgment is modified, on the law, by reducing the award of alimony arrears from $8,500 to $7,250; as so modified, the judgment is affirmed, with costs to the plaintiff.

The plaintiff moved to recover arrears in alimony owed to her by the defendant pursuant to the 1977 judgment of divorce between the parties. After the defendant made a cross motion to terminate or modify his alimony obligation, a hearing was held by the Supreme Court.

The defendant contends for the first time on appeal that the Supreme Court erred in awarding counsel fees to the plaintiff based solely on the affirmations of attorneys’ services submitted to the Supreme Court by the attorneys for the plaintiff after the hearing. However, our review of the transcript of the hearing supports the plaintiff’s contention that the attorneys for the respective parties entered into an oral agreement to have attorneys’ fees awarded solely on the basis of affirmations. Although no oral agreement was transcribed in the record, at the close of the hearing, the plaintiff’s counsel stated that he was going to submit an affirmation of attorneys’ services to the court, upon notice to the attorney for the defendant. The attorney for the defendant made no objection at that time, and there is no indication in the record that any objection was made, prior to this appeal, to the award of counsel fees based solely on the affirmations of services submitted by the attorneys for the plaintiff. Under these circumstances, the award of counsel fees made by the Supreme Court based solely on the affirmations of services submitted by the attorneys for the plaintiff was proper (see, Melone v Melone, 113 AD2d 745).

The Supreme Court erred in awarding the plaintiff a sum representing the accumulated alimony arrears as of the date of the written decision on the hearing, which was rendered 10 weeks after the close of the hearing. The plaintiff properly gave written notice of her intention to amend her application for enforcement to include additional arrears which accrued since the commencement of her enforcement proceeding pursuant to Domestic Relations Law § 244-a. That section provides for the award of arrears "at the time of a hearing upon or submission of the matter”, which entitled her to recover additional alimony arrears which accrued until the close of the hearing on the alimony issues. There is no basis for the plaintiff to recover the alimony arrears which accrued from the time of the close of the hearing until the submission of posthearing memoranda or until the written decision based on [703]*703the hearing (see, Scheinkman, Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § 244-a, at 777). The alimony arrears which had accrued as of the close of the hearing totaled $7,250 and the judgment is modified accordingly.

We disagree with our learned colleague concerning the import of the plaintiff’s cohabitation with one Otto Hoech after her divorce from the defendant. The determination by the Supreme Court that the defendant “failed to show that the plaintiff has * * * conducted her life in such a way as to hold herself out as being married” to Mr. Hoech was an accurate assessment that the defendant failed to meet his burden of proof on this issue (see, Matter of Bliss v Bliss, 66 NY2d 382, 384). We note that the testimony by the plaintiff that she uses the last name of the defendant, not of Mr. Hoech, in the conduct of all of her professional and social activities and that she has never told anyone that Mr. Hoech was her husband was uncontradicted by the defendant. Moreover, despite the presence of Mr. Hoech at the hearing, the defendant failed to call him to testify. Consequently, due to the defendant’s failure to prove not only that the plaintiff was living with Mr. Hoech, but that she was “holding herself out as his wife” (Domestic Relations Law § 248), the Supreme Court did not have the discretion pursuant to Domestic Relations Law §248 to modify or annul the defendant’s alimony obligation (see, Matter of Bliss v Bliss, supra).

Finally, we note that the defendant failed to demonstrate a significant change in the financial circumstances of either himself or the plaintiff which would warrant a modification of the defendant’s alimony obligation. Kunzeman, J. P., Rubin and Kooper, JJ., concur.

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[702]*702Ordered that the judgment is modified, on the law, by reducing the award of alimony arrears from $8,500 to $7,250; as so modified, the judgment is affirmed, with costs to the plaintiff.

The plaintiff moved to recover arrears in alimony owed to her by the defendant pursuant to the 1977 judgment of divorce between the parties. After the defendant made a cross motion to terminate or modify his alimony obligation, a hearing was held by the Supreme Court.

The defendant contends for the first time on appeal that the Supreme Court erred in awarding counsel fees to the plaintiff based solely on the affirmations of attorneys’ services submitted to the Supreme Court by the attorneys for the plaintiff after the hearing. However, our review of the transcript of the hearing supports the plaintiff’s contention that the attorneys for the respective parties entered into an oral agreement to have attorneys’ fees awarded solely on the basis of affirmations. Although no oral agreement was transcribed in the record, at the close of the hearing, the plaintiff’s counsel stated that he was going to submit an affirmation of attorneys’ services to the court, upon notice to the attorney for the defendant. The attorney for the defendant made no objection at that time, and there is no indication in the record that any objection was made, prior to this appeal, to the award of counsel fees based solely on the affirmations of services submitted by the attorneys for the plaintiff. Under these circumstances, the award of counsel fees made by the Supreme Court based solely on the affirmations of services submitted by the attorneys for the plaintiff was proper (see, Melone v Melone, 113 AD2d 745).

The Supreme Court erred in awarding the plaintiff a sum representing the accumulated alimony arrears as of the date of the written decision on the hearing, which was rendered 10 weeks after the close of the hearing. The plaintiff properly gave written notice of her intention to amend her application for enforcement to include additional arrears which accrued since the commencement of her enforcement proceeding pursuant to Domestic Relations Law § 244-a. That section provides for the award of arrears "at the time of a hearing upon or submission of the matter”, which entitled her to recover additional alimony arrears which accrued until the close of the hearing on the alimony issues. There is no basis for the plaintiff to recover the alimony arrears which accrued from the time of the close of the hearing until the submission of posthearing memoranda or until the written decision based on [703]*703the hearing (see, Scheinkman, Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § 244-a, at 777). The alimony arrears which had accrued as of the close of the hearing totaled $7,250 and the judgment is modified accordingly.

We disagree with our learned colleague concerning the import of the plaintiff’s cohabitation with one Otto Hoech after her divorce from the defendant. The determination by the Supreme Court that the defendant “failed to show that the plaintiff has * * * conducted her life in such a way as to hold herself out as being married” to Mr. Hoech was an accurate assessment that the defendant failed to meet his burden of proof on this issue (see, Matter of Bliss v Bliss, 66 NY2d 382, 384). We note that the testimony by the plaintiff that she uses the last name of the defendant, not of Mr. Hoech, in the conduct of all of her professional and social activities and that she has never told anyone that Mr. Hoech was her husband was uncontradicted by the defendant. Moreover, despite the presence of Mr. Hoech at the hearing, the defendant failed to call him to testify. Consequently, due to the defendant’s failure to prove not only that the plaintiff was living with Mr. Hoech, but that she was “holding herself out as his wife” (Domestic Relations Law § 248), the Supreme Court did not have the discretion pursuant to Domestic Relations Law §248 to modify or annul the defendant’s alimony obligation (see, Matter of Bliss v Bliss, supra).

Finally, we note that the defendant failed to demonstrate a significant change in the financial circumstances of either himself or the plaintiff which would warrant a modification of the defendant’s alimony obligation. Kunzeman, J. P., Rubin and Kooper, JJ., concur.

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Bluebook (online)

141 A.D.2d 701, 529 N.Y.S.2d 821, 1988 N.Y. App. Div. LEXIS 7090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lancaster-v-lancaster-nyappdiv-1988.

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