Mattana v. Mattana

79 A.D.2d 702, 434 N.Y.S.2d 267, 1980 N.Y. App. Div. LEXIS 14093

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1980
• Status: Published

Opinion

In a divorce action, the parties cross-appeal from stated portions of a judgment of the Supreme Court, Nassau County, dated April 20, 1979, which, inter alia, awarded plaintiff a divorce, denied defendant exclusive occupancy of the marital home, directed that plaintiff pay arrears due under a prior Family Court order and awarded counsel fees to the defendant encompassing services rendered by her attorney in courts other than the Supreme Court. Judgment modified, on the law, by deleting the sixth and eighth' decretal paragraphs thereof. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements, and matter remanded to Trial Term for further proceedings consistent herewith. The counsel fee award of $10,000 erroneously included the value of services rendered by defendant’s counsel in Family Court proceedings (see Murena v Murena, 75 AD2d 640). It also, apparently, erroneously included services rendered in the Civil Court (Small Claims Part) and Appellate Term in defense of an action instituted by plaintiff’s father. The matter is remanded to Trial Term to determine the amount by which the counsel fee award must be diminished by exclusion of the value of such services. Since the court properly awarded a divorce to the plaintiff husband on the ground of cruel and inhuman treatment, following a jury verdict in his favor, it was error to grant judgment to the defendant as to the arrears due her under an outstanding Family Court order of support (see Davis v Davis, 77 AD2d 890; Galietti v Galietti, 75 AD2d 613; Matter of Mammon v Mammon, 54 AD2d 762). Damiani, J. P., Titone, Cohalan and Weinstein, JJ., concur.