Oxman v. Oxman

Appellate Division of the Supreme Court of New York

Oxman v. Oxman

78 A.D.3d 578, 910 N.Y.S.2d 652

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

DecidedNovember 23, 2010

StatusPublished

This text of 78 A.D.3d 578 (Oxman v. Oxman) 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

Oxman v. Oxman, 78 A.D.3d 578, 910 N.Y.S.2d 652 (N.Y. Ct. App. 2010).

Pincite

Opinion

Order, Supreme Court, New York County (Saralee Evans, J.), entered on or about November 6, 2009, which denied plaintiffs motion for legal fees incurred in filing a postjudgment petition to modify a stipulated settlement, unanimously affirmed, without costs.

In 2007, plaintiff petitioned to modify the stipulated custody provisions of a parenting agreement that had been incorporated in the judgment of divorce. The subject matter of that petition was resolved in an amended parenting agreement in 2009, the final paragraph of which stipulated that “Both Parents agree that the Mother’s attorney may petition the court for the payment of legal fees resulting from this litigation.” A paragraph in the original parenting agreement that survived the amended agreement, under which plaintiff now claims fees and costs, applies not to this type of proceeding — a change in circumstances, warranting a change in child custody — but rather to where one party has breached the agreement. There was not even an allegation of breach here. Even if there had been, recovery of counsel fees would, under the relevant language of the original agreement, be available only if the party seeking relief “substantially prevailed]” in her application, which was not the case here.

We have considered plaintiffs remaining contention and find it unavailing. Concur — Andrias, J.P., Catterson, Moskowitz, Manzanet-Daniels and Román, JJ.

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Order, Supreme Court, New York County (Saralee Evans, J.), entered on or about November 6, 2009, which denied plaintiffs motion for legal fees incurred in filing a postjudgment petition to modify a stipulated settlement, unanimously affirmed, without costs.

In 2007, plaintiff petitioned to modify the stipulated custody provisions of a parenting agreement that had been incorporated in the judgment of divorce. The subject matter of that petition was resolved in an amended parenting agreement in 2009, the final paragraph of which stipulated that “Both Parents agree that the Mother’s attorney may petition the court for the payment of legal fees resulting from this litigation.” A paragraph in the original parenting agreement that survived the amended agreement, under which plaintiff now claims fees and costs, applies not to this type of proceeding — a change in circumstances, warranting a change in child custody — but rather to where one party has breached the agreement. There was not even an allegation of breach here. Even if there had been, recovery of counsel fees would, under the relevant language of the original agreement, be available only if the party seeking relief “substantially prevailed]” in her application, which was not the case here.

We have considered plaintiffs remaining contention and find it unavailing. Concur — Andrias, J.P., Catterson, Moskowitz, Manzanet-Daniels and Román, JJ.

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Bluebook (online)

78 A.D.3d 578, 910 N.Y.S.2d 652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oxman-v-oxman-nyappdiv-2010.