Theroux v. Theroux

Appellate Division of the Supreme Court of New York

Theroux v. Theroux

112 A.D.2d 288, 491 N.Y.S.2d 733, 1985 N.Y. App. Div. LEXIS 56080

Appellate Division of the Supreme Court of the State of New York·Decided July 15, 1985·Published·Cited by 2 cases

Opinion

In a matrimonial action, the plaintiff husband appeals from a judgment of the Supreme Court, Nassau County (Kelly, J.), dated September 25, 1984, which awarded the defendant wife the sum of $8,496.50 for counsel fees, expenses, costs and disbursements.

Judgment reversed, without costs or disbursements, and matter remitted to the Supreme Court, Nassau County, for a hearing and a new determination in accordance herewith.

Special Term based its determination, in part, on a finding that plaintiff engaged in certain needless and time-wasting legal maneuvers which precluded the need for a hearing. Upon this record, however, we cannot say that "the husband’s conduct [was] so clearly obstructionistic as to warrant affirmance of the order, without remanding for an evidentiary hearing” (Stern v Stern, 67 AD2d 253, 254). We therefore remit the matter for a hearing and a new determination on the issue of counsel fees, expenses, costs and disbursements (Entwistle v Entwistle, 92 AD2d 879, 880, appeal dismissed 59 NY2d 966; Sadofsky v Sadofsky, 78 AD2d 520). Brown, J. P., Weinstein, Niehoff and Lawrence, JJ., concur.

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In a matrimonial action, the plaintiff husband appeals from a judgment of the Supreme Court, Nassau County (Kelly, J.), dated September 25, 1984, which awarded the defendant wife the sum of $8,496.50 for counsel fees, expenses, costs and disbursements.

Judgment reversed, without costs or disbursements, and matter remitted to the Supreme Court, Nassau County, for a hearing and a new determination in accordance herewith.

Special Term based its determination, in part, on a finding that plaintiff engaged in certain needless and time-wasting legal maneuvers which precluded the need for a hearing. Upon this record, however, we cannot say that "the husband’s conduct [was] so clearly obstructionistic as to warrant affirmance of the order, without remanding for an evidentiary hearing” (Stern v Stern, 67 AD2d 253, 254). We therefore remit the matter for a hearing and a new determination on the issue of counsel fees, expenses, costs and disbursements (Entwistle v Entwistle, 92 AD2d 879, 880, appeal dismissed 59 NY2d 966; Sadofsky v Sadofsky, 78 AD2d 520). Brown, J. P., Weinstein, Niehoff and Lawrence, JJ., concur.

Theroux v. Theroux, 112 A.D.2d 288, 491 N.Y.S.2d 733, 1985 N.Y. App. Div. LEXIS 56080 (N.Y. Ct. App. 1985).

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Opinion

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