Wilson v. Kilkenny

113 A.D.3d 623, 978 N.Y.2d 311

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 2014
• Status: Published

Opinion

In a prior decision and order dated May 4, 2010, this Court concluded that the father was entitled to an award of an attorney’s fee, pursuant to the parties’ stipulation of settlement, which required the mother, as the party breaching the stipulation between the parties, to indemnify the father for “all reasonable costs and expenses including an award of an attorney’s fee incurred” by her breach (Matter of Wilson v Kilkenny, 73 AD3d 796, 797 [2010]). Upon remittal, the Family Court improvidently exercised its discretion in awarding the father an attorney’s fee in the principal sum of $37,649.97. Those fees were incurred not only as a result of the mother’s breach of the stipulation, but also in opposing the mother’s cross petition to relocate with the parties’ child, which application would have been necessary in order for the mother to relocate with the child whether or not she violated the stipulation by relocating with the child prior to seeking court approval. Further, those fees were incurred by the father in pursuing his own petition for custody of the child. We conclude that an award in the principal sum of $12,550 would sufficiently indemnify the father for his attorney’s fees incurred by virtue of the mother’s breach of the stipulation. Skelos, J.P., Leventhal, Lott and Cohen, JJ., concur.