WILSON, J. RICHARD v. WILSON, REBECCA PERKINS ( 2015 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    239
    CA 14-01721
    PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
    J. RICHARD WILSON, PLAINTIFF-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    REBECCA P. WILSON, DEFENDANT-APPELLANT.
    M W MOODY LLC, NEW YORK CITY (MARK WARREN MOODY OF COUNSEL), FOR
    DEFENDANT-APPELLANT.
    KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN LLP, ROCHESTER
    (MICHAEL G. PAUL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
    Appeal from an order of the Supreme Court, Monroe County (John M.
    Owens, J.), entered April 3, 2014. The order, insofar as appealed
    from, denied defendant’s request that plaintiff be compelled to pay
    defendant for, inter alia, her moving and storage costs and counsel
    fees.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs, judgment is ordered imposing a
    sanction on defendant, and the matter is remitted to Supreme Court,
    Monroe County, to determine the amount of the sanction in accordance
    with the following memorandum: In this postjudgment matrimonial
    proceeding, defendant appeals from an order that, insofar as appealed
    from, denied her request for counsel and expert fees, as well as
    moving and storage costs. Upon entry of the underlying judgment of
    divorce, defendant received, inter alia, maintenance, plaintiff’s
    401(k) account, and the marital residence. The parties agreed that
    they would attempt to resolve any disputes over undistributed property
    before seeking judicial intervention, and plaintiff commenced this
    proceeding only when they were unable to do so. The parties
    stipulated that Supreme Court would determine on the parties’ written
    submissions the contested issue regarding distribution of certain
    personal property. The court resolved the dispute by distributing the
    property at issue and denying each parties’ request for ancillary
    relief.
    We reject defendant’s contention that the court abused its
    discretion in denying her request for counsel and expert fees because
    she is the less monied spouse. Although “[a]n award of [counsel] and
    expert fees pursuant to Domestic Relations Law § 237 (a) will
    generally be warranted where there is a significant disparity in the
    financial circumstances of the parties” (Vitale v Vitale, 112 AD3d
    614, 615; see Leonard v Leonard, 109 AD3d 126, 129-130), the ultimate
    -2-                           239
    CA 14-01721
    decision whether to award such fees “lies, in the first instance, in
    the discretion of the trial court and then in the Appellate Division
    whose discretionary authority is as broad as [that of] the trial
    court[]” (O’Brien v O’Brien, 66 NY2d 576, 590). “[I]n exercising its
    discretionary power to award counsel [and expert] fees, a court should
    review the financial circumstances of both parties together with all
    the other circumstances of the case, which may include the relative
    merit of the parties’ positions” (DeCabrera v Cabrera-Rosete, 70 NY2d
    879, 881; see Gilliam v Gilliam, 109 AD3d 871, 873; Ciampa v Ciampa,
    47 AD3d 745, 748). “A court may consider whether either party has
    engaged in conduct or taken positions resulting in a delay of the
    proceedings or unnecessary litigation” (Vitale, 112 AD3d at 615).
    Here, we conclude that the court did not abuse its discretion in
    declining to award counsel and expert fees to defendant inasmuch as
    this postjudgment proceeding was the result of her obstructionist
    conduct (see Johnson v Chapin, 12 NY3d 461, 467, rearg denied 13 NY3d
    888; Vitale, 112 AD3d at 615; Blake v Blake [appeal No. 1], 83 AD3d
    1509, 1509). In addition, the relative merit of plaintiff’s position
    in the underlying litigation weighs in favor of denying defendant’s
    application for counsel and expert fees (see generally DeCabrera, 70
    NY2d at 881-882; Chesner v Chesner, 95 AD3d 1252, 1253).
    Similarly, we conclude that the court did not abuse its
    discretion in denying defendant’s request for moving and storage costs
    where, as here, the record establishes that the costs incurred by
    defendant were entirely avoidable, and were the result of her own
    obstructionist tactics (see generally Blake, 83 AD3d at 1509).
    Finally, we agree with plaintiff that it is appropriate to
    sanction defendant in this case because the appendix provided by
    defendant, as the appellant, failed to include “such parts of the
    record on appeal as are necessary to consider the questions involved,
    including those parts the appellant reasonably assumes will be relied
    upon by the respondent” (CPLR 5528 [a] [5]; see 22 NYCRR 1000.4 [d]
    [2] [i]; Mure v Mure, 92 AD3d 653, 653; Wittig v Wittig, 258 AD2d 883,
    884-885; cf. Grossman v Composto-Longhi, 96 AD3d 1000, 1001). Because
    of her failure to comply with this requirement, we sanction defendant
    by imposing costs equal to the amount incurred by plaintiff in the
    preparation and submission of his own appendix to defend this appeal
    (see CPLR 5528 [e]; Wittig, 258 AD2d at 885; see generally Mure, 92
    AD3d at 653), and we remit the matter to Supreme Court to determine
    that amount, excluding attorneys’ fees (see Wittig, 258 AD2d at 885).
    Entered:   May 1, 2015                          Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 14-01721

Filed Date: 5/1/2015

Precedential Status: Precedential

Modified Date: 4/17/2021