DELBELLO, LYNN M. v. DELBELLO, THOMAS M. , 954 N.Y.S.2d 319 ( 2012 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1138
    CA 11-01346
    PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.
    LYNN M. DELBELLO, PLAINTIFF-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    THOMAS M. DELBELLO, DEFENDANT-APPELLANT.
    (APPEAL NO. 1.)
    THOMAS M. DELBELLO, DEFENDANT-APPELLANT PRO SE.
    KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (LAURA J. EMERSON OF
    COUNSEL), FOR PLAINTIFF-RESPONDENT.
    Appeal from an order of the Supreme Court, Erie County (John F.
    O’Donnell, J.), dated January 21, 2010 in a divorce action. The order
    directed defendant to pay plaintiff’s counsel fees of $3,982.73.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs.
    Memorandum: These consolidated appeals arise from a matrimonial
    action. In appeal No. 1, defendant contends that Supreme Court erred
    in awarding counsel fees to plaintiff without conducting a hearing.
    “That contention is not preserved for our review inasmuch as defendant
    failed to request a hearing with respect to the ability of plaintiff
    to pay her own counsel fees or the extent and value of the legal
    services rendered to her” (Sharlow v Sharlow, 77 AD3d 1430, 1432).
    In appeal No. 2, defendant contends that the court erred by
    increasing the weekly award of maintenance from $75, the amount
    recommended by the Referee, to $200. We reject defendant’s contention
    that the court erred in imputing income to him, inasmuch as the court
    in fact declined to impute income to him, and the record fails to
    support defendant’s further contention that the court erred in failing
    to consider his living expenses when it increased the amount of
    maintenance recommended by the Referee. We agree with defendant,
    however, that the court failed to “set forth the factors it considered
    and the reasons for its decision” to increase the amount of
    maintenance (Domestic Relations Law § 236 [B] [6] [b]). In view of
    the court’s rejection of the Referee’s recommendation with respect to
    the amount of maintenance, the court’s statement that it was making
    the increased award of maintenance “[f]or the same reasons outlined by
    the [R]eferee” is not sufficient to satisfy the statutory requirement
    (cf. Boardman v Boardman, 300 AD2d 1110, 1110; McCanna v McCanna, 274
    AD2d 949, 949). We therefore modify the judgment in appeal No. 2
    -2-                          1138
    CA 11-01346
    accordingly, and we remit the matter to Supreme Court for a new
    determination of the amount of maintenance, following a hearing if
    necessary.
    With respect to appeal No. 3, we conclude that the court erred in
    disbursing the funds remaining in the escrow account of plaintiff’s
    attorney to plaintiff and plaintiff’s attorney. The judgment in
    appeal No. 2 provided that the funds remaining in that account were to
    be divided equally between the parties. Further, in view of
    defendant’s objections, the court erred in adopting the disbursement
    proposed by plaintiff’s attorney without conducting a hearing (see
    generally Pordum v Pordum [appeal No. 2], 248 AD2d 953, 954). We
    therefore modify the order in appeal No. 3 accordingly, and we remit
    the matter to Supreme Court for a hearing concerning the parties’
    respective shares of the funds in the escrow account.
    Entered:   November 9, 2012                     Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 11-01346

Citation Numbers: 100 A.D.3d 1436, 954 N.Y.S.2d 319

Filed Date: 11/9/2012

Precedential Status: Precedential

Modified Date: 1/12/2023