Raif v. Raif , 738 N.Y.S.2d 873 ( 2002 )

In a matrimonial action in which the parties were divorced by judgment dated March 8, 1999, the defendant appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Orange County (Slobod, J.), dated September 13, 2000, as, upon granting that branch of the plaintiff’s motion which was to reform the parties’ separation agreement, and upon an order of the same court dated September 13, 2000, which granted that branch of the plaintiff’s motion which was for an award of an attorney’s fee, reformed the separation agreement, awarded arrears to the plaintiff in connection with such reformation, and awarded an attorney’s fee to the plaintiff.

Ordered that the order and judgment is affirmed insofar as appealed from, with costs.

Contrary to the defendant’s contention, the Supreme Court properly reformed the separation agreement, as the plaintiff met her burden of proving by a "high order of evidence” that the separation agreement did not manifest the true intent of the parties (Chimart Assoc. v Paul, 66 NY2d 570, 574). Furthermore, considering the relative merit of the parties’ positions and their respective financial circumstances, the award of an attorney’s fee to the plaintiff was a provident exercise of its discretion (see, DeCabrera v Cabrera-Rosete, 70 NY2d 879). Altman, J.P., Adams, Townes and Crane, JJ., concur.