Garner v. Garner , 847 N.Y.S.2d 870 ( 2007 )

Carpinello, J.

Appeal from an order of the Supreme Court (Breen, J.), entered July 27, 2006 in Warren County, which, among other things, granted plaintiffs motion for counsel fees.

The circumstances of the present divorce action are set forth more fully in our decision upon defendant’s appeal of Supreme Court’s October 2005 judgment of divorce (Garner v Garner, 46 AD3d 1239 [2007] [decided herewith]). Following the filing of the notice of appeal in the underlying divorce action, plaintiff sought counsel fees in connection with the appeal based upon the counsel fees provision of the parties’ postmarital agreement. Defendant opposed the application. Supreme Court denied defendant’s cross motion, granted plaintiffs motion with respect to certain counsel fees and scheduled a hearing regarding the amount of the award. Defendant now appeals.

At issue here is a provision in the parties’ postmarital agreement which provides that “[i]n the event that [plaintiff] does file for divorce, [defendant] agrees to pay all of [plaintiffs] attorney’s fees . . . necessary in order for her to effectuate the terms of this agreement and obtain the divorce.” We have previously observed that “the ‘defense of an appeal is part of the carrying on or defense of the underlying action or proceeding’ ” (Holloway v Holloway, 307 AD2d 405, 407 [2003], quoting Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § 237, at 23; see McBride v McBride, 119 NY 519, 521-522 [1890]). Inasmuch as defense of the judgment of divorce on direct appeal is a necessary constituent of “effectuating] the terms of [the] agreement and obtain[ing] the divorce,” the plain language of the parties’ agreement embraces an award of counsel fees incurred in defense of the direct appeal. Considering that we have found the parties’ postmarital agreement to be valid and enforceable (Garner v Garner, 46 AD3d at 1240), we affirm Supreme Court’s order.

Crew III, J.P., Peters, Spain and Mugglin, JJ., concur. Ordered that the order is affirmed, without costs.