Opinion
2012-07-6
Kathleen E. ANDRESS, Plaintiff–Respondent, v. Terrance A. ANDRESS, Defendant–Appellant. (Appeal No. 1.)
Labin & Buffomante, Williamsville (Clayton J. Lenhardt of Counsel), for Defendant–Appellant. Zarcone Associates, PLLC, Getzville (Kelly V. Zarcone of Counsel), for Plaintiff–Respondent.
Labin & Buffomante, Williamsville (Clayton J. Lenhardt of Counsel), for Defendant–Appellant. Zarcone Associates, PLLC, Getzville (Kelly V. Zarcone of Counsel), for Plaintiff–Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from an order in this post-matrimonial proceeding that, inter alia, directed him to pay plaintiff's counsel fees. Initially, we note that defendant's contentions regarding the amounts of maintenance and interest he was required to repay to plaintiff are not properly before this Court because Supreme Court decided those issues in a prior order from which defendant has not taken an appeal nor, in any event, is that order included in the record on appeal ( seeCPLR 5501[a]; Matter of Wahlstrom v. Carlson, 55 A.D.3d 1399, 1400, 864 N.Y.S.2d 366;Vigliotti v. State of New York, 24 A.D.3d 1217, 1218, 805 N.Y.S.2d 919,lv. denied6 N.Y.3d 819, 812 N.Y.S.2d 459, 845 N.E.2d 1290,6 N.Y.3d 854, 816 N.Y.S.2d 760, 849 N.E.2d 983). We agree with defendant, however, that the court abused its discretion in granting that part of plaintiff's motion seeking an award of counsel fees ( see Carnicelli v. Carnicelli, 300 A.D.2d 1093, 1094, 752 N.Y.S.2d 758;see generally McCracken v. McCracken, 12 A.D.3d 1201, 1201, 784 N.Y.S.2d 437). While plaintiff asserted in support of her motion that she incurred counsel fees solely because of defendant's failure to disclose his remarriage, the record establishes that, even had he disclosed that information, the contested issues regarding maintenance would have nevertheless required litigation. Moreover, the record is silent regarding the court's rationale for awarding plaintiff counsel fees, and “thus we are unable to determine whether the court considered ‘appropriate factors' in granting” that part of plaintiff's motion ( Carnicelli, 300 A.D.2d at 1094, 752 N.Y.S.2d 758;see generally Vicinanzo v. Vicinanzo, 193 A.D.2d 962, 966, 598 N.Y.S.2d 362). We conclude on the record before us that the award is not appropriate, and we therefore modify the order in appeal No. 1 by denying that part of plaintiff's motion seeking counsel fees and vacating the award of counsel fees.
With respect to appeal No. 2, we note that defendant appeals from an amended domestic relations order (DRO) and that no appeal as of right lies from a DRO ( see Cuda v. Cuda [appeal No. 2], 19 A.D.3d 1114, 1114, 796 N.Y.S.2d 821). While we may treat the notice of appeal in appeal No. 2 as an application for leave to appeal ( see id.), we see no need to do so in light of our determination in appeal No. 1.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of plaintiff's motion seeking counsel fees and vacating the award of counsel fees and as modified the order is affirmed without costs.