Opinion
March 13, 1989
Appeal from the Supreme Court, Westchester County (Gurahian, J.).
Ordered that the appeal from the order is dismissed as the portion of the order appealed from by the defendant was superseded by the entry of the judgment thereon; and it is further,
Ordered that the order is reversed insofar as cross-appealed from, that branch of the plaintiff's motion which was for an award of counsel fees is granted, and the matter is remitted to the Supreme Court, Westchester County, to determine the proper amount thereof; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment on the portion of the order appealed from by the defendant (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The parties entered into a stipulation of settlement of certain aspects of the divorce action which provided, inter alia, that the defendant would pay the plaintiff a specific sum for her maintenance and for the support of their infant son, who was in the plaintiff's custody. The stipulation was incorporated into the judgment of divorce. The defendant maintains that the amount agreed upon for maintenance and child support was to yield a net figure after taxes. When there was a change in the tax laws resulting in a reduction of taxes, the defendant concluded that the net amount received by the plaintiff exceeded the sum agreed upon. Therefore, he unilaterally reduced his gross payments.
Neither the provisions of the original stipulation of settlement nor the subsequent written amendment thereto, pertaining to monthly maintenance and child support payments, reflect any tax ramifications or mention the plaintiff's receipt of a net amount after taxes for maintenance and child support. The parol evidence rule precludes the defendant from proffering evidence of the parties' allegedly unexpressed intention to include tax consequences in the computation of maintenance and child support, for the purpose of contradicting, varying, or adding to the express terms of their written agreements (see, Richardson, Evidence § 601 [Prince 10th ed]). Consequently, the court properly awarded plaintiff a judgment for the arrears owed by the defendant.
Lastly, we find, under the circumstances of this case, that the denial of an award of counsel fees to the plaintiff, who was compelled to bring this motion to enforce the maintenance and child support provisions of the divorce judgment, constituted an improvident exercise of discretion (see, Domestic Relations Law § 238; Rubin v. Rubin, 67 A.D.2d 856). Accordingly, the matter is remitted to the Supreme Court for a determination of the reasonable amount to be awarded as counsel fees. Lawrence, J.P., Rubin, Spatt and Sullivan, JJ., concur.