From Casetext: Smarter Legal Research

Olsan v. Olsan

Appellate Division of the Supreme Court of New York, First Department
Apr 10, 1984
100 A.D.2d 776 (N.Y. App. Div. 1984)

Opinion

April 10, 1984


Judgment (resettled) of the Supreme Court, New York County (H. Schwartz, J.), entered September 12, 1983, which, inter alia, awarded the attorney for defendant wife counsel fees of $14,750 plus expenses of $226.80, is unanimously modified, on the law and facts and in the exercise of discretion, to reduce the said award of counsel fees to $7,500 plus expenses, and otherwise affirmed, without costs. ¶ Plaintiff husband brought this action for divorce and defendant wife counterclaimed for separation. In a stipulation in open court on April 6, 1983, it was agreed that plaintiff would withdraw his two causes of action for divorce and the defendant would proceed on her counterclaim for separation, with no opposition from the plaintiff. The parties also stipulated as to maintenance payments by the husband, the waiver by him of any right to the marital residence, and the payment of rent on said residence by the wife. Further, the parties stipulated that defendant's counsel fees would be agreed upon by the attorneys for the parties or they would be fixed by the court upon submission of an affidavit of services and the response thereto. ¶ Plaintiff asserts that Special Term erred in not directing a hearing to determine the appropriate counsel fees. In the final fixation of counsel fees, the court should base its determinations upon testimonial and other trial evidence of the financial condition of the parties ( Fomenko v Fomenko, 50 A.D.2d 712). This is the general rule unless the parties have stipulated otherwise ( Sadofsky v Sadofsky, 78 A.D.2d 520; see, also, Fomenko v Fomenko, supra). Here, both parties separately agreed, on the record, to the stipulation allowing the court to fix the fees, which it did upon submission of affidavits from both counsel. ¶ However, upon the record before the court, we feel that the specific amount awarded was not warranted, and in the exercise of discretion we reduce such amount to $7,500 plus expenses.

Concur — Murphy, P.J., Asch, Bloom, Fein and Alexander, JJ.


Summaries of

Olsan v. Olsan

Appellate Division of the Supreme Court of New York, First Department
Apr 10, 1984
100 A.D.2d 776 (N.Y. App. Div. 1984)
Case details for

Olsan v. Olsan

Case Details

Full title:DAVID OLSAN, Appellant, v. EVA W. OLSAN, Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 10, 1984

Citations

100 A.D.2d 776 (N.Y. App. Div. 1984)

Citing Cases

Reehill v. Reehill

Contrary to the contention of the plaintiff husband, the Supreme Court did not err in awarding counsel fees…

Nacos v. Nacos

Moreover, to the extent the credit appears to be a punitive award of attorneys' fees to the monied spouse…