Opinion
February 8, 1999
Appeal from the Supreme Court, Westchester County (Barone, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, that branch of the defendant's motion which was for an award of an attorney's fee is granted, and the matter is remitted to the Supreme Court, Westchester County, for a hearing to determine the amount of the attorney's fee to be awarded to the defendant.
The parties' separation agreement, which was incorporated but not merged in the judgment of divorce, included a default provision which obligated the party in default under the agreement to indemnify and reimburse the nondefaulting party for a reasonable attorney's fee incurred in bringing suit to enforce the terms of the agreement in the event the suit resulted in an order in favor of the nondefaulting party. If the defaulting party complied with the terms of the agreement after the suit was commenced but prior to entry of a judgment, such was to be deemed a result in favor of the nondefaulting party.
The defendant moved, inter alia, for a hearing to determine whether the plaintiff should be found in contempt after the plaintiff failed to make certain payments which were required by their agreement. Before the return date of the motion, the plaintiff paid the arrears in full. As this was deemed a result in the defendant's favor under the default provision of their agreement, the plaintiff was contractually obligated to pay the reasonable attorney's fee incurred on the motion ( see, Zeitlin v. Zeitlin, 250 A.D.2d 606; Bonelli v. Bonelli, 189 A.D.2d 794; Canick v. Canick, 122 A.D.2d 767).
The parties' agreement, however, did not authorize an award of an attorney's fee for costs incurred in obtaining that fee ( cf., Schussler v. Schussler, 123 A.D.2d 618). A hearing is required since the attorney's affirmation is inadequate to determine the amount of time which was devoted to the defendant's claim for arrears, as opposed to the claim for an attorney's fee. Furthermore, since the parties did not stipulate to resolve the fee issue on the attorney's affirmation, the plaintiff is entitled to a hearing to explore the reasonableness of the fee request ( see, Morris v. Morris, 251 A.D.2d 638; Santora v. Nicolini, 237 A.D.2d 504).
The plaintiff's remaining contentions are without merit.
Mangano, P. J., O'Brien, Krausman and Goldstein, JJ., concur.