Mina v. Weber

Oct 2, 2003
Appeal No. 2
Versions:309 A.D.2d 1252
765 N.Y.S.2d 811

Appeal from that part of an order of Family Court, Monroe County (O’Connor, J.), entered June 5, 2002, that denied counsel fees to respondent.

It is hereby ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Family Court, Monroe County, for further proceedings in accordance with the following Memorandum: Family Court erred in denying counsel fees to respondent without first conducting a hearing on the relative equities and financial circumstances of the parties (see Domestic Relations Law § 237; Matter of Mullen v Just, 288 AD2d 476, 477 [2001], lv denied 97 NY2d 613 [2002], cert denied 537 US 820 [2002]). “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 * * * unless the parties have stipulated otherwise” (Olsan v Olsan, 100 AD2d 776, 777 [1984], appeal dismissed 63 NY2d 649 [1984]; see Oswald v Oswald, 154 AD2d 817, 819 [1989]; Ryan v Ryan, 92 AD2d 889 [1983]). In the absence of anything in the record that could be construed as a stipulation for the court to determine the issue of counsel fees without an evidentiary hearing, we reverse the order insofar as appealed from and remit the matter to Family Court, Monroe County, to conduct such a hearing. Present — Pigott, Jr., P.J., Green, Scudder, Gorski and Hayes, JJ.