Olsan v. Olsan

Apr 10, 1984
Versions:100 A.D.2d 776
474 N.Y.S.2d 57
1984 N.Y. App. Div. LEXIS 17873

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. 11 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 *777agreed 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. H 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 AD2d 712). This is the general rule unless the parties have stipulated otherwise (Sadofsky v Sadofsky, 78 AD2d 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. 11 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.