Oxman v Oxman

Oxman v Oxman 2010 NY Slip Op 08642 [78 AD3d 578] November 23, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

Ellen Oxman, Appellant,
v
John Craig Oxman, Respondent.

—[*1] Alter & Alter LLP, New York (Stanley Alter of counsel), for appellant.

Blank Rome LLP, New York (Jay D. Silverstein of counsel), for respondent.

Order, Supreme Court, New York County (Saralee Evans, J.), entered on or about November 6, 2009, which denied plaintiff's motion for legal fees incurred in filing a postjudgment petition to modify a stipulated settlement, unanimously affirmed, without costs.

In 2007, plaintiff petitioned to modify the stipulated custody provisions of a parenting agreement that had been incorporated in the judgment of divorce. The subject matter of that petition was resolved in an amended parenting agreement in 2009, the final paragraph of which stipulated that "Both Parents agree that the Mother's attorney may petition the court for the payment of legal fees resulting from this litigation." A paragraph in the original parenting agreement that survived the amended agreement, under which plaintiff now claims fees and costs, applies not to this type of proceeding—a change in circumstances, warranting a change in child custody—but rather to where one party has breached the agreement. There was not even an allegation of breach here. Even if there had been, recovery of counsel fees would, under the relevant language of the original agreement, be available only if the party seeking relief "substantially prevail[ed]" in her application, which was not the case here.

We have considered plaintiff's remaining contention and find it unavailing. Concur—Andrias, J.P., Catterson, Moskowitz, Manzanet-Daniels and RomÁn, JJ.