Elizabeth B. v Patrick B
Annotate this CaseDecided on August 2, 2012
Supreme Court, Westchester County
Elizabeth B., Plaintiff,
against
Patrick B., Defendant.
6908-2009
BERMAN BAVERO FRUCCO & GOUZ, P.C.
Attorneys for Plaintiff
123 Main Street
White Plains, NY 10601
MCCARTHY FINGER LLP
Attorneys for Defendant
11 Martine Avenue
White Plains, NY 10606
John P. Colangelo, J.
In this post-judgment matrimonial matter, Plaintiff Elizabeth B. ("Plaintiff") brought an [*2]Order to Show Cause to, in essence, compel Defendant Patrick B. ("Defendant") to cooperate in the sale of the former marital residence (the "Residence"). The Order to Show Cause and related Cross-Motion centered around the listing for sale and potential sale of the Residence, and the application of the Stipulation of Settlement entered into by the parties, dated March 31, 2011 (the "Stipulation") to that process. Article XI of the Stipulation sets forth a somewhat detailed mechanism for the listing and sale of the Residence, a mechanism that involved, at least initially, a named real estate broker - - C. J. - - and included specific ways in which the asking price of the Residence would be set, reduced, and ultimately how an offer to purchase would be accepted. Throughout the process, the parties were admonished by the terms of the Stipulation to "cooperate and use efforts reasonably calculated to produce the best sales price as available in the market . . ." (Stipulation, Art. IX (E)).
After motion and opposition papers were submitted and following extensive discussions with and arguments by counsel, the Court rendered a Decision in May, 2012 by which Plaintiff's motion was granted in part and denied in part, with the issue of attorney fees reserved for decision by the Court. The parties agreed to waive their respective rights to a hearing regarding attorneys fees and instead requested that the Court decide that issue on the papers. Upon review of all papers submitted by the parties, the Court concludes, for the reasons set forth below, that neither party is entitled to an award of attorney fees.
Decision and Conclusion.
DRL §237(a) vests the Supreme Court with discretion to make an award of reasonable counsel fees as justice requires, based upon the equities and circumstances of the case. As the Court of Appeals held in DeCabrera v. DeCabrera-Rosete, 70 NY2d 879, 881 (1987), "[I]n exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions." See also Morken v. Morken, 292 AD2d 431 (2d Dept. 2002) ( "An evaluation of what constitutes reasonable counsel fees is a matter generally left to the sound discretion of the trial court . . . which is often in the best position to judge those factors integral to the fixing of counsel fees.").
In the instant case, the parties' financial circumstances are not so disparate that one could be deemed to have sought an unfair advantage over the other by provoking or prolonging litigation. In any event, in the instant case, the Stipulation rather than the parties' relative economic conditions provides the standard for determining the attorney fee applications of the parties. The parties have provided in their Stipulation that attorneys fees should be imposed upon the party who violated terms of the Stipulation. As Article XVIII of the Stipulation states,
"If either party shall default in the performance of any provisions of thisStipulation, and the other Party or his or her successors shall institute and prevailin legal proceedings to enforce the performance of such provisions by thedefaulting Party, then the defaulting Party shall pay to the person who institutedsuit the necessary and reasonable costs and expenses incurred, including but notlimited to, reasonable attorney fees, in connection with such proceedings. Theprovisions of this Article shall be in addition to, and without prejudice to, any ofthe rights and remedies to which the aggrieved Party may be entitled."
However, the Stipulation, by its terms, does not preclude a finding of fault by both parties [*3]rather than one party or the other. The former is the situation that obtains herein. Both Plaintiff and Defendant failed to live up to both the letter and the spirit of the Stipulation as far as the Residence is concerned, resulting in needless litigation expense. Plaintiff insisted upon the perpetual use of C. J. as the real estate broker although not compelled under the Stipulation, and failed to cooperate with overriding goal of seeking to obtain the best possible price offer for the Residence. As far as Defendant is concerned, he insisted upon conditions - - such as a right of first refusal for the purchase pf the Residence - - that were not contained in the Stipulation and adamantly refused to consider at least one renewal of C. J.'s retention as broker, despite the fact that she was the only broker specifically named in the Stipulation. Moreover, both parties failed to perform the simple mathematical calculations set forth in Article IX of the Stipulation to determine the proper asking price for the Residence which would have resulted in an asking price consistent with their Agreement - - perhaps because such calculations would have resulted in a price lower than either party wanted or expected.
In any event, since the Court finds that both parties defaulted "in the performance of [the] provisions of this Stipulation" (Stipulation, Article XVIII) and are therefore both responsible for the litigation expenses incurred on this motion, neither party is entitled to an award of attorneys fees. See L.S. v. L.F., 10 Misc 3d 714 (Sup. Ct., Kings Co. 2005).
The foregoing constitutes the Decision and Order of this Court.
Dated: August 2, 2012
White Plains, New York
Hon. John P. Colangelo
Acting Supreme Court Justice
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