OTT v. OTT (1999)

 Supreme Court properly determined that the agreement of the parties settling their divorce requires defendant to pay maintenance as a percentage of his income as reported in box 5 of his W-2 statements.  “The words and phrases used in an agreement must be given their plain meaning so as to define the rights of the parties” (Bottitta v. Bottitta, 194 A.D.2d 510, 513, 598 N.Y.S.2d 304).   It is presumed that an agreement that is prepared by attorneys is “drawn with reference to applicable law” (Nau v. Vulcan Rail & Constr. Co., 286 N.Y. 188, 199, 36 N.E.2d 106, rearg. denied 287 N.Y. 630, 39 N.E.2d 267).   By their use of the terms “gross earned income” and “gross earnings”, it is apparent that the parties intended that all income derived from defendant's employment, including fringe benefits and perquisites supplied by defendant's employer, be used as the basis for calculating maintenance payments (see, Keene v. Keene, 175 A.D.2d 666, 572 N.Y.S.2d 592;  Williamson v. Williamson, 84 A.D.2d 606, 607, 444 N.Y.S.2d 487, lv. denied 55 N.Y.2d 604, 447 N.Y.S.2d 1027, 432 N.E.2d 142;  Krell v. Krell, 192 Misc. 1, 80 N.Y.S.2d 168, affd. 274 App.Div. 972, 85 N.Y.S.2d 895, rearg. denied 274 App.Div. 1029, 86 N.Y.S.2d 654;  see also, Hickland v. Hickland, 39 N.Y.2d 1, 5, 382 N.Y.S.2d 475, 346 N.E.2d 243, rearg. denied 39 N.Y.2d 943, 386 N.Y.S.2d 1028, 352 N.E.2d 896, cert. denied 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310).   Only the income reported in box 5 of defendant's W-2 form includes the value of those fringe benefits and perquisites.   We reject defendant's contention that the doctrine of practical construction applies to this case (see, Continental Cas. Co. v. Rapid-American Corp., 80 N.Y.2d 640, 651, 593 N.Y.S.2d 966, 609 N.E.2d 506).   If the parties intended that maintenance payments be tied to defendant's “gross taxable income”, as defendant contends, they could have so provided (see, Huntington v. Huntington, 80 A.D.2d 634, 635, 436 N.Y.S.2d 85).

 We reject defendant's contention that the court abused its discretion in awarding plaintiff attorneys' fees (see, Domestic Relations Law § 238).   The court erred, however, in awarding attorneys' fees without a hearing regarding the extent and value of the services rendered (see, Carlson-Subik v. Subik, 257 A.D.2d 859, 684 N.Y.S.2d 65;  Morris v. Morris, 251 A.D.2d 637, 676 N.Y.S.2d 202;  Nee v. Nee, 240 A.D.2d 478, 479-480, 658 N.Y.S.2d 440).   We therefore modify the order by vacating the amount of attorneys' fees awarded, and we remit the matter to Supreme Court for a hearing on that issue.

Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings.

MEMORANDUM: