REDGRAVE v. REDGRAVE (2005)

Appeal from an order of the Supreme Court (Seibert Jr., J.), entered April 8, 2004 in Saratoga County, which denied defendant's motion for an award of counsel fees.

The parties were previously married.   After plaintiff was granted a divorce (304 A.D.2d 1062, 759 N.Y.S.2d 233 [2003] ), a trial was held on the issue of equitable distribution (13 A.D.3d 1015, 788 N.Y.S.2d 200 [2004] ).   At the conclusion of the trial, Supreme Court awarded defendant, among other things, maintenance of $300 per week until the age of 62, one half of plaintiff's interest in a business known as Sneeringer, Monahan, Provost, Redgrave Title Agency, Inc. (hereinafter SMPR) in the amount of $152,500 and one half of the proceeds of the sale of the marital residence (13 A.D.3d 1015, 788 N.Y.S.2d 200 [2004] ).   Thereafter, defendant moved for, among other things, an award of counsel fees.   Supreme Court denied the motion, prompting this appeal.

 Initially, we note that “[t]rial courts are vested with considerable flexibility and discretion when considering counsel fee applications” (Farrell v. Cleary-Farrell, 306 A.D.2d 597, 600, 761 N.Y.S.2d 357 [2003] ).   Indeed, the statute provides that counsel fees may be awarded to a spouse “to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard for the circumstances of the case and of the respective parties” (Domestic Relations Law § 237[a];  see DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 [1987] ).   The relative financial positions of the parties, including amounts received as a distributive award, are relevant factors to be considered in determining whether an award of counsel fees is appropriate (see Newton v. Newton, 246 A.D.2d 765, 768, 667 N.Y.S.2d 778 [1998], lv. denied 91 N.Y.2d 813, 674 N.Y.S.2d 278, 697 N.E.2d 179 [1998];  Richards v. Richards, 189 A.D.2d 1025, 1026, 592 N.Y.S.2d 872 [1993] ).

Here, while it is true that, following the denial of the counsel fee request, this Court modified the judgment by, among other things, eliminating the award of maintenance (13 A.D.3d 1015, 788 N.Y.S.2d 200 [2004] ), defendant nevertheless will receive a significant monetary distribution through his share of plaintiff's interest in SMPR and his interest in the marital residence.   Supreme Court properly considered the equitable distribution award as well as other factors in making its determination.   Under all the circumstances, we cannot say that Supreme Court abused its discretion in denying defendant's request for counsel fees.   Furthermore, given, among other things, the parties' respective financial circumstances, we find no reason to disturb the denial of counsel fees based upon the subsequent modification of the maintenance award.

We have examined defendant's remaining arguments and find them unpersuasive.

ORDERED that the order is affirmed, without costs.

CARDONA, P.J.

MERCURE, SPAIN, CARPINELLO and LAHTINEN, JJ., concur.