RACZ v. RACZ

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Supreme Court, Appellate Division, First Department, New York.

Ellen RACZ, Plaintiff-Respondent, v. Andrew RACZ, Defendant-Appellant.

Decided: October 19, 2004

NARDELLI, J.P., SAXE, SULLIVAN, ELLERIN, SWEENY, JJ. Maya C. Likar, of the Massachusetts Bar, admitted pro hac vice, for appellant. Eugene A. Wolkoff, Sante Fe, NM, for respondent.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered on or about November 19, 2003, which, in a pre-equitable distribution action, denied defendant's motion for elimination or downward modification of his alimony obligation, and for attorneys' fees, and granted plaintiff's cross motion for attorneys' fees, unanimously affirmed, without costs.

Defendant fails to make the requisite particularized showing of his present financial circumstances (see 194 A.D.2d 401, 401-402, 598 N.Y.S.2d 513 [1993], mod. on other grounds 203 A.D.2d 114, 610 N.Y.S.2d 47 [1994] ).   For example, while defendant, a stockbroker, claims that his substantial recent sales of stock owned by his present wife resulted in losses, he fails to submit documentary evidence of his wife's ownership or show the origin of the money used to purchase the stock.   As another example, defendant adduces no evidence of the value of the Southampton house that he transferred to his present wife, and, while claiming that it was virtually destroyed by a pipe burst, there is no proof of an insurance claim or estimate of the cost of repairs.   The award of attorneys' fees was a proper exercise of discretion under Domestic Relations Law § 237(b) (see DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 [1987] ).