McMAHAN v. McMAHAN

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

David Bruce McMAHAN, appellant-respondent, v. Elena McMAHAN, respondent-appellant.

Decided: October 27, 2009

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, RANDALL T. ENG, and JOHN M. LEVENTHAL, JJ. The Wallack Firm, P.C., New York, N.Y. (Robert M. Wallack of counsel), for appellant-respondent. Law Office of Yonatan S. Levoritz, P.C., Brooklyn, N.Y., and Dobrish Zeif Gross LLP, New York, N.Y. (Robert Z. Dobrish of counsel), for respondent-appellant.

In an action for a divorce and ancillary relief, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Lubell, J.), entered March 6, 2008, as granted that branch of the defendant's motion which was for an award of interim counsel fees in the sum of $100,000, and denied that branch of his motion which was to enforce a provision of the parties' stipulation of settlement which required the defendant to pay 100% of the expenses of employing a mutually selected childcare provider, and the defendant cross-appeals from so much of the same order as granted that branch of her motion which was for an award of interim counsel fees only to the extent of awarding her the sum of $100,000.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

 The plaintiff's contention that the parties' stipulation of settlement required the defendant to employ a mutually selected childcare provider could have been raised on his prior appeal from an order dated November 30, 2007, which was dismissed for failure to prosecute.   Nevertheless, we exercise our discretion to determine the issue on the instant appeal (see Faricelli v. TSS Seedman's, 94 N.Y.2d 772, 774, 698 N.Y.S.2d 588, 720 N.E.2d 864;  Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 697 N.Y.S.2d 866, 720 N.E.2d 86).   On the merits, we reject the plaintiff's contention.   A plain reading of the provision at issue reflects that the intention was to require the defendant to pay 100% of the expenses of a childcare provider if she employed one, and not, as the plaintiff argues, to actually require her to employ such a childcare provider.

 Furthermore, since the provision of the stipulation of settlement providing that each party was responsible for his or her own counsel fees was drafted in the past tense, referring to fees for “services rendered,” we agree with the defendant that such provision did not bar her request for an award of interim counsel fees for litigation between the parties which post-dated the agreement.   Finally, the Supreme Court did not improvidently grant the defendant's request for an award of interim counsel fees in light of the undisputed significant disparity in the parties' financial circumstances, and we reject the defendant's contention that the amount awarded to her was inadequate (see Domestic Relations Law § 237[a];  Prichep v. Prichep, 52 A.D.3d 61, 858 N.Y.S.2d 667).

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