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IN RE: Sean WILSON, respondent, v. Caroline KILKENNY, appellant.

Decided: January 08, 2014

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ. Graff Law, LLC, Kingston, N.Y. (Heather K. Sheehan of counsel), for appellant. Stephens, Baroni, Reilly & Lewis, LLP, White Plains, N.Y. (Stephen R. Lewis of counsel), for respondent.

In a custody and visitation proceeding pursuant to Family Court Act article 6, the mother appeals from a money judgment of the Family Court, Westchester County (Greenwald, J.), entered March 22, 2013, which, upon an order of the same court entered August 27, 2012, which, without a hearing, upon remittal from this Court (see Matter of Wilson v. Kilkenny, 73 AD3d 796), awarded the father an attorney's fee, is in favor of the father and against her in the principal sum of $37,649.97.

ORDERED that on the Court's own motion, the notice of appeal from the order is deemed a premature notice of appeal from the money judgment (see CPLR 5520 [c] ); and it is further,

ORDERED that the money judgment is modified, on the facts and in the exercise of discretion, by reducing the amount awarded to the father as an attorney's fee from the principal sum of $37,649.97 to the principal sum of $12,550; as so modified, the money judgment is affirmed, without costs or disbursements, and the order is modified accordingly.

In a prior decision and order dated May 4, 2010, this Court concluded that the father was entitled to an award of an attorney's fee, pursuant to the parties' stipulation of settlement, which required the mother, as the party breaching the stipulation between the parties, to indemnify the father for “all reasonable costs and expenses including an award of an attorney's fee incurred” by her breach (Matter of Wilson v. Kilkenny, 73 AD3d 796, 797). Upon remittal, the Family Court improvidently exercised its discretion in awarding the father an attorney's fee in the principal sum of $37,649.97. Those fees were incurred not only as a result of the mother's breach of the stipulation, but also in opposing the mother's cross petition to relocate with the parties' child, which application would have been necessary in order for the mother to relocate with the child whether or not she violated the stipulation by relocating with the child prior to seeking court approval. Further, those fees were incurred by the father in pursuing his own petition for custody of the child. We conclude that an award in the principal sum of $12,550 would sufficiently indemnify the father for his attorney's fees incurred by virtue of the mother's breach of the stipulation.

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