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

Deborah GOODMAN, Appellant, v. Andreas LEMPA, Respondent.


Decided: January 23, 2019

MARK C. DILLON, J.P., ROBERT J. MILLER, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ. Deborah Goodman, Pearl River, NY, appellant pro se. Ellen B. Holtzman, Nanuet, N.Y. (Meryl Neuren of counsel), for respondent.


ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements;  and it is further,

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof denying that branch of the plaintiff's motion which was for an award of attorneys' fees, and substituting therefor a provision granting that branch of the motion to the extent of awarding her $50,000 in attorneys' fees;  as so modified, the order is affirmed, without costs or disbursements.

The parties were married in June 1999, and have two children together.  During the marriage, the defendant was an executive at a large multinational company, while the plaintiff was the primary caregiver for the children and a homemaker.  In May 2010, the plaintiff commenced this action against the defendant for a divorce and ancillary relief.

By judgment of divorce dated March 24, 2017, the Supreme Court, after a nonjury trial, inter alia, awarded each party 50% of the marital property.  In an order dated April 7, 2017, the court, among other things, denied that branch of the plaintiff's motion which was for an award of attorneys' fees.  The plaintiff appeals, pro se, from stated portions of the judgment of divorce relating to equitable distribution, and from so much of the order as denied that branch of her motion which was for an award of attorneys' fees.

“The trial court ‘is vested with broad discretion in making an equitable distribution of marital property’ ․ and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed” (Saleh v. Saleh, 40 A.D.3d 617, 617–618, 836 N.Y.S.2d 201, quoting Bossard v. Bossard, 199 A.D.2d 971, 971, 606 N.Y.S.2d 474).  “Moreover, where, as here, the determination as to equitable distribution has been made after a nonjury trial, the trial court's assessment of the credibility of witnesses is afforded great weight on appeal” (Linenschmidt v. Linenschmidt, 163 A.D.3d 949, 950, 82 N.Y.S.3d 474;  see Maddaloni v. Maddaloni, 142 A.D.3d 646, 651, 36 N.Y.S.3d 695).

Contrary to the plaintiff's contention, under the circumstances of this case, an award of 50% of the parties' marital property constitutes an equitable distribution of that property (see Domestic Relations Law § 236[B][1][d][3];  [5][c];  Diwan v. Diwan, 135 A.D.3d 807, 24 N.Y.S.3d 352;  Kessler v. Kessler, 118 A.D.3d 946, 991 N.Y.S.2d 43).  We agree with the Supreme Court's determination that the plaintiff failed to prove, by the preponderance of the evidence, that the defendant engaged in wasteful dissipation of the marital assets (see Heymann v. Heymann, 102 A.D.3d 832, 834, 958 N.Y.S.2d 448;  Aloi v. Simoni, 82 A.D.3d 683, 685, 918 N.Y.S.2d 506).

The plaintiff's contentions as to certain other credits which the Supreme Court allegedly failed to award her are unpreserved for appellate review, as she did not request this relief before the trial court (see Abrams v. Abrams, 57 A.D.3d 809, 810–811, 870 N.Y.S.2d 401;  Hildreth–Henry v. Henry, 27 A.D.3d 419, 420, 811 N.Y.S.2d 110).

The Supreme Court improvidently exercised its discretion by declining to award attorneys' fees to the plaintiff (see Domestic Relations Law § 237).  “[I]n exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case” (DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168).  The plaintiff's pro se motion, inter alia, for an award of attorneys' fees, while not in strict compliance with the requirements of Domestic Relations Law § 237(a), contained sufficient documentation to substantiate an award of attorneys' fees.  In consideration of all the relevant factors, including the financial circumstances of the parties, an attorneys' fee award of $50,000, less than half of the fees sought, is appropriate (see Ostrower v. Ostrower, 148 A.D.3d 819, 820, 49 N.Y.S.3d 155;  Baron v. Baron, 71 A.D.3d 807, 811, 897 N.Y.S.2d 456;  Grumet v. Grumet, 37 A.D.3d 534, 536–537, 829 N.Y.S.2d 682).


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