DIVORCE - AWARDING COUNSEL FEES FOR VIOLATING SETTLEMENT

Boukas v Boukas, 2018 NY Slip Op 05273, Decided on July 18, 2018, Appellate Division, Second Department:

"The parties were married in 1991 and have two children together. In 2011, the plaintiff commenced an action for a divorce and ancillary relief. The parties executed a stipulation of settlement dated September 10, 2013, which was incorporated but not merged into a judgment of divorce entered March 14, 2014, and included a vacation and parental access schedule with regard to the parties' children. The defendant moved to find the plaintiff in contempt of the parties' stipulation of settlement based on alleged violations of this schedule. The plaintiff cross-moved to hold the defendant in contempt, alleging noncompliance by the defendant with certain terms of the stipulation of settlement. The parties settled all issues with the exception of counsel fees, which issue was referred to the court for determination. In the order appealed from the Supreme Court, inter alia, denied that branch of the defendant's motion which was for an award of counsel fees.

In determining whether an award of counsel fees is appropriate, the court must [*2]consider the equities and circumstances of each particular case, the relative merit of the parties' contentions and their respective financial positions (see Domestic Relations Law § 238; Mons Pinto v Pinto, 151 AD3d 715; Ackerman v Midura, 145 AD3d 647; Pelgrim v Pelgrim, 127 AD3d 710, 714; Hackett v Hackett, 115 AD3d 800, 803; Pathak v Shukla, 109 AD3d 891, 892; Quinn v Quinn, 73 AD3d 887; Lauria v Usak-Lauria, 65 AD3d 1017).

Here, the defendant was entitled to reasonable counsel fees in connection with this matter, as the plaintiff's conduct in violation of the stipulation of settlement caused these fees to be incurred (see Pathak v Shukla, 109 AD3d 891, 892; Quinn v Quinn, 73 AD3d 887; Lauria v Usak-Lauria, 65 AD3d 1017). An award of counsel fees in the sum of $15,000 is supported by the record."