SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

243 

CA 11-02094 

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ. 

 

FRANK M. PIACENTE, PLAINTIFF-APPELLANT, 

 

V MEMORANDUM AND ORDER

JANICE J. PIACENTE, DEFENDANT-RESPONDENT. 

 

DONALD J. MURPHY, UTICA, FOR PLAINTIFF-APPELLANT. 

WILLARD R. PRATT, III, SYLVAN BEACH, FOR DEFENDANT-RESPONDENT.

 

Appeal from an order of the Supreme Court, Herkimer County

(Michael E. Daley, J.), entered June 6, 2011 in a divorce action. The

order directed plaintiff to pay to defendant the sum of $96,564.37,

plus interest, costs and attorneys’ fees. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by vacating that part directing

plaintiff to pay interest prior to the entry of the order and as

modified the order is affirmed without costs, and the matter is

remitted to Supreme Court, Herkimer County, for a determination

whether plaintiff’s failure to transfer the remaining amount owed to

defendant pursuant to the judgment of divorce was willful. 

Memorandum: Plaintiff appeals from an order granting, inter

alia, that part of defendant’s motion seeking enforcement of the

judgment of divorce insofar as it distributed certain assets. 

Contrary to the contention of plaintiff, the clear and unambiguous

language of the parties’ stipulation, which was incorporated but not

merged into the judgment of divorce, provided that plaintiff would pay

to defendant a total amount of $130,000 (see generally Lape v Lape, 66

AD3d 1405, 1406). Thus, we conclude that Supreme Court properly

determined that plaintiff was required to transfer to defendant from

his IRA account the amount of $96,564.37, i.e., the balance owed to

her after the transfer of a joint investment account.

We reject plaintiff’s further contention that the court erred in

awarding defendant attorneys’ fees without first conducting a hearing

to determine the reasonableness of the fees. Plaintiff did not

request such a hearing, and thus he waived that right (see Bogannam v

Bogannam, 60 AD3d 985, 987). In any event, we conclude that the court

properly awarded fees to defendant, “the less monied spouse,” in this

enforcement proceeding, inasmuch as plaintiff failed to rebut the

statutory presumption that defendant is entitled to attorneys’ fees

(Domestic Relations Law § 237 [b]). 
-2- 243 

CA 11-02094 

Finally, plaintiff contends that the court erred in ordering him

to pay interest on the remaining amount owed to defendant from the

date he transferred the joint account to defendant to the date of the

hearing on the motion. We are unable to determine on this record

whether the court found that plaintiff’s failure to transfer the funds

from the IRA account was willful (see Domestic Relations Law § 244;

cf. Goldkranz v Goldkranz, 82 AD3d 699, 700). We therefore modify the

order by vacating that part awarding defendant interest prior to the

entry of the order, and we remit the matter to Supreme Court for a

determination whether plaintiff’s failure to transfer those funds was

willful.

Entered: March 16, 2012 Frances E. Cafarell

Clerk of the Court