SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

239 

CA 14-01721 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.

 

 

J. RICHARD WILSON, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

REBECCA P. WILSON, DEFENDANT-APPELLANT. 

 

M W MOODY LLC, NEW YORK CITY (MARK WARREN MOODY OF COUNSEL), FOR

DEFENDANT-APPELLANT.

KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN LLP, ROCHESTER

(MICHAEL G. PAUL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Monroe County (John M.

Owens, J.), entered April 3, 2014. The order, insofar as appealed

from, denied defendant’s request that plaintiff be compelled to pay

defendant for, inter alia, her moving and storage costs and counsel

fees. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs, judgment is ordered imposing a

sanction on defendant, and the matter is remitted to Supreme Court,

Monroe County, to determine the amount of the sanction in accordance

with the following memorandum: In this postjudgment matrimonial

proceeding, defendant appeals from an order that, insofar as appealed

from, denied her request for counsel and expert fees, as well as

moving and storage costs. Upon entry of the underlying judgment of

divorce, defendant received, inter alia, maintenance, plaintiff’s

401(k) account, and the marital residence. The parties agreed that

they would attempt to resolve any disputes over undistributed property

before seeking judicial intervention, and plaintiff commenced this

proceeding only when they were unable to do so. The parties

stipulated that Supreme Court would determine on the parties’ written

submissions the contested issue regarding distribution of certain

personal property. The court resolved the dispute by distributing the

property at issue and denying each parties’ request for ancillary

relief.

We reject defendant’s contention that the court abused its

discretion in denying her request for counsel and expert fees because

she is the less monied spouse. Although “[a]n award of [counsel] and

expert fees pursuant to Domestic Relations Law § 237 (a) will

generally be warranted where there is a significant disparity in the

financial circumstances of the parties” (Vitale v Vitale, 112 AD3d

614, 615; see Leonard v Leonard, 109 AD3d 126, 129-130), the ultimate
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CA 14-01721 

decision whether to award such fees “lies, in the first instance, in

the discretion of the trial court and then in the Appellate Division

whose discretionary authority is as broad as [that of] the trial

court[]” (O’Brien v O’Brien, 66 NY2d 576, 590). “[I]n exercising its

discretionary power to award counsel [and expert] fees, a court should

review the financial circumstances of both parties together with all

the other circumstances of the case, which may include the relative

merit of the parties’ positions” (DeCabrera v Cabrera-Rosete, 70 NY2d

879, 881; see Gilliam v Gilliam, 109 AD3d 871, 873; Ciampa v Ciampa,

47 AD3d 745, 748). “A court may consider whether either party has

engaged in conduct or taken positions resulting in a delay of the

proceedings or unnecessary litigation” (Vitale, 112 AD3d at 615). 

Here, we conclude that the court did not abuse its discretion in

declining to award counsel and expert fees to defendant inasmuch as

this postjudgment proceeding was the result of her obstructionist

conduct (see Johnson v Chapin, 12 NY3d 461, 467, rearg denied 13 NY3d

888; Vitale, 112 AD3d at 615; Blake v Blake [appeal No. 1], 83 AD3d

1509, 1509). In addition, the relative merit of plaintiff’s position

in the underlying litigation weighs in favor of denying defendant’s

application for counsel and expert fees (see generally DeCabrera, 70

NY2d at 881-882; Chesner v Chesner, 95 AD3d 1252, 1253).

Similarly, we conclude that the court did not abuse its

discretion in denying defendant’s request for moving and storage costs

where, as here, the record establishes that the costs incurred by

defendant were entirely avoidable, and were the result of her own

obstructionist tactics (see generally Blake, 83 AD3d at 1509).

Finally, we agree with plaintiff that it is appropriate to

sanction defendant in this case because the appendix provided by

defendant, as the appellant, failed to include “such parts of the

record on appeal as are necessary to consider the questions involved,

including those parts the appellant reasonably assumes will be relied

upon by the respondent” (CPLR 5528 [a] [5]; see 22 NYCRR 1000.4 [d]

[2] [i]; Mure v Mure, 92 AD3d 653, 653; Wittig v Wittig, 258 AD2d 883,

884-885; cf. Grossman v Composto-Longhi, 96 AD3d 1000, 1001). Because

of her failure to comply with this requirement, we sanction defendant

by imposing costs equal to the amount incurred by plaintiff in the

preparation and submission of his own appendix to defend this appeal

(see CPLR 5528 [e]; Wittig, 258 AD2d at 885; see generally Mure, 92

AD3d at 653), and we remit the matter to Supreme Court to determine

that amount, excluding attorneys’ fees (see Wittig, 258 AD2d at 885).

Entered: May 1, 2015 Frances E. Cafarell

Clerk of the Court