DELBELLO, LYNN M. v. DELBELLO, THOMAS M. , 954 N.Y.S.2d 319 ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1138
CA 11-01346
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.
LYNN M. DELBELLO, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
THOMAS M. DELBELLO, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
THOMAS M. DELBELLO, DEFENDANT-APPELLANT PRO SE.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (LAURA J. EMERSON OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (John F.
O’Donnell, J.), dated January 21, 2010 in a divorce action. The order
directed defendant to pay plaintiff’s counsel fees of $3,982.73.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: These consolidated appeals arise from a matrimonial
action. In appeal No. 1, defendant contends that Supreme Court erred
in awarding counsel fees to plaintiff without conducting a hearing.
“That contention is not preserved for our review inasmuch as defendant
failed to request a hearing with respect to the ability of plaintiff
to pay her own counsel fees or the extent and value of the legal
services rendered to her” (Sharlow v Sharlow, 77 AD3d 1430, 1432).
In appeal No. 2, defendant contends that the court erred by
increasing the weekly award of maintenance from $75, the amount
recommended by the Referee, to $200. We reject defendant’s contention
that the court erred in imputing income to him, inasmuch as the court
in fact declined to impute income to him, and the record fails to
support defendant’s further contention that the court erred in failing
to consider his living expenses when it increased the amount of
maintenance recommended by the Referee. We agree with defendant,
however, that the court failed to “set forth the factors it considered
and the reasons for its decision” to increase the amount of
maintenance (Domestic Relations Law § 236 [B] [6] [b]). In view of
the court’s rejection of the Referee’s recommendation with respect to
the amount of maintenance, the court’s statement that it was making
the increased award of maintenance “[f]or the same reasons outlined by
the [R]eferee” is not sufficient to satisfy the statutory requirement
(cf. Boardman v Boardman, 300 AD2d 1110, 1110; McCanna v McCanna, 274
AD2d 949, 949). We therefore modify the judgment in appeal No. 2
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CA 11-01346
accordingly, and we remit the matter to Supreme Court for a new
determination of the amount of maintenance, following a hearing if
necessary.
With respect to appeal No. 3, we conclude that the court erred in
disbursing the funds remaining in the escrow account of plaintiff’s
attorney to plaintiff and plaintiff’s attorney. The judgment in
appeal No. 2 provided that the funds remaining in that account were to
be divided equally between the parties. Further, in view of
defendant’s objections, the court erred in adopting the disbursement
proposed by plaintiff’s attorney without conducting a hearing (see
generally Pordum v Pordum [appeal No. 2], 248 AD2d 953, 954). We
therefore modify the order in appeal No. 3 accordingly, and we remit
the matter to Supreme Court for a hearing concerning the parties’
respective shares of the funds in the escrow account.
Entered: November 9, 2012 Frances E. Cafarell
Clerk of the Court