Stang v. Stang

In a matrimonial action in which the parties were divorced by a judgment dated January 15, 1982, the plaintiff husband appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered November 8, 1989, which denied his motion to terminate his maintenance and child support obligations and granted the defendant wife’s cross motion for arrears in maintenance and child support, and awarded her counsel fees, without a hearing, in the amount of $3,000.

Ordered that the ordér is modified by deleting the provision awarding counsel fees in the amount of $3,000; as so modified, the order is affirmed, with costs to the defendant wife, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and new determination as to the amount of counsel fees to be awarded to the wife’s attorney pursuant to Domestic Relations Law § 237 (c).

We agree with the Supreme Court’s determination that the wife was entitled to an award of maintenance and support arrears pursuant to the terms of the parties’ separation agreement which was incorporated, but not merged, into the judgment of divorce. We also conclude that the court was required to award a counsel fee to the wife’s attorney pursuant to Domestic Relations Law § 237 (c). However, an evidentiary hearing must be held so that the extent and value of counsel’s services can be scrutinized in an adversarial context by the trial court and intelligently reviewed by this one (see, Gutin v Gutin, 155 AD2d 586, 587). We note that a showing of financial need is not a prerequisite for an award of counsel fees pursuant to Domestic Relations Law § 237 (c), and contrary to the husband’s contention, the wife was not required to submit a current statement of net worth (see, 22 NYCRR 202.16 [g]) on such an application.

We have examined the husband’s remaining contentions and find them to be without merit. We also find that sanctions against the husband are not warranted herein. Brown, J. P., Sullivan, Rosenblatt and Ritter, JJ., concur.