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Lee v. Lee

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 2, 2008

PAMELA B. LEE, RESPONDENT,
v.
KENNETH LEE, APPELLANT.

In a matrimonial action in which the parties were divorced by judgment dated December 30, 2002, the defendant former husband appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Orange County (Alessandro, J.), dated July 10, 2007, as granted that branch of the motion of the plaintiff former wife which was to compel him to pay her the principal sum of $78,839.09, in compliance with the judgment of divorce, (2) from a decision of the same court dated September 28, 2007, and (3) from a money judgment of the same court dated September 28, 2007, which, upon the decision, awarded the plaintiff former wife counsel fees in the sum of $62,050.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

DAVID S. RITTER, J.P., ANITA R. FLORIO, HOWARD MILLER and MARK C. DILLON, JJ.

(Index No. 7650/99)

DECISION & ORDER

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that the money judgment is modified, on law, the facts, and in the exercise of discretion, by deleting from the decretal paragraph thereof the sum of $62,050 and substituting therefor the sum of $37,297.50; as so modified, the money judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

Contrary to the defendant's contention, the Supreme Court did not err in failing to consider the tax consequences associated with the sale of certain real property pursuant to the judgment of divorce. The defendant did not introduce evidence of these tax consequences until after he had been held in contempt for failing to pay the plaintiff her share of these proceeds in accordance with the judgment (see Vicinanzo v Vicinanzo, 193 AD2d 962, 968; Simmons v Simmons, 159 AD2d 775, 777).

Domestic Relations Law § 238 authorizes a court, in its discretion, to award counsel fees in an enforcement proceeding to compel the payment of money (see Domestic Relations Law § 238; Matwijczuk v Matwijczuk, 290 AD2d 854, 856). Under the circumstances presented, it was an improvident exercise of discretion to award counsel fees in the sum of $62,050 (see Reid v Reid, 166 AD2d 811, 813; see also Dankner v Steefel, 47 AD3d 867, 868).

The defendant's remaining contentions are without merit.

RITTER, J.P., FLORIO, MILLER and DILLON, JJ., concur.

20081202

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