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Mueller v. Mueller

Supreme Court of New York, Second Department

January 15, 2014

Christoph Mueller, respondent-appellant,
v.
Barbara Mueller, appellant-respondent. Index No. 30676/10

Del Vecchio & Recine, LLP, Garden City, N.Y. (Jaclene Agazarian and Phyllis Recine of counsel), for appellant-respondent.

Kenneth J. Weinstein, P.C., Garden City, N.Y. (Michael J. Langer of counsel), for respondent-appellant.

PETER B. SKELOS, J.P., RUTH C. BALKIN, PLUMMER E. LOTT, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment entered August 23, 2011, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Kent, J.), dated January 31, 2012, as granted her application for an award of an attorney's fee only to the extent of awarding her $10, 000, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as awarded the defendant an attorney's fee in the sum of $10, 000 and denied his application for an award of an attorney's fee.

ORDERED that on the Court's own motion, the notice of appeal and notice of cross appeal are treated as applications for leave to appeal and cross-appeal respectively, and leave to appeal and cross-appeal is granted (see CPLR 5701[c]); and it is further, ORDERED that the order is affirmed, without costs or disbursements.

An award of an attorney's fee pursuant to Domestic Relations Law § 237 lies within the sound discretion of the trial court (see Carr-Harris v Carr-Harris, 98 A.D.3d 548, 552). In exercising that discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions (see Guzzo v Guzzo, 110 A.D.3d 765; Matter of Baribault v Sauvola, 101 A.D.3d 865, 866; Matter of O'Neil v O'Neil, 193 A.D.2d 16, 20). The court may also take into account whether one party has delayed the proceedings or engaged in unnecessary litigation (see Guzzo v Guzzo, 110 A.D.3d 765; Khan v Ahmed, 98 A.D.3d 471, 473). Here, considering the significant economic disparity between the parties, the dilatory tactics employed, the equities, and the other circumstances of the case, the trial court did not improvidently exercise its discretion in denying an attorney's fee to the plaintiff and in awarding an attorney's fee to the defendant in the sum of $10, 000 (see Chesner v Chesner, 95 A.D.3d 1252, 1253).

The parties' remaining contentions are without merit.

SKELOS, J.P., BALKIN, LOTT and HINDS-RADIX, JJ., concur.


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