Kelly v. Kelly

In an action for divorce and ancillary relief, the defendant appeals, (1) as limited by his notice of appeal and brief, from so much of a judgment of the Supreme Court, Westchester County (Burrows, J.), dated August 6, 1993, as, after a nonjury trial, distributed the marital assets, awarded the plaintiff permanent maintenance of $1,000 per month or 25% of his adjusted gross income, whichever is greater, and (2) awarded the plaintiff counsel fees of $54,684.76.

Ordered that the judgment is modified, on the law, by deleting the provision thereof which awarded the plaintiff counsel fees of $54,684.76; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing on the plaintiff’s application for counsel fees.

*626In view of the length of the parties’ marriage, the plaintiffs noneconomic contributions to the marriage and the defendant’s earning capacity, we conclude that the trial court’s distribution of the marital assets was equitable (see, e.g., Meikle v Perret-Meikle, 176 AD2d 257; Marcus v Marcus, 135 AD2d 216).

The defendant contends that the trial court improperly estimated the value of the family’s business, which he was awarded in the judgment of divorce. The record demonstrates that any difficulty in reaching a fair valuation of the family’s business was the result of the defendant’s failure to provide adequate documentation upon which to base a valuation. The method of valuation used by the trial court was appropriate under the circumstances of this case, and its determination is supported by the record (see, e.g., Bofford v Bofford, 117 AD2d 643; Griffin v Griffin, 115 AD2d 587; Matter of Ward v Ward, 94 AD2d 908).

The trial court’s award of permanent maintenance in the amount of $1,000 per month or 25% of the defendant’s adjusted gross income, whichever is greater, was not an improvident exercise of discretion under the circumstances of this case (see, Hartog v Hartog, 85 NY2d 36; Semans v Semans, 199 AD2d 790; see generally, Sperling v Sperling, 165 AD2d 338, 341-342).

Considering the relative financial circumstances of the parties and the defendant’s tactics, which unnecessarily prolonged this litigation, it was appropriate for the trial court to require the defendant to pay the plaintiffs counsel fees. The trial court erred, however, by awarding the plaintiff counsel fees in an amount in excess of $54,000 without first holding a hearing. There is no indication in the record that the defendant stipulated that an award of counsel fees could be made solely on the basis of the affirmations of counsel. In the absence of such a stipulation, an evidentiary hearing is required so that the court may test the claims of the plaintiffs attorney regarding the extent and value of his services (see, e.g., Lenczycki v Alexander, 209 AD2d 480; Silverman v Silverman, 193 AD2d 595; Gutin v Gutin, 155 AD2d 586; Price v Price, 115 AD2d 530). Accordingly, the matter is remitted to the Supreme Court, Westchester County, for a hearing on the plaintiffs application for counsel fees.

We have considered the defendant’s remaining contentions and find them to be without merit. O’Brien, Ritter and Krausman, JJ., concur.