The parties were divorced by a judgment dated December 24, 2007. A stipulation of settlement dated May 1, 2007, was incorporated, but not merged, into the judgment of divorce. The stipulation of settlement was a comprehensive agreement, fully resolving issues of equitable distribution which could have been raised by the parties or could be raised in the future.
In March 2009 the defendant former husband moved by order to show cause for various relief. After a conference during which certain issues were resolved, the motion was inadvertently marked as disposed. The defendant submitted another motion and the plaintiff former wife cross-moved for an award of counsel fees expended in defense of the motions. In an order dated September 15, 2010, the Supreme Court considered all of
At the hearing on the remaining issues, the Supreme Court denied the remainder of the defendant’s motion from the bench. The parties submitted the issue of counsel fees on affidavits. In an order dated February 10, 2011, the Supreme Court granted the plaintiffs cross motion to the extent of awarding her 75% of the counsel fees sought. The defendant also appeals from that order. After he failed to pay the counsel fees as directed by the Supreme Court, an amended money judgment was entered against the defendant for the principal amount of the counsel fee award.
The Supreme Court properly denied, without a hearing, those branches of the defendant’s motion which were to recover for sums expended on repairs to the former marital residence and in connection with the plaintiffs failure to permanently relocate to Florida. A stipulation of settlement that is incorporated but not merged into a judgment of divorce is a separate and independent contract, and is enforceable as such (see Kleila v Kleila, 50 NY2d 277, 283 [1980]; Matter of Burke v Burke, 81 AD3d 642, 643 [2011]; Shanon v Patterson, 38 AD3d 519 [2007]). Courts cannot not rewrite the unambiguous terms of a marital stipulation of settlement to distribute items which were not provided for in the stipulation (see Pulaski v Pulaski, 22 AD3d 820, 821 [2005]; Pellino v Pellino, 308 AD2d 522, 523 [2003]; Cole-Hatchard v Cole-Hatchard, 294 AD2d 529, 530 [2002]; Cohen-Davidson v Davidson, 291 AD2d 474, 475 [2002]; Cappello v Cappello, 286 AD2d 360, 361 [2001]). There were no provisions in the stipulation of settlement entitling the defendant to the requested relief. The repairs which he undertook were not contemplated in the stipulation of settlement, and the plaintiffs permanent relocation was not required.
The Supreme Court providently exercised its discretion in granting the plaintiff’s cross motion for an award of counsel fees to the extent of awarding her 75% of the fees sought. “The
Here, the Supreme Court properly considered the relevant factors in determining that an award of 75% of the fees sought was appropriate (see Matter of Grald v Grald, 33 AD3d 922, 923 [2006]; Shen v Shen, 21 AD3d 1078, 1080 [2005]; cf. Matter of Olesh v Auerbach, 227 AD2d 406, 406-407 [1996]). The submissions of the plaintiff and her counsel were sufficient {see Domestic Relations Law § 237 [b]), and the failure to submit a retainer agreement was not fatal to the cross motion (cf. 22 NYCRR 202.16 [c] [1]).
The defendant’s remaining contentions are without merit. Rivera, J.E, Dickerson, Eng and Roman, JJ., concur.