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GRANT v. GRANT
Case Summary: Michael Grant v. Dana Grant (App. Div., 2d Dept., Mar. 2, 2010)
Factual and Procedural Background
The parties were divorced by judgment entered July 15, 2005. The defendant former wife applied for an award of an attorney's fee; a judicial hearing officer (dated April 9, 2008) after a hearing recommended denial of that application. The plaintiff former husband moved to confirm that portion of the hearing officer's report; the Supreme Court, Nassau County, by order dated February 2, 2009, granted that branch of the plaintiff's motion. The defendant appealed from that order and from so much of an amended judgment entered September 1, 2009 as, upon the order, failed to award her an attorney's fee. The appeal from the intermediate order was dismissed because the right of direct appeal terminated with entry of the amended judgment; the issues were reviewed on the appeal from the amended judgment. A separate motion by the respondent to dismiss the appeal from the order was held in abeyance by this Court and later denied as academic.
Legal Issues Presented
- Whether the denial of the defendant's application for an award of an attorney's fee (as recommended by the judicial hearing officer) should be confirmed or reversed.
- Whether the amended judgment, insofar as it failed to award the defendant an attorney's fee, should be modified on appeal.
- Whether the appeal from the intermediate order remained a proper direct appeal after entry of the amended judgment.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Matter of Aho, 39 NY2d 241, 248 | That the right of direct appeal from an intermediate order terminates with the entry of an amended judgment. | Applied to dismiss the appeal from the intermediate order as the right of direct appeal terminated with entry of the amended judgment; issues were reviewed on appeal from the amended judgment. |
| Gruppuso v Caridi, 66 AD3d 838, 839 | That an award of an attorney's fee pursuant to Domestic Relations Law § 237(a) is within the sound discretion of the trial court. | Quoted to state the controlling discretionary standard for attorney's fee awards; used to support affirming denial of fee application. |
| Morrissey v Morrissey, 259 AD2d 472, 473 | Supporting authority for the principle that attorney's fee awards under DRL § 237(a) are controlled by equities and circumstances of each case. | Quoted (via Gruppuso) as part of the controlling discretionary standard applied by the court. |
| Prichep v Prichep, 52 AD3d 61, 64-65 | Supporting precedent cited for the discretionary nature of attorney's fee awards. | Cited as additional authority for the discretionary standard referenced by the court. |
| Timpone v Timpone, 28 AD3d 646, 646 | Supporting precedent cited for the discretionary nature of attorney's fee awards. | Cited as additional authority for the discretionary standard referenced by the court. |
| Dimino v Dimino, 39 AD3d 799, 799-800 | Authority concerning confirmation of portions of a judicial hearing officer's report (in context of CPLR 4403 and 22 NYCRR 202.44). | Used to support the court's conclusion that the judicial hearing officer providently exercised discretion and that the Supreme Court properly confirmed that portion of the report. |
Court's Reasoning and Analysis
The Court first concluded that the appeal from the intermediate order must be dismissed because the right of direct appeal ended with entry of the amended judgment, citing Matter of Aho, and proceeded to review the issues on the appeal from the amended judgment pursuant to CPLR 5501(a)(1). The Court reiterated the governing principle that attorney's fee awards under Domestic Relations Law § 237(a) are within the trial court's sound discretion and controlled by the equities and circumstances of each case (citing Gruppuso v Caridi and related authorities). Applying that standard, the Court found that the judicial hearing officer providently exercised his discretion in recommending denial of the defendant's attorney's fee application, and that the Supreme Court properly granted the plaintiff's motion to confirm that portion of the judicial hearing officer's report (citing CPLR 4403, 22 NYCRR 202.44, and Dimino v Dimino). The Court stated that the defendant's remaining contentions are without merit. Separately, a respondent motion to dismiss the appeal from the order was held in abeyance by this Court and later denied as academic in light of the Court's determination of the appeals.
Holding and Implications
The appeal from the intermediate order is dismissed, and the amended judgment is affirmed insofar as appealed from.
Consequences: The defendant's application for an attorney's fee remains denied; one bill of costs is awarded to the plaintiff. The opinion does not announce a new rule of law beyond applying established discretionary standards for attorney's fee awards and procedural rules governing appeals.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the amended judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the amended judgment in the action ( see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the amended judgment ( see CPLR 5501 [a] [1]).
"An award of an attorney's fee pursuant to Domestic Relations Law § 237 (a) is a matter within the sound discretion of the trial court, and the issue `is controlled by the equities and circumstances of each particular case'" ( Gruppuso v Caridi, 66 AD3d 838, 839, quoting Morrissey v Morrissey, 259 AD2d 472, 473; see Prichep v Prichep, 52 AD3d 61, 64-65; Timpone v Timpone, 28 AD3d 646, 646).
In this case, the judicial hearing officer providently exercised his discretion in recommending the denial of the defendant's application for an award of an attorney's fee, and the Supreme Court properly granted that branch of the plaintiffs motion which was to confirm that portion of the judicial hearing officer's report ( see CPLR 4403; 22 NYCRR 202.44; Dimino v Dimino, 39 AD3d 799, 799-800).
The defendant's remaining contentions are without merit.
Motion by the respondent on appeals from an order of the Supreme Court, Nassau County, dated February 2, 2009, and an amended judgment of the same court entered September 1, 2009, to dismiss the appeal from the order on the ground that the right of direct appeal therefrom terminated with the entry of the amended judgment. By decision and order on motion of this Court dated November 4, 2009, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the submission of the appeals, it is
Ordered that the motion is denied as academic in light of our determination of the appeals.
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