        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

806
CA 11-00835
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


KATHLEEN E. ANDRESS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TERRANCE A. ANDRESS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


LABIN & BUFFOMANTE, WILLIAMSVILLE (CLAYTON J. LENHARDT OF COUNSEL),
FOR DEFENDANT-APPELLANT.

ZARCONE ASSOCIATES, PLLC, GETZVILLE (KELLY V. ZARCONE OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Tracey A.
Bannister, J.), entered August 30, 2010. The order, inter alia,
directed defendant to pay plaintiff’s counsel fees.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of plaintiff’s
motion seeking counsel fees and vacating the award of counsel fees and
as modified the order is affirmed without costs.

     Memorandum: In appeal No. 1, defendant appeals from an order in
this post-matrimonial proceeding that, inter alia, directed him to pay
plaintiff’s counsel fees. Initially, we note that defendant’s
contentions regarding the amounts of maintenance and interest he was
required to repay to plaintiff are not properly before this Court
because Supreme Court decided those issues in a prior order from which
defendant has not taken an appeal nor, in any event, is that order
included in the record on appeal (see CPLR 5501 [a]; Matter of
Wahlstrom v Carlson, 55 AD3d 1399, 1400; Vigliotti v State of New
York, 24 AD3d 1217, 1218, lv denied 6 NY3d 819, 854). We agree with
defendant, however, that the court abused its discretion in granting
that part of plaintiff’s motion seeking an award of counsel fees (see
Carnicelli v Carnicelli, 300 AD2d 1093, 1094; see generally McCracken
v McCracken, 12 AD3d 1201, 1201). While plaintiff asserted in support
of her motion that she incurred counsel fees solely because of
defendant’s failure to disclose his remarriage, the record establishes
that, even had he disclosed that information, the contested issues
regarding maintenance would have nevertheless required litigation.
Moreover, the record is silent regarding the court’s rationale for
awarding plaintiff counsel fees, and “thus we are unable to determine
whether the court considered ‘appropriate factors’ in granting” that
part of plaintiff’s motion (Carnicelli, 300 AD2d at 1094; see
                                 -2-                           806
                                                         CA 11-00835

generally Vicinanzo v Vicinanzo, 193 AD2d 962, 966). We conclude on
the record before us that the award is not appropriate, and we
therefore modify the order in appeal No. 1 by denying that part of
plaintiff’s motion seeking counsel fees and vacating the award of
counsel fees.

     With respect to appeal No. 2, we note that defendant appeals from
an amended domestic relations order (DRO) and that no appeal as of
right lies from a DRO (see Cuda v Cuda [appeal No. 2], 19 AD3d 1114,
1114). While we may treat the notice of appeal in appeal No. 2 as an
application for leave to appeal (see id.), we see no need to do so in
light of our determination in appeal No. 1.




Entered:   July 6, 2012                         Frances E. Cafarell
                                                Clerk of the Court
