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

243
CA 11-02094
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.


FRANK M. PIACENTE, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

JANICE J. PIACENTE, DEFENDANT-RESPONDENT.


DONALD J. MURPHY, UTICA, FOR PLAINTIFF-APPELLANT.

WILLARD R. PRATT, III, SYLVAN BEACH, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Herkimer County
(Michael E. Daley, J.), entered June 6, 2011 in a divorce action. The
order directed plaintiff to pay to defendant the sum of $96,564.37,
plus interest, costs and attorneys’ fees.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating that part directing
plaintiff to pay interest prior to the entry of the order and as
modified the order is affirmed without costs, and the matter is
remitted to Supreme Court, Herkimer County, for a determination
whether plaintiff’s failure to transfer the remaining amount owed to
defendant pursuant to the judgment of divorce was willful.

     Memorandum: Plaintiff appeals from an order granting, inter
alia, that part of defendant’s motion seeking enforcement of the
judgment of divorce insofar as it distributed certain assets.
Contrary to the contention of plaintiff, the clear and unambiguous
language of the parties’ stipulation, which was incorporated but not
merged into the judgment of divorce, provided that plaintiff would pay
to defendant a total amount of $130,000 (see generally Lape v Lape, 66
AD3d 1405, 1406). Thus, we conclude that Supreme Court properly
determined that plaintiff was required to transfer to defendant from
his IRA account the amount of $96,564.37, i.e., the balance owed to
her after the transfer of a joint investment account.

     We reject plaintiff’s further contention that the court erred in
awarding defendant attorneys’ fees without first conducting a hearing
to determine the reasonableness of the fees. Plaintiff did not
request such a hearing, and thus he waived that right (see Bogannam v
Bogannam, 60 AD3d 985, 987). In any event, we conclude that the court
properly awarded fees to defendant, “the less monied spouse,” in this
enforcement proceeding, inasmuch as plaintiff failed to rebut the
statutory presumption that defendant is entitled to attorneys’ fees
(Domestic Relations Law § 237 [b]).
                                 -2-                           243
                                                         CA 11-02094

     Finally, plaintiff contends that the court erred in ordering him
to pay interest on the remaining amount owed to defendant from the
date he transferred the joint account to defendant to the date of the
hearing on the motion. We are unable to determine on this record
whether the court found that plaintiff’s failure to transfer the funds
from the IRA account was willful (see Domestic Relations Law § 244;
cf. Goldkranz v Goldkranz, 82 AD3d 699, 700). We therefore modify the
order by vacating that part awarding defendant interest prior to the
entry of the order, and we remit the matter to Supreme Court for a
determination whether plaintiff’s failure to transfer those funds was
willful.




Entered:   March 16, 2012                      Frances E. Cafarell
                                               Clerk of the Court
