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

239
CA 14-01721
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


J. RICHARD WILSON, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

REBECCA P. WILSON, DEFENDANT-APPELLANT.


M W MOODY LLC, NEW YORK CITY (MARK WARREN MOODY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN LLP, ROCHESTER
(MICHAEL G. PAUL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


      Appeal from an order of the Supreme Court, Monroe County (John M.
Owens, J.), entered April 3, 2014. The order, insofar as appealed
from, denied defendant’s request that plaintiff be compelled to pay
defendant for, inter alia, her moving and storage costs and counsel
fees.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs, judgment is ordered imposing a
sanction on defendant, and the matter is remitted to Supreme Court,
Monroe County, to determine the amount of the sanction in accordance
with the following memorandum: In this postjudgment matrimonial
proceeding, defendant appeals from an order that, insofar as appealed
from, denied her request for counsel and expert fees, as well as
moving and storage costs. Upon entry of the underlying judgment of
divorce, defendant received, inter alia, maintenance, plaintiff’s
401(k) account, and the marital residence. The parties agreed that
they would attempt to resolve any disputes over undistributed property
before seeking judicial intervention, and plaintiff commenced this
proceeding only when they were unable to do so. The parties
stipulated that Supreme Court would determine on the parties’ written
submissions the contested issue regarding distribution of certain
personal property. The court resolved the dispute by distributing the
property at issue and denying each parties’ request for ancillary
relief.

     We reject defendant’s contention that the court abused its
discretion in denying her request for counsel and expert fees because
she is the less monied spouse. Although “[a]n award of [counsel] and
expert fees pursuant to Domestic Relations Law § 237 (a) will
generally be warranted where there is a significant disparity in the
financial circumstances of the parties” (Vitale v Vitale, 112 AD3d
614, 615; see Leonard v Leonard, 109 AD3d 126, 129-130), the ultimate
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                                                         CA 14-01721

decision whether to award such fees “lies, in the first instance, in
the discretion of the trial court and then in the Appellate Division
whose discretionary authority is as broad as [that of] the trial
court[]” (O’Brien v O’Brien, 66 NY2d 576, 590). “[I]n exercising its
discretionary power to award counsel [and expert] fees, a court should
review the financial circumstances of both parties together with all
the other circumstances of the case, which may include the relative
merit of the parties’ positions” (DeCabrera v Cabrera-Rosete, 70 NY2d
879, 881; see Gilliam v Gilliam, 109 AD3d 871, 873; Ciampa v Ciampa,
47 AD3d 745, 748). “A court may consider whether either party has
engaged in conduct or taken positions resulting in a delay of the
proceedings or unnecessary litigation” (Vitale, 112 AD3d at 615).
Here, we conclude that the court did not abuse its discretion in
declining to award counsel and expert fees to defendant inasmuch as
this postjudgment proceeding was the result of her obstructionist
conduct (see Johnson v Chapin, 12 NY3d 461, 467, rearg denied 13 NY3d
888; Vitale, 112 AD3d at 615; Blake v Blake [appeal No. 1], 83 AD3d
1509, 1509). In addition, the relative merit of plaintiff’s position
in the underlying litigation weighs in favor of denying defendant’s
application for counsel and expert fees (see generally DeCabrera, 70
NY2d at 881-882; Chesner v Chesner, 95 AD3d 1252, 1253).

     Similarly, we conclude that the court did not abuse its
discretion in denying defendant’s request for moving and storage costs
where, as here, the record establishes that the costs incurred by
defendant were entirely avoidable, and were the result of her own
obstructionist tactics (see generally Blake, 83 AD3d at 1509).

     Finally, we agree with plaintiff that it is appropriate to
sanction defendant in this case because the appendix provided by
defendant, as the appellant, failed to include “such parts of the
record on appeal as are necessary to consider the questions involved,
including those parts the appellant reasonably assumes will be relied
upon by the respondent” (CPLR 5528 [a] [5]; see 22 NYCRR 1000.4 [d]
[2] [i]; Mure v Mure, 92 AD3d 653, 653; Wittig v Wittig, 258 AD2d 883,
884-885; cf. Grossman v Composto-Longhi, 96 AD3d 1000, 1001). Because
of her failure to comply with this requirement, we sanction defendant
by imposing costs equal to the amount incurred by plaintiff in the
preparation and submission of his own appendix to defend this appeal
(see CPLR 5528 [e]; Wittig, 258 AD2d at 885; see generally Mure, 92
AD3d at 653), and we remit the matter to Supreme Court to determine
that amount, excluding attorneys’ fees (see Wittig, 258 AD2d at 885).




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
