Provisions in Settlement Agreement Which Govern Award of Attorney's Fees, Rather than Statutory Provisions, Control.

Provisions in Settlement Agreement Which Govern Award of Attorney's Fees, Rather than Statutory Provisions, Control.


In Berns v Halberstam, --- N.Y.S.2d ----, 2007 WL 4465050 (N.Y.A.D. 2 Dept.) the parties settlement agreement was incorporated but not merged into their judgment of divorce. The judgment of divorce stated that the father would have scheduled visitation with the parties' two daughters pursuant to the agreement. Article XXIV of the agreement provided that each party would pay his or her respective attorney for the rendition of services in connection with the agreement and the representation of him or her in "any lawsuit pending or to be commenced by and between the parties." Article XXVI set forth two specific circumstances where one party must pay for the other party's attorney's fees. The mother commenced proceedings for modification of the visitation provision, seeking to suspend the father's right to alternate weekend visitation. The parties settled these proceedings on the record, whereby the father's visitation rights were modified. The mother moved for an award of an attorney's fee, not pursuant to Article XXVI of the agreement, but rather pursuant to Family Court Act 651 and Domestic Relations Law 237(b). Family Court granted the mother's motion for fees related to legal work performed on two dates where the father caused unnecessary delay in the proceedings. The Appellate Division reversed. It held that where the parties have agreed to provisions in a settlement agreement which govern the award of attorney's fees, the agreement's provisions, rather than statutory provisions, control. Viewing Articles XXIV and XXVI in conjunction with each other, the agreement was clear and unambiguous. Article XXIV was a general waiver of attorney's fees, each party accepting responsibility to pay their respective counsel, and Article XXVI set forth two specific exceptions to the general waiver. The modification petition did not give rise to one of the two specific instances where an award of attorney's fees would be contractually required under Article XXVI. The modification petition was subject to the general waiver provisions of Article XXIV, which precluded an award of attorney's fees