Matter of S.M. v. L.M., NYLJ| April 09, 2021, Date filed: 2021-03-19, Court: Family Court, Nassau, Judge: Judge Linda Mejias:
“It is unrefuted that the Petitioner failed to comply with Article XXX of the Stipulation, which requires proper notice of any alleged default in the parties’ custody arrangement to be sent in writing to the defaulting party, and served by mail, return receipt requested, within twenty (20) days of said default. Though the provision does not set forth an explicit waiver of the right to seek fees under a relevant statute, provisions such as these are aimed at reducing the parties’ need for court intervention thereby limiting their exposure to unnecessary legal fees. While no one can guarantee that a non-compliant party will cure a default, the hope is that they will and that litigation will therefore not be necessary.
Generally, “[w]here 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” (Matter of Berns v. Halberstam, 46 A.D.3d 808, 809, 848 N.Y.S.2d 323 ; accord Matter of Tanenbaum v. Caputo, 81 A.D.3d 839, 839, 916 N.Y.S.2d 811 ; see Gardo v. Radominski, 252 A.D.2d 971, 972, 676 N.Y.S.2d 371 ). “However, a party may seek the recovery of fees under both the statute and an agreement, unless the agreement contains an express waiver of the right to apply under the statute…, [and] provided that the party may not recover twice for the same fees” (Alan D. Scheinkman, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 14, Domestic Relations Law §237 at 19; see generally Millard v. Millard, 246 A.D.2d 349, 350, 667 N.Y.S.2d 714 ; Canick v. Canick, 122 A.D.2d 767, 768-769, 505 N.Y.S.2d 652 ). Where there is no express waiver, a statutory award of counsel fees remains discretionary (see Canick v. Canick, 122 A.D.2d at 769, 505 N.Y.S.2d 652).