LAUREN D. ROSEN
v.
LESLIE B. ROSEN
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The former husband is required to reimburse the former wife for 50% of all attorney's fees and costs incurred in the pending New York litigation at both trial and appellate levels, as specified in the marital settlement agreement, without the trial court's modifications.
[1] A trial court may not modify or rewrite the express terms of a marital settlement agreement when interpreting its provisions regarding allocation of litigation expenses,…
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Join FLexlaw to unlock all legal intelligenceFormer spouses executed a marital settlement agreement providing that they would jointly defend New York litigation involving limited partnerships own…
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GROSS, J.
The former wife appeals a February 8, 2022 amended order construing the parties’ detailed marital settlement agreement (“MSA”).
At the time the MSA was created, the former wife’s revocable trust owned limited partnerships involved with New York real property. The parties anticipated litigation regarding the partnerships.
The MSA says that the parties would “jointly defend said case(s), that each party shall pay 50% of all attorney’s fees and costs incurred in both the trial and appellate levels relating to any defense of any such lawsuit and that each party shall be responsible to pay 50% of any settlement relating to any such lawsuit . . . .”
The former husband disagreed with the former wife about what he owed under the MSA. After a hearing, the circuit court entered the February 8, 2022 amended order, which significantly rewrote the parties’ agreement. The MSA squarely placed the litigation expenses and the obligation to pay any final judgment upon the parties, without considering whether any other entities might also have a legal duty to contribute.
We reverse the February 8, 2022 amended order and direct the circuit court to enter a second amended order that omits numbered paragraph 5 on page 3 in its entirety.
We also direct the circuit court to amend paragraph 4 of the February 8, 2022 amended order to read as follows in the second amended order:
Based thereon, the Court concludes that the Former Husband shall be required to reimburse the Former Wife for 50% of all of the attorney’s fees and costs incurred and paid by her or her revocable trust heretofore with respect to the pending New York litigation, both at the trial level and appellate levels, and 50% of all of those incurred by the Former Wife or her revocable trust going forward with respect to the New York litigation (at both the trial and appellate levels) until the New York litigation is resolved by settlement or final judgment, decree or order.
We further direct that the second amended order include the following paragraph, after paragraph 4, as amended above:
The attorney’s fees and costs referenced in paragraph 4 as amended shall be paid by the former husband no later than five days after a demand by the former wife.
Finally, paragraph 6 of the February 8, 2022 amended order shall be omitted from the second amended order and replaced with the following:
The Court reserves jurisdiction to enforce this Order and the parties’ Final Judgment of Dissolution of Marriage and MSA incorporated therein and to enter such further orders as are legal and proper.
Reversed and remanded for further proceedings consistent with this opinion.
CONNER and FORST, JJ., concur.
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2 Not final until disposition of timely filed motion for rehearing.
3