Justice John Colangelo
Wife Elizabeth sought to compel husband Patrick to cooperate in the sale of the former marital residence in this post-judgment matrimonial action. The motion centered around the listing for sale of the residence and the application of the stipulation of settlement the parties entered into detailing the mechanism for the listing and sale of the premises. The parties agreed to waive their rights to a hearing regarding attorneys fees, and sought court determination on the issue. The court noted the stipulation, not the parties’ economic conditions provided the standard for deciding the attorney fee applications of both parties. They stated in the stipulation that attorney fees should be imposed on the party who violated the stipulation. The court noted the stipulation did not preclude a finding of fault by both parties, rather than one party or the other. It also found both Elizabeth and Patrick failed to live up to the letter and spirit of the stipulation regarding the residence, resulting in needless litigation expenses. The court ruled both parties defaulted in the performance of the provisions of the stipulation, thus, both were responsible for litigation expenses incurred on the motion, and neither were entitled to an award of attorney’s fees.