In this matrimonial action, Motion Sequences 001 and 003 are consolidated for disposition. Defendant moves for an order directing Plaintiff to "fully comply with all aspects of the Stipulation of Settlement dated December 1, 2021" (hereinafter, "the parties' Stipulation of Settlement"), including paying her portion of the children's add-on expenses and transferring 3504 shares of [REDACTED] stock to Defendant, plus counsel fees.

Plaintiff opposes and cross-moves for an order directing Defendant to pay Plaintiff $55,678 and modifying Sections 14.35, 14.36, 14.37 and 14.38 of the parties' Stipulation of Settlement by setting a fixed budget for payment of the children's expenses each year with price increases based on inflation or, in the alternative, by altering each party's obligation to pay the children's expenses to 50% or vacating these sections altogether. Plaintiff further seeks a [*2]modification of Section 14.36 to direct that the parties utilize and equally pay for a forensic accountant to provide monthly accounting of expenses incurred.^[FN1]

Plaintiff also separately moves for an order vacating Sections 14.35, 14.36, 14.37 and 14.38 of the parties' Stipulation of Settlement due to a substantial change in circumstances and ordering that Defendant pay Plaintiff child support based upon the Child Support Standards Act (CSSA) and that the parties pay pro rata shares of the children's add-on expenses. Plaintiff further moves for an order directing the immediate listing and sale of the former marital residence located at [REDACTED] and modifying the parties' Stipulation of Settlement as necessary to do so. Defendant opposes and cross-moves for counsel fees and sanctions pursuant to 22 NYCRR § 130-1.1.

The parties married on June 1, 1996. They have three children together. This action commenced by filing of a Summons and Complaint on March 24, 2021. The parties entered into a Stipulation of Settlement dated December 1, 2021 and a Judgment of Divorce was granted on December 20, 2021. Plaintiff initiated a plenary action seeking to set aside the Stipulation of Settlement which was consolidated with this action by order dated August 22, 2022. The Stipulation of Settlement states, in relevant part, that:

6.1. In the event that either party defaults with respect to any obligation under this Stipulation, and such default is not remedied within twenty (20) days after receipt of a written notice sent to that party and his/her attorneys by certified mail, return receipt requested, specifying the default, the party in default shall indemnify the other against and shall expeditiously reimburse such other party for any and all reasonable expenses, [*3]costs and attorneys', accountants' and experts' fees resulting from or made necessary by the bringing of any lawsuit, the retainer of counsel or other proceeding to enforce any of the financial terms, covenants or conditions of this Stipulation to be performed or complied with or to enforce any of the financial right pursuant to this Stipulation.

6.2. For the purpose of this Stipulation, it is understood and agreed that in the event a lawsuit or other proceeding shall be instituted to enforce any of the financial terms, covenants or conditions of this Stipulation or any of the financial rights pursuant to this Stipulation, and, after the institution of such action or proceedings, such term, covenant or condition of the Stipulation, the provisions of Paragraph 1 of this Article shall still be enforced against the defaulting spouse.

. . .

14.35. Add-On Expenses . . . be paid as follows:

(a) From the date of execution of this Agreement through December 31, 2021, the Mother's share shall be 80% of these expenses and Father's share shall be 20% thereto.

(b) From January 1, 2022 through December 31, 2022, the Mother's share shall be 80% of these expenses, and Father's share shall be 20% of these Expenses.

(c) From January 1, 2023 through December 31, 2023, the Mother's share shall be 70% of these expenses, and Father's share shall be 30% of these Expenses.

(d) From January 1, 2024 through December 31, 2024, the Mother's share shall be 60% of these expenses, and Father's share shall be 40% of these Expenses.

(e) From January 1, 2025 forward, the parties agree to share in said Children's Expenses equally, 50/50.

14.36. The Children's Day to Day Expenses . . . shall be paid out of a joint account with combined pro rata deposits in accordance of paragraph 14.35 totaling 1/12 of said estimated annual day-to-day expenses . . . on the 1st of each month. For avoidance of doubt, the rent and other expenses for the additional apartment shall only be part of the Children's Day to Day Expenses only until January 31, 2022 . . . Thereafter, each parent will be solely responsible for their own housing costs when not in residence at 9 West 205 Street . . .

14.37. The Children's Expenses which are not day to day expenses shall be known as major expenses to which the parties' pro rata share of these expenses shall be paid in accordance with paragraph 14.35 and paid at least 15 days prior to the due date of said major expense.

14.38. Any Children's Expenses that are not listed in this Stipulation or any of the Exhibits annexed thereto, whether day-to-day or major in nature, shall be paid in accordance with paragraph 14.35.

. . .

16.3. The parties agree that they shall continue in Joint ownership of the property until September 1, 2026 when at that time the property will be listed on the market for sale with a mutually agreed upon realtor, unless otherwise mutually agreed (in writing, via email) to list sooner. Pending sale and for so long as the parties continue in their nesting arrangement for the benefit of the minor children . . . the parties shall pay the expenses related to the marital residence, including repairs and wear and tear maintenance (upkeep) of the property, monthly property maintenance, real estate taxes, capital improvement assessments, utilities and mortgage payments in accordance with their pro [*4]rata shares stated in paragraph 14.35 above.

. . .

16.15. The Wife and the Husband have the following deferred compensation income accounts and future restricted stock interests . . . which they have agreement to divide as follows:

. . .

(b) Wife has 5700 shares of [REDACTED] stock purchases at IPO; Wife agrees to transfer ½ of the shares to Husband.

(c) Wife has [REDACTED] Restricted Stock grant of 45,370 shares which, except for events or actions to the contrary, vests or has vested in four equal installments beginning August 2021, based on continued employment as outlined in the plan documents or any may vest as dictated by any future settlements reached with [REDACTED].

(i) As to Wife's Restricted Stock grant vested in 2021, Wife agrees to transfer to husband one half of shares as received, net of shares sold or withheld for taxes at Wife's effective tax rate, within 14 days of execution of this agreement unless she is restricted from sale of stock as a Section 16 officer of [REDACTED], in which case she shall pay as soon as sale of the stock is practicable.

Additionally, the parties' Stipulation of Settlement includes an Exhibit A that lists certain types of expenses as children's expenses along with an "ESTIMATED ANNUAL AMT" for each expense. The Exhibit separates the children's expenses into "Day-to-Day/Recurring" and "Major/Periodic". The Recurring expenses include mortgage payments and other carrying costs of the marital residence, plus the children's groceries, clothing, transportation and other such expenses. The Periodic expenses include college for the children, the property taxes and home insurance on the marital residence as well as items such as car insurance and repair and family vacations. Some of the expenses listed, such as "Dog — Food, Medical . . . $760" were agreed to by the parties even though they are not traditionally considered to be children's expenses. Some expenses that are traditionally considered to be children's expenses were not included in the list but Section 14.38 of the parties' agreement states that "Any Children's Expenses that are not listed in this Stipulation or any of the Exhibits annexed thereto, whether day-to-day or major in nature, shall be paid in accordance with paragraph 14.35."

Plaintiff argues that the parties' Stipulation of Settlement is invalid because its terms are contrary to logic, manifestly unfair, the product of coercion, fraud, and mistake, and are inequitable and unconscionable. Alternatively, Plaintiff argues that a modification of the parties' Stipulation of Settlement is necessary due to a substantial change in the parties' circumstances.

"Marital settlement agreements are judicially favored and are not to be easily set aside." See Simkin v Blank, 19 NY3d 46, 52 (2012). However, "[a] stipulation of settlement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud, or where it is shown to be manifestly unjust because of the other spouse's overreaching." See Potter v Potter, 116 AD3d 1021, 1022 (2d Dept 2014) (internal citations and quotation marks omitted); see also Kabir v Kabir, 85 AD3d 1127, 1127 (2d Dept 2011) ("A separation agreement or stipulation of settlement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability. Although judicial review of such agreements is to be exercised sparingly, with the goal of encouraging parties to settle their differences by themselves." [citations and quotation marks omitted]).

"A reviewing court examining a challenge to a postnuptial agreement will view the agreement in its entirety and under the totality of the circumstances." See Kabir, 85 AD3d at 1127—1128; see also Christian v Christian, 42 NY2d 63, 72 (1977) ("[C]ourts have thrown their cloak of protection [over] separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity.").

"A separation agreement may be set aside upon a showing of fraud or duress, or where the agreement is manifestly unfair to a spouse because of the other spouse's overreaching. To rescind a separation agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness. Although courts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching, the general rule is that if the execution of the agreement is fair, no further inquiry will be made."

See Kerr v Kerr, 8 AD3d 626, 626—627 (2d Dept 2004) (internal citations omitted). "[N]o actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other's overreaching." See Kavanagh v Kavanagh, 2 AD3d 688, 689 (2d Dept 2003) (internal quotation marks and citations omitted). "A contract is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his [or her] free will." See Shah v Mitra, 171 AD3d 971, 976 (2d Dept 2019) (internal citations and quotation marks omitted). Lastly, "an unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense." See Ku v Huey Min Lee, 151 AD3d 1040, 1041 (2d Dept 2017) (internal quotation marks and citations omitted).

Plaintiff argues that Defendant coerced her to sign the parties' Stipulation of Settlement and that his threats against her were so intimidating that she felt under duress to agree. Her primary support is that, in May 2021, Defendant asked her to discuss the terms of the stipulation together in person. Plaintiff states that she agreed to meet but that Defendant pressured her significantly in the conversation and that, when she would not consent to those changes, Defendant became very angry and that she felt he may attack her. Plaintiff states that Defendant stood up "in a very threatening way" and yelled "LETS GO TO COURT!" Plaintiff then left. The parties met repeatedly thereafter to discuss the settlement, but Plaintiff states that each time these meetings ended because Plaintiff felt threatened. Plaintiff states that she signed the Agreement because she could not take the harassment that she endured from Defendant any further and that she "did not know what else he might be capable of". Defendant disputes Plaintiff's account.

Plaintiff's arguments do not meet the high bar that courts have set for invalidating the parties' separation agreement. The meeting described by Plaintiff occurred over six months prior to the signing of the document and the parties — both represented by counsel — had extensive negotiations after that meeting. Most notably, Plaintiff signed an allocution concurrently with the Stipulation which states that "this Stipulation completely and perfectly expresses her understanding of the terms of the agreement which she has arrived at with counsel and [M.]", that "this Stipulation expresses the entire understanding and agreement between herself and M., without any secret promises or other agreements or inducement, not therein expressed or stated", [*5]that "her assent to this Stipulation was reached after mature deliberation and after consultation with counsel and/or other professionals of her own choice", that "her execution of this Stipulation is of her own free act and deed", that "neither the terms of the Stipulation arrived at between her and M., or her signing and acknowledging of the foregoing Stipulation was occasioned, brought about or influenced by the use of any duress, coercion or undue influence practiced, brought or exercised upon her in any manner by any person whomsoever" and "[t]hat she has had the opportunity to review the terms of the Stipulation with her attorney and professionals of her own choice, and is satisfied with the services rendered to her by said attorney and professionals." See NYSCEF Document No. 49. This allocution similarly undermines Plaintiff's argument that she did not fully understand the terms of the document — in particular, that she was under the impression that the parties had agreed to caps on spending.^[FN2]

Plaintiff's argument is further undermined by the uncontested fact that she is a c-suite executive who has routinely commanded seven figure compensation and can be expected to understand legal documents, particularly as she was represented by counsel and was extensively involved in negotiations. Furthermore, in light of the parties' financial positions, the agreement is not "manifestly unfair" — particularly considering that the parties negotiated for equal payments of expenses after a few years — and Plaintiff has not demonstrated that it was arrived at in an inequitable fashion. See Kerr, 8 AD3d at 626—627. Plaintiff's request to invalidate the parties' Stipulation of Settlement is accordingly DENIED.

Plaintiff alternatively requests that the court modify the parties' Stipulation of Settlement due to an alleged substantial change in circumstances. Specifically, Plaintiff requests that the court direct that the court appoint a forensic accountant to perform monthly expense verifications, impose a fixed budget for children's expenses, and limit price increases each year to the inflation determined by the Consumer Price Index.

"Two fundamental principles of contract interpretation are that 'agreements are to be construed in accord with the parties' intent', and that '[t]he best evidence of what parties to a written agreement intend is what they say in their writing.'" See Van Kipnis v Van Kipnis, 43 AD3d 71, 77 (1st Dept 2007) (internal citations omitted). "If the agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity." Greenfield v Philles Records, 98 NY2d 562, 569-570 (2002). "Where the document makes clear the parties' over-all intention, courts examining isolated provisions 'should then choose that construction which will carry out the plain purpose and object of the [agreement]'" See Kass v Kass, 91 NY2d 554, 567 (1998) (internal citations omitted).

However, courts have modified child support arrangements where a party has [*6]demonstrated a substantial change in circumstances:

"In determining whether there has been a change in circumstances warranting a modification of a parent's child support obligation, the court must consider several factors, including the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children . . . A substantial change in circumstances may be measured by comparing the parties' financial situation at the time of the application for modification with that existing at the time the order sought to be modified was issued."

See Matter of Baumgardner v Baumgardner, 126 AD3d 895, 897 (2d Dept 2015) (internal quotation marks and citations omitted); see also Domestic Relations Law § 236[B][9][b][2][i]; Family Ct Act § 451[3][a]; Matter of Prisco v. Buxbaum, 275 AD2d 461, 461 (2d Dept 2000) ("In determining whether there has been a substantial change in circumstances, the change is measured by comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order or judgment."). However, "[a] parent's child support obligation is not necessarily determined by his or her current financial condition, but rather by his or her ability to provide support." See Matter of Davis v. Davis, 13 AD3d 623, 624 (2d Dept 2004); see also Matter of Scott S. v Stephanie L., 189 AD3d 651, 651 (1st Dept. 2020) (upholding support payments where "although [Petitioner's] assets were reduced, petitioner did not lack the means to pay his monthly child support or the ability to generate income."); see generally Family Ct Act § 413(1)(a).

Plaintiff argues that there has been a substantial change in her financial circumstances due to her becoming unemployed on July 19, 2022. In 2023, Plaintiff asserts that she earned $161,537 compared to Defendant's earnings of $565,000.^[FN3] Plaintiff also argues that she lacks liquid assets to continue making payments.^[FN4] She acknowledges that she has considerable value in her retirement accounts but that withdrawing from these incurs high penalties.

Defendant argues that Plaintiff has a long history of high earnings at multiple positions despite periodic unemployment. Defendant notes — and Plaintiff does not substantially dispute — that Plaintiff has been unemployed multiple times but has earned an average of over $800,000 annually in the long period between 2007 and 2022. That includes years in which Plaintiff earned considerably less due to extended unemployment — including just $10,772 in 2019 — and years where Plaintiff earned over $3,000,000 (in 2018) and over $1,000,000 (in 2007, 2008, 2016, and 2022). Defendant argues that the court should instead look directly at Plaintiff's spending — which has apparently increased since Plaintiff's unemployment — to gauge Plaintiff's actual financial condition.

It is uncontested that Plaintiff's income and liquid assets are less than when the Settlement Agreement was signed, but that is not the standard for modifying a Stipulation of Settlement. Plaintiff has significant assets after over a decade of exceptional earnings and simply has not met her burden of demonstrating that she is unable to continue making the agreed-upon [*7]payments or that a modification of the parties' Stipulation of Settlement is otherwise appropriate. See, e.g., Davis, 13 AD3d at 624. The court notes that Plaintiff's request for the parties to evenly share the burden of children's expenses will be realized pursuant to the terms of the parties' Stipulation of Settlement when the parties each become obligated to pay 50% of the children's expenses beginning January 1, 2025 — which is less than six months away.

Plaintiff's requests for the court to appoint a forensic accountant to perform monthly expense verifications, impose a fixed budget for children's expenses, and limit price increases each year to the inflation determined by the Consumer Price Index are also DENIED. The parties extensively negotiated their Stipulation of Settlement and reached an agreement to waive child support in favor of a payment scheme for the children's expenses. Where an "agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity." See Greenfield, 98 NY2d at 570. Plaintiff acknowledges that she agreed to a framework for paying the children's expenses that did not include a fixed budget and which broadly defined children's expenses. Plaintiff argues now that the expenses are greater than she anticipated, but implicit in an arrangement without a fixed cap on spending is the potential for spending greater than the agreed-upon estimates. The parties extensively debated whether the payments were excessive in papers with each party accusing the other of spending excessively.^[FN5] It is unnecessary to resolve that dispute however because neither party has demonstrated that the other is spending inordinate amounts and Plaintiff's primary argument — which Defendant disputes — that Defendant's agreed-upon 20% share enabled increased spending has been largely mooted now that he is paying 40% of expenses and will soon by paying 50% on January 1, 2025 and thereafter. Similarly, Plaintiff has not demonstrated that the monthly expense verifications should be modified — or even that Defendant is not in compliance with this requirement.^[FN6] However, neither party is obligated to pay for expenses that are not properly verified. The parties can agree to less onerous documentation if they so choose but, in lieu of a mutually agreed-upon system, both parties remain obligated to produce receipts [*8]for all expenses.

Plaintiff next requests that the court modify the parties' Stipulation of Settlement to the extent that it states that the "parties agree that they shall continue in Joint ownership of the property until September 1, 2026 when at that time the property will be listed on the market for sale with a mutually agreed upon realtor, unless otherwise mutually agreed (in writing, via email) to list sooner." See Stipulation of Settlement § 16.3. Plaintiff argues that selling the property now is necessary due to the financial difficulties of the parties. Plaintiff indicates that mortgage payments total $5,498 per month, real estate taxes total $2,303 per month, maintenance costs total $3,164 per month, and homeowner's insurance totals $533 per month for a total of $137,976 per year. Plaintiff argues that the property would sell for approximately $3,200,000 and that it has a $1,557,932 mortgage on it. However, as discussed above, Plaintiff has not demonstrated the level of financial difficulties necessary to warrant modification of the parties' Stipulation of Settlement — particularly considering the undisputed impact that the sale of the Marital Residence would have on the two children still residing there.^[FN7] While the housing expenses for the Marital Residence are considerable, that expense was clearly envisioned by the parties as the property is slated to be sold while the children are in college to assist with expenses.

Lastly, as the court has denied Plaintiff's request to modify the amounts owed for children's expenses pursuant to the parties' Stipulation of Settlement, Defendant asks in motion papers for the court to appoint a forensic accountant to calculate the amounts owed by Plaintiff. This request is DENIED. Defendant has presented no reason why Defendant cannot submit a calculation of amounts owed without the unnecessary additional expense of hiring a forensic accountant. If Defendant is unable to calculate the amounts owed, he may retain a forensic accountant to assist him at his own expense. Accordingly, Defendant's request is DENIED.

Defendant requests that the court direct Plaintiff to transfer 3,405 shares of [REDACTED] stock to him pursuant to Section 16.15(c)(i) of the parties' Stipulation of Settlement. Plaintiff requests that the court order Defendant to pay Plaintiff $55,678. These requests for relief relate to the same section of the parties' Stipulation of Settlement, also quoted above, which states that:

16.15. The Wife and the Husband have the following deferred compensation income accounts and future restricted stock interests . . . which they have agreement to divide as follows:

. . .

(c) Wife has [REDACTED] grant of 45,370 shares which, except for events or actions to the contrary, vests or has vested in four equal installments beginning August 2021, based on continued employment as outlined in the plan documents or any may vest as dictated by any future settlements reached with [REDACTED]

(i) As to Wife's Restricted Stock grant vested in 2021, Wife agrees to transfer to husband one half of shares as received, net of shares sold or withheld for taxes at Wife's effective tax rate, within 14 days of execution of this agreement unless she is restricted from sale [*9]of stock as a Section 16 officer [REDACTED], in which case she shall pay as soon as sale of the stock is practicable.

Plaintiff asserts that she was restricted from sale of the 11,342 shares of stock that she received on August 14, 2021 of stock as a Section 16 officer. The parties agree that the shares were valued at $44.40 per share — or $503,584.80 for all of the shares — at the time of vesting. Plaintiff states that the applicable tax rate for 2021 was 43.30% — which Defendant also does not dispute — and Plaintiff represents to the court that she was taxed upon the shares being received for a total tax bill of $218,052.22. Plaintiff states that she was only able to sell the shares on April 25, 2022, but that the value of the stock had plunged in the interim to $16.23 per share — or $184,080.66 for all of the shares.^[FN8] As such, Plaintiff argues that "one half of shares as received, net of shares sold or withheld for taxes at Wife's effective tax rate" is worth a negative value. Accordingly, per Plaintiff's calculations, Defendant actually owes Plaintiff a total of $16,985.68.^[FN9] Despite these calculations, Plaintiff transferred 2,384 shares to Defendant with a total value of $38,692.32 and explained at the time that the appropriate amount was zero or negative. In light of Defendant's request for the court to direct Plaintiff to send additional shares, Plaintiff now seeks to have the value of those shares transferred back to her and to have Defendant also give her the $16,985.68 that she argues she was originally entitled to — which would require a total transfer of $55,678 from Defendant to Plaintiff.

Defendant argues that the language of the agreement does not refer to the "value" of the shares but instead specifically refers to "one half of shares as received, net of shares sold or withheld for taxes at Wife's effective tax rate." See Stipulation of Settlement § 16.15(c)(i) (emphasis added). Defendant argues that Plaintiff did not sell or withhold shares when she paid her taxes so no shares should be deducted from the total number of shares regardless of what taxes she paid. Defendant notes that the decision to not withhold shares was entirely within Plaintiff's discretion and argues that he should not be punished for her decision to not do so. As such, Defendant requests that the court direct Plaintiff to transfer half of the shares minus the 2,384 shares already transferred.

"Where the document makes clear the parties' over-all intention, courts examining isolated provisions 'should then choose that construction which will carry out the plain purpose and object of the [agreement].'" See Kass, 91 NY2d at 567 (internal quotation marks and citations omitted). Here, the plain purpose and object of the parties' Stipulation of Settlement — as with all such agreements — was to equitably divide marital assets and debts and to establish post-marital obligations. The equitable division of assets in relation to this stock was achieved by [*10]directing Plaintiff to transfer one half of the stock she then possessed to Defendant when able. However, this asset also came with an accompanying debt in the form of a tax bill. Defendant claims that the parties intended to equally divide the marital asset but not to equally divide the marital debt attached to that asset unless specifically achieved through use of stock. Such an unorthodox approach — akin to dividing the value of a piece of property but not the mortgage on that property — would require exceptionally clear language evincing that intent. As written, this agreement does not clearly evince that intent.

It would have been simple in such a carefully negotiated agreement to clarify that if Plaintiff paid her tax burden by withholding stock she would only be liable for half of it but if she paid in any other manner then she would be liable for all of it. With such clear language, it is hard to imagine Plaintiff declining to pay for her tax burden by withholding shares.^[FN10] By contrast, Plaintiff's version of the parties' intent is far more closely tracks to "the plain purpose and object of the [agreement].'" See id. The parties intended to divide the asset equally, less the taxes on that asset which were also to be divided equally. Where the marital debt on an asset exceeds the value of the asset, the marital unit is liable for that difference — which is what Plaintiff now asks the court to direct.

Plaintiff's request for an order directing Defendant to pay Plaintiff a total of $55,678 is GRANTED. Defendant's request for additional shares is DENIED. Defendant shall pay this amount to Defendant within fourteen (14) days of service of this Decision and Order with Notice of Entry.

Defendant requests that the court direct Plaintiff to pay counsel fees and sanction Plaintiff for frivolous litigation. Plaintiff opposes.^[FN11]

Plaintiff's request for the court to void or modify the Stipulation of Settlement were ultimately unsuccessful but the court does not consider them to be frivolous. Parties are expected to fulfill their obligations even when claiming financial hardship — a claim this court has now rejected in this matter — but an award of counsel fees and the issuance of sanctions are within the sound discretion of the court and the court declines to grant Defendant's request for sanctions. See, e.g., 22 NYCRR 130-1.1(a).

However, Defendant's request for counsel fees also implicates the parties' Stipulation of Settlement which states that:

"In the event that either party defaults with respect to any obligation under this Stipulation . . . the party in default shall indemnify the other against and shall expeditiously reimburse such other party for any and all reasonable expenses, costs and attorneys', accountants' and experts' fees resulting from or made necessary by the bringing of any lawsuit, the retainer of counsel or other proceeding to enforce any of the financial terms, covenants or conditions of this Stipulation to be performed or complied [*11]with or to enforce any of the financial right pursuant to this Stipulation."

See Stipulation of Settlement § 6.1; see also Stipulation of Settlement § 6.2 (clarifying that Section 6.1 still applies once post-settlement litigation has commenced). "Where the parties have agreed to provisions in a settlement agreement that govern the award of attorney's fees, the agreement's provisions, rather than statutory provisions control." (Roth v Roth, 116 AD3d 833, 834 [2d Dep't 2014]). So long as the contractual requirements of the default provision are met, this Court must award the Mother legal fees per the terms of the Stipulation. (See Szekely v Szekely, 73 AD3d 1158, 1159 [2d Dep't 2010] ["Contrary to the determination of the Supreme Court, the defendant is entitled to be reimbursed for 'necessary and reasonable' attorney's fees in connection with this proceeding pursuant to the default provision in the parties' settlement agreements."]). Here, Defendant prevailed on the stock transfer enforcement argument for which Plaintiff was in default. Nevertheless, the underlying papers anemic nature with regards to proof of counsel fees prevents an award of fees under the contract.

The proof before this Court demonstrates that Defendant retained his firm for a retainer amount of $10,000.00 in relation to this divorce action. (Def. Ex. 40 [NYSCEF Doc. No. 225]). However, that is all that was provided. No billing statements were submitted. Thus, the only fees evidenced before this Court are $10,000.00. Billing statements are not included. The Court finds Defendant's papers fail to substantially comply with 22 NYCRR 202.16(k), 1400.2, and 1400.3 with respect to the $10,000.00 retention fee (or any feed above said sum) by providing the retainer agreement and a statement of net worth. While this Court sees the agreement, there is no proof before this Court of any itemized billing statements or services rendered. This inadequate showing has tied this Court's hands. (See Mimran v Mimran, 83 AD3d 550, 550-551 [1st Dep't 2011] [Finding counsel fees inappropriate where billing statements were not provided.]). Accordingly, Defendant is request for counsel fees is DENIED.

Any requests for relief not discussed herein are DENIED.

This constitutes the decision and order of the court.