Barnes v. Barnes

54 A.D.2d 963, 389 N.Y.S.2d 112, 1976 N.Y. App. Div. LEXIS 14882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1976
• Status: Published

Opinion

In support proceedings pursuant to article 4 of the Family Court Act, petitioner appeals, on the ground of inadequacy, from so much of an order of the Family Court, Westchester County, dated June 4, 1976, as awarded a counsel fee, but no disbursements, to petitioner’s attorney. Order modified, on the law and the facts, by adding thereto a provision directing respondent to pay disbursements in the amount of $262.75 to petitioner’s attorney. As so modified, order affirmed insofar as appealed from, with $50 costs and disbursements to petitioner. Section 438 of the Family Court Act does not preclude an award of disbursements to appellant’s counsel. Any differentiation between fee awards under the Domestic Relations Law and the Family Court Act would encourage forum shopping between court systems (see Matter of Audrey D. v Michael O., 77 Mise 2d 230). An award of counsel fees must take into consideration ability to pay, plus the nature and extent of those services which are required to deal with the marital dispute, and the reasonableness of their performance under the circumstances. Upon this record the amount awarded as a counsel fee was adequate. Latham, Acting P. J., Margett, Titone and Mollen, JJ., concur.