Carter v. Carter

65 A.D.2d 765, 410 N.Y.S.2d 119, 1978 N.Y. App. Div. LEXIS 13591

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1978
• Status: Published

Opinion

—In a support proceeding brought pursuant to article 4 of the Family Court Act, the petitioner husband appeals from an order of the Family Court, Rockland County, dated April 1, 1977, which granted the respondent wife’s motion for attorney’s fees. Order reversed, on the law, without costs or disbursements, and motion denied. Section 438 of the Family Court Act provides: "In any proceeding under this article by a wife or former wife, against her husband, or former husband, including proceedings for herself and her children, or by a person on behalf of children only, or at any hearing to modify or enforce an order entered in that proceeding or a proceeding by a husband or former husband to modify a decree of divorce, separation, or annulment, including an appeal under article ten the court may allow counsel fees at any stage of the proceeding, to the attorney representing the wife, former wife or person on behalf of children.” By the terms of the statute, in a support proceeding only a wife or former wife may obtain an award for counsel fees, and only where she initiates the proceeding. Thus two classifications inhere in the statute, a sex-based classification and a litigatory classification. No claim of sex-based discrimination has been presented on this appeal and we offer no opinion as to this classification’s effect on the validity of the statute. As to the litigatory classification, there is clearly a rational basis for its inclusion in the statute. The purpose of section 438 is to insure that a person claiming a right to support

* and who is likely to be financially hard pressed can obtain the services of an attorney to litigate the matter (cf. Matter of Reisch v Reisch, 85 Mise 2d 107). Since the litigatory classification is rationally related to the purpose of the statute it is constitutionally enforceable, and bars respondent’s claim for counsel fees in this proceeding. Shapiro, J. P., Cohalan, Margett and O’Connor, JJ., concur.

This would include an individual who is defending an attack against the existing support provisions of a decree of divorce, separation, or annulment.