D'Amato v. D'Amato

Appellate Division of the Supreme Court of New York

D'Amato v. D'Amato

198 A.D.2d 255, 603 N.Y.S.2d 872, 1993 N.Y. App. Div. LEXIS 10348

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 8, 1993

StatusPublished

Cited by3 cases

This text of 198 A.D.2d 255 (D'Amato v. D'Amato) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

D'Amato v. D'Amato, 198 A.D.2d 255, 603 N.Y.S.2d 872, 1993 N.Y. App. Div. LEXIS 10348 (N.Y. Ct. App. 1993).

Pincite

Opinion

—In a matrimonial action in which the parties were divorced by a judgment dated December 10, 1979, the plaintiff mother appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 28, 1991, as, after a hearing, (a) directed her to pay child support in the sum of $77 per week, and (b) denied her application for counsel fees.

[256]*256Ordered that the order is affirmed insofar as appealed from, with costs.

The parties were divorced in 1979. The mother was granted custody of the children. In May 1988 the parties’ last unemancipated child went to live with her father, the defendant. By order dated May 16, 1989, custody of that child was transferred to the defendant.

Contrary to the plaintiff’s assertion, we find that the Supreme Court properly determined that the plaintiff should pay $77 per week to the defendant for child support. The defendant’s request for an award of child support was appropriate, since the addition of the child to the father’s household constituted a material change of circumstances (see, Matter of Alice C. v Bernard G. C., 193 AD2d 97; see, Levy v Levy, 143 AD2d 975). Furthermore, the Supreme Court properly applied the Child Support Standards Act (hereinafter CSSA) in determining the amount of child support. It has been recognized that in light of the paramount interests of children, the need for support, and because the CSSA represents important public policy, the CSSA should be applied to matters which were commenced prior to the effective date of the act, but which, as in the instant case, had not yet been fully decided (see, Matter of Fetherston v Fetherston, 172 AD2d 831).

In addition, we find that the Supreme Court properly determined that the plaintiff was not entitled to counsel fees. It is well settled that an award of counsel fees lies in the discretion of the court (see, Domestic Relations Law § 237 [a]; OBrien v O’Brien, 66 NY2d 576; Majauskas v Majauskas, 61 NY2d 481). The issue of counsel fees is controlled by the equities and circumstances of each particular case. The determination of the Supreme Court was appropriate based upon the relative merits of the parties’ legal positions and their respective financial positions (see, Hackett v Hackett, 147 AD2d 611; Amodio v Amodio, 122 AD2d 757, affd 70 NY2d 5). Rosenblatt, J. P., Ritter, Copertino and Pizzuto, JJ., concur.

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—In a matrimonial action in which the parties were divorced by a judgment dated December 10, 1979, the plaintiff mother appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 28, 1991, as, after a hearing, (a) directed her to pay child support in the sum of $77 per week, and (b) denied her application for counsel fees.

[256]*256Ordered that the order is affirmed insofar as appealed from, with costs.

The parties were divorced in 1979. The mother was granted custody of the children. In May 1988 the parties’ last unemancipated child went to live with her father, the defendant. By order dated May 16, 1989, custody of that child was transferred to the defendant.

Contrary to the plaintiff’s assertion, we find that the Supreme Court properly determined that the plaintiff should pay $77 per week to the defendant for child support. The defendant’s request for an award of child support was appropriate, since the addition of the child to the father’s household constituted a material change of circumstances (see, Matter of Alice C. v Bernard G. C., 193 AD2d 97; see, Levy v Levy, 143 AD2d 975). Furthermore, the Supreme Court properly applied the Child Support Standards Act (hereinafter CSSA) in determining the amount of child support. It has been recognized that in light of the paramount interests of children, the need for support, and because the CSSA represents important public policy, the CSSA should be applied to matters which were commenced prior to the effective date of the act, but which, as in the instant case, had not yet been fully decided (see, Matter of Fetherston v Fetherston, 172 AD2d 831).

In addition, we find that the Supreme Court properly determined that the plaintiff was not entitled to counsel fees. It is well settled that an award of counsel fees lies in the discretion of the court (see, Domestic Relations Law § 237 [a]; OBrien v O’Brien, 66 NY2d 576; Majauskas v Majauskas, 61 NY2d 481). The issue of counsel fees is controlled by the equities and circumstances of each particular case. The determination of the Supreme Court was appropriate based upon the relative merits of the parties’ legal positions and their respective financial positions (see, Hackett v Hackett, 147 AD2d 611; Amodio v Amodio, 122 AD2d 757, affd 70 NY2d 5). Rosenblatt, J. P., Ritter, Copertino and Pizzuto, JJ., concur.

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Bluebook (online)

198 A.D.2d 255, 603 N.Y.S.2d 872, 1993 N.Y. App. Div. LEXIS 10348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/damato-v-damato-nyappdiv-1993.

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