Danto v. Danto

Appellate Division of the Supreme Court of New York

Danto v. Danto

50 A.D.2d 559, 374 N.Y.S.2d 684, 1975 N.Y. App. Div. LEXIS 12304

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

DecidedNovember 3, 1975

StatusPublished

Cited by2 cases

This text of 50 A.D.2d 559 (Danto v. Danto) 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

Danto v. Danto, 50 A.D.2d 559, 374 N.Y.S.2d 684, 1975 N.Y. App. Div. LEXIS 12304 (N.Y. Ct. App. 1975).

Pincite

Opinion

— In a proceeding inter alia to modify the alimony and child support provisions of a Mexican divorce decree, plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County, entered January 16, 1975, as (1) denied that branch of her motion which sought to modify the support provisions of the decree and (2) directed that the defendant husband pay $250 as counsel fees. Order modified, on the law and the facts, by (1) deleting therefrom the provision denying the branch of plaintiff’s motion which sought to modify the child support provisions of the decree, and such branch of the motion is remanded to Special Term for a hearing and new determination in accordance herewith, (2) increasing the counsel fee award to $750, and (3) adding thereto a provision directing that, upon the payment of the increased counsel fee, plaintiff’s attorneys shall return to plaintiff the $500 retainer fee received by them from her. As so modified, order affirmed insofar as appealed from, without costs. The counsel fee provided for herein covers payment for services rendered and to be rendered in this proceeding, including the hearing to be had pursuant hereto. In view of the existence of disputed issues of fact as to defendant’s income, the needs of the children and plaintiff’s income and expenses, it was error for Special Term to deny the motion to increase the amount of child support without ordering a hearing at which sworn testimony and other evidence could have been presented on these issues. Plaintiff has paid her attorneys a retainer fee of $500. Special Term concluded that a fair and reasonable counsel fee was $250. Having regard to the circumstances and abilities of the parties, and the present posture of the case, we hold that the allowance of counsel fees should be fixed at $750 and that plaintiff’s attorneys should return the $500 retainer fee to plaintiff when they receive the counsel fee from defendant. Martuscello, Acting P. J., Cohalan, Christ, Munder and Shapiro, JJ., concur.

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— In a proceeding inter alia to modify the alimony and child support provisions of a Mexican divorce decree, plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County, entered January 16, 1975, as (1) denied that branch of her motion which sought to modify the support provisions of the decree and (2) directed that the defendant husband pay $250 as counsel fees. Order modified, on the law and the facts, by (1) deleting therefrom the provision denying the branch of plaintiff’s motion which sought to modify the child support provisions of the decree, and such branch of the motion is remanded to Special Term for a hearing and new determination in accordance herewith, (2) increasing the counsel fee award to $750, and (3) adding thereto a provision directing that, upon the payment of the increased counsel fee, plaintiff’s attorneys shall return to plaintiff the $500 retainer fee received by them from her. As so modified, order affirmed insofar as appealed from, without costs. The counsel fee provided for herein covers payment for services rendered and to be rendered in this proceeding, including the hearing to be had pursuant hereto. In view of the existence of disputed issues of fact as to defendant’s income, the needs of the children and plaintiff’s income and expenses, it was error for Special Term to deny the motion to increase the amount of child support without ordering a hearing at which sworn testimony and other evidence could have been presented on these issues. Plaintiff has paid her attorneys a retainer fee of $500. Special Term concluded that a fair and reasonable counsel fee was $250. Having regard to the circumstances and abilities of the parties, and the present posture of the case, we hold that the allowance of counsel fees should be fixed at $750 and that plaintiff’s attorneys should return the $500 retainer fee to plaintiff when they receive the counsel fee from defendant. Martuscello, Acting P. J., Cohalan, Christ, Munder and Shapiro, JJ., concur.

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Bluebook (online)

50 A.D.2d 559, 374 N.Y.S.2d 684, 1975 N.Y. App. Div. LEXIS 12304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/danto-v-danto-nyappdiv-1975.

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