Dowd v. White

155 A.D.2d 459, 547 N.Y.S.2d 118, 1989 N.Y. App. Div. LEXIS 13945

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1989
• Status: Published

Opinion

—In two related proceedings pursuant to Family Court Act article 6, inter alia, to modify a child visitation agreement, the father appeals from an order of the Family Court, Dutchess County (Marlow, J.), entered April 8, 1988, which, inter alla, granted the mother’s application for counsel fees.

Ordered that the order is affirmed, without costs or disbursements.

The parties are the parents of a child born on April 20, 1983. Pursuant to a custody and visitation agreement between the parties, the father was granted custody of the child, with visitation rights afforded the mother.

At issue on this appeal is the award of $4,000 in counsel fees to the mother. The award followed the parties’ in-court settlement of the father’s subsequent application to modify the terms of the parties’ prior agreement regarding visitation and the mother’s separate application to hold the father in contempt of court for his failure to comply with prior court orders regarding visitation. The settlement provided, inter alla, that the child’s visitation with the mother would be supervised.

The father’s claim that the award of counsel fees to the wife violated the parties’ prior visitation agreement, which provides in pertinent part that the "prevailing party shall be entitled to reasonable attorney’s fees from the losing party,” is without merit. Prior to accepting the instant settlement, the court informed the father that the settlement would not be considered as an admission of wrongdoing on either party’s part.

It was not error for the court to decline to hold a hearing on the issue of counsel fees. Although the father initially requested a hearing, he ultimately agreed that the issue could be determined on the parties’ supporting papers (see, Kerlinger v Kerlinger, 121 AD2d 691, 692).

Nor did the court err in awarding $4,000 in attorney’s fees to the mother. Many of the prior court proceedings regarding visitation were brought about by the father’s unfounded accusations regarding the mother, or his refusal to comply with various court orders. The court correctly noted that the father’s conduct "bordered on being legally contemptuous” (see generally, Ardito v Ardito, 97 AD2d 830, 831).

We have considered the father’s remaining contentions and find them to be without merit. Mangano, J. P., Thompson, Bracken and Lawrence, JJ., concur.