Feinstein v. Merdinger

Appellate Division of the Supreme Court of New York

Feinstein v. Merdinger

305 A.D.2d 115, 762 N.Y.S.2d 491, 2003 N.Y. App. Div. LEXIS 4614

Appellate Division of the Supreme Court of the State of New York·Decided May 1, 2003·Published·Cited by 7 cases

Opinion

Order, Supreme Court, New York County (Maijory Fields, J.), entered May 31, 2001, which, in a proceeding seeking modification of the child support, maintenance and custody provisions contained in the parties’ judgment of divorce, insofar as appealed from as limited by the briefs, directed respondent ex-husband to pay petitioner ex-wife’s attorney interim counsel fees of $15,000, unanimously affirmed, with costs.

The motion court properly awarded petitioner counsel fees to defend against respondent’s cross motion for a change in custody (Domestic Relations Law § 237 [b]). Petitioner’s submission of a net worth statement in her reply papers, rather than in her moving papers as required by 22 NYCRR 202.16 (k) (2), did not warrant denial of her request for such fees, where the effect of the net worth statement was to confirm a prior recently filed net worth statement prepared for purposes of this proceeding. Indeed, respondent does not argue that the fee award is based on misrepresented or mistaken financial facts, but rather that a previous payment he made was enough to cover petitioner’s legal expenses. Attorneys’ fees, however, can be awarded for prospective work (see Avedon v Avedon, 270 AD2d 65, 66 [2000], lv dismissed 95 NY2d 902 [2000]).

Reargument granted and upon reargument, the decision and order of this Court entered herein on January 14, 2003 (301 AD2d 415) is hereby recalled and vacated. Concur — Nardelli, J.P., Tom, Mazzarelli and Andrias, JJ.

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Order, Supreme Court, New York County (Maijory Fields, J.), entered May 31, 2001, which, in a proceeding seeking modification of the child support, maintenance and custody provisions contained in the parties’ judgment of divorce, insofar as appealed from as limited by the briefs, directed respondent ex-husband to pay petitioner ex-wife’s attorney interim counsel fees of $15,000, unanimously affirmed, with costs.

The motion court properly awarded petitioner counsel fees to defend against respondent’s cross motion for a change in custody (Domestic Relations Law § 237 [b]). Petitioner’s submission of a net worth statement in her reply papers, rather than in her moving papers as required by 22 NYCRR 202.16 (k) (2), did not warrant denial of her request for such fees, where the effect of the net worth statement was to confirm a prior recently filed net worth statement prepared for purposes of this proceeding. Indeed, respondent does not argue that the fee award is based on misrepresented or mistaken financial facts, but rather that a previous payment he made was enough to cover petitioner’s legal expenses. Attorneys’ fees, however, can be awarded for prospective work (see Avedon v Avedon, 270 AD2d 65, 66 [2000], lv dismissed 95 NY2d 902 [2000]).

Reargument granted and upon reargument, the decision and order of this Court entered herein on January 14, 2003 (301 AD2d 415) is hereby recalled and vacated. Concur — Nardelli, J.P., Tom, Mazzarelli and Andrias, JJ.

Feinstein v. Merdinger, 305 A.D.2d 115, 762 N.Y.S.2d 491, 2003 N.Y. App. Div. LEXIS 4614 (N.Y. Ct. App. 2003).

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