Gottlieb v. Gottlieb

119 A.D.3d 644, 990 N.Y.S.2d 80

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 9, 2014
• Docket: 2012-11328
• Status: Published

Opinion

In an action for a divorce and ancillary relief, the plaintiff ap peals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Raffaele, J.), entered November 9, 2012, as granted that branch of the defendant’s motion which was, in effect, to direct him to pay counsel fees in the sum of $10,000 to the defendant’s attorney and denied, without a hearing, that branch of his cross motion which was for a downward modification of his child support obligation.

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant’s motion which was, in effect, to direct the plaintiff to pay counsel fees in the sum of $10,000 to the defendant’s attorney, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action for a divorce and ancillary relief. In an order dated October 7, 2011, the Supreme Court granted that branch of the defendant’s motion which was for an award of an attorney’s fee to the extent of awarding her an attorney’s fee in the sum of $10,000. In the order appealed from, which was entered on November 9, 2012, the Supreme Court denied that branch of the defendant’s motion which was to hold the plaintiff in contempt for failing pay the sum of $10,000 to the defendant’s attorney as required by the order dated October 7, 2011, but granted that branch of the defendant’s motion which was, in effect, to direct the plaintiff to pay the sum of $10,000 to the defendant’s attorney. In a decision and order dated December 5, 2012, this Court reversed the order dated October 7, 2011, insofar as appealed from, and denied, in its entirety, that branch of the defendant’s motion which was for an award of an attorney’s fee (see Gottlieb v Gottlieb, 101 AD3d 678, 679 [2012]). Since the portion of the order appealed from granting the branch of the defendant’s motion which was, in effect, to direct the plaintiff to pay the sum of $10,000 to the defendant’s attorney was premised on the portion of the order dated October 7, 2011, that has since been reversed by this Court, we modify the order appealed from and deny this branch of the defendant’s motion.

The Supreme Court properly denied, without a hearing, that branch of the plaintiffs cross motion which was for a downward modification of his child support obligation. The plaintiff submitted no evidence that there was a substantial change in circumstances between the time of the original child support award and the time of his application for a downward modification (see Matter of Signorile v Kaminski, 116 AD3d 961 [2014]; Reback v Reback, 93 AD3d 652, 652-653 [2012]; Cervone v Cervone, 44 AD3d 985 [2007]).

Eng, EJ., Leventhal, Lott and Roman, JJ., concur.