Gross v. Gross

73 A.D.2d 949, 423 N.Y.S.2d 955, 1980 N.Y. App. Div. LEXIS 9868

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1980
• Status: Published

Opinion

— In a support proceeding pursuant to article 4 of the Family Court Act, the husband appeals from an order of the Family Court, Queens County, dated June 1, 1978, which, after a hearing, (1) fixed the amount of support for the petitioner wife at $275 per week, and (2) awarded a counsel fee of $2,000. Order modified, on the law, by deleting therefrom the provision awarding a counsel fee of $2,000. As so modified, order affirmed, without costs or disbursements, and proceeding remitted to the Family Court for a hearing on the issue of counsel fees and for a determination de novo as, in the court’s discretion, justice requires, having regard to the economic needs of both parties and the circumstances of the case. In Childs v Childs (69 AD2d 406), applicable to this proceeding since it was pending on March 5, 1979, the date of the decision in Orr v Orr (440 US 268), we held that section 237 of the Domestic Relations Law was constitutional insofar as it authorizes the trial court to award counsel fees to either party on a gender-neutral, needs-only basis. Section 438 of the Family Court Act also provides for counsel fees, based on the same standards as section 237 of the Domestic Relations Law (see Rosner v Rosner, 82 Mise 2d 603), including gender. Therefore, we hold that section 438 of the Family Court Act must be construed on a gender-neutral, needs-only basis. On the record before us, we cannot determine the wife’s ability to pay her attorney because there is no indication of the source of the $7,500 that she had advanced counsel as a retainer, with the understanding that counsel "would return to petitioner the amount advanced pursuant to the court’s directions.” Titone, J. P., Gibbons, Cohalan and Martuscello, JJ., concur.