Matter of Catto v. Howell

2016 NY Slip Op 8072, 144 A.D.3d 1146, 42 N.Y.S.3d 307

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 2016
• Docket: 2015-10067
• Status: Published

Opinion

Appeal from an order of the Family Court, Westchester County (Gail B. Rice, J.), dated October 2, 2015. The order, insofar as appealed from, without a hearing, denied the mother’s motion for an award of an attorney’s fee in the sum of $33,471.32.

Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and the mother’s motion for an award of an attorney’s fee in the sum of $33,471.32, is granted.

The parties have three children together. In 2015, after they reached a settlement resolving several petitions, inter alia, to modify an existing court-sanctioned custody arrangement, the mother moved for an award of an attorney’s fee in the sum of $33,471.32. The Family Court denied the motion, and the mother appeals.

“The Family Court has the authority to award an attorney’s fee in custody proceedings when warranted under the circumstances of the case” (Matter of DeCillis v DeCillis, 137 AD3d 1122, 1123 [2016]; see Family Ct Act § 651 [b]; Domestic Relations Law § 237 [b]; Matter of Feng Lucy Luo v Yang, 104 AD3d 852, 852 [2013]). “ ‘The award of reasonable counsel fees is a matter within the sound discretion of the trial court’ ” (Matter of Feng Lucy Luo v Yang, 104 AD3d at 852, quoting Walker v Walker, 255 AD2d 375, 376 [1998]). “Any such award ‘is to be based on the financial circumstances of the parties and the circumstances of the case as a whole, which may include the relative merit of the parties’ positions, but should not be predicated solely on who won and who lost’ ” (Matter of Feng Lucy Luo v Yang, 104 AD3d at 852, quoting Matter of O’Neil v O’Neil, 193 AD2d 16, 20 [1993]; see Matter of Dempsey v Dempsey, 78 AD3d 1179 [2010]; Matter of Sullivan v Sullivan, 40 AD3d 865, 867 [2007]).

Here, the Family Court improvidently exercised its discretion in denying the mother’s motion for an award of an attorney’s fee (see Matter of DeCillis v DeCillis, 137 AD3d 1122 [2016]; Matter of Liebenstein v Irani, 125 AD3d 970 [2015]; Matter of Feng Lucy Luo v Yang, 104 AD3d 852 [2013]). Given the relative merits of the parties’ positions, and their respective financial circumstances, an award of an attorney’s fee to the mother in the sum of $33,471.32 is appropriate (see Matter of Liebenstein v Irani, 125 AD3d 970 [2015]).

The mother’s contention regarding the allocation of responsibility for the fee for the attorney for the child is not properly before this Court, as that issue was not decided in the order appealed from (see Matter of Wright v McIntosh, 125 AD3d 679, 681 [2015]).

Leventhal, J.P., Chambers, Austin and LaSalle, JJ., concur.