Ossakow v. Ossakow

52 A.D.2d 956, 383 N.Y.S.2d 630, 1976 N.Y. App. Div. LEXIS 12819

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 1976
• Status: Published

Opinion

In a support proceeding, the husband appeals from so much of an order of the Family Court, Kings County, dated October 14, 1975, and made after a hearing, as (1) directed him to pay (a) support in the amount of $85 per week and (b) a counsel fee of $3,500 and (2) fixed arrears at $5,720 as of October 10, 1975. Order modified by deleting so much thereof as fixed the arrears. As so modified, order affirmed insofar as appealed from, without costs or disbursements, and proceeding remanded to the Family Court for a new hearing as to the amount of arrears and for the entry of an appropriate order thereon. It is clear that the Family Court Judge considered both parties’ respective means and earning power, as well as the marital standard of living, in determining that petitioner was entitled to $85 per week in support payments (see Hickland v Hickland, 39 NY2d 1). The arrears, as computed by the Office of Probation, were only $4,105 as of October 17, 1975. However, there is no proof in the record on this appeal to indicate whether that amount, or the amount ultimately fixed by the Family Court as arrears, is correct. Accordingly, the issue of arrears requires a new factual determination. The Family Court’s award of an attorney’s fee was properly based upon the attorney’s affidavit of services and the circumstances of the case; it was within the court’s discretion and was not excessive (see Matter of Hahn v Hahn, 78 Misc 2d 585), Cohalan, Acting P. J., Margett, Damiani, Rabin and Shapiro, JJ., concur.