Van Horn v. Dahoda

272 A.D.2d 791, 708 N.Y.S.2d 516, 2000 N.Y. App. Div. LEXIS 5961

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 2000
• Status: Published

Opinion

Peters, J.

Appeal from an order of the Family Court of Saratoga County (Hall, J.), entered October 8, 1998, which, in a proceeding pursuant to Family Court Act article 4, partially granted petitioner’s cross motion for counsel fees.

Petitioner and respondent have been embroiled in Family Court proceedings involving a series of petitions and cross petitions seeking modification of visitation with their child and charging respondent with failing to comply with a prior court order. When respondent moved for a protective order striking petitioner’s discovery demands, petitioner cross-moved for an award of counsel fees in the amount of $3,578.50, representing the amount incurred as a result of respondent’s failure to respond to the discovery demands and his failure to comply with the prior court order. Thereafter, the parties entered into an open-court stipulation settling all pending matters with the exception of counsel fees, following which Family Court awarded petitioner counsel fees in the amount of $1,560. Respondent appeals.

We are unpersuaded by respondent’s contention that Family Court erred in determining the issue of counsel fees without first conducting a hearing. By failing to either request a hearing on petitioner’s cross motion for counsel fees or to object when Family Court indicated that the matter would be decided on the papers submitted, respondent waived his right to a hearing on this issue (see, Stricos v Stricos, 263 AD2d 659, 661-662; Hapeman v Hapeman, 229 AD2d 807, 811; Matter of Zirkand v Zirkand, 218 AD2d 745, 746; Matter of Kriete v Kriete, 194 AD2d 676).

Similarly unavailing is respondent’s assertion that the counsel fee award was improper because Family Court failed to consider the parties’ disparate financial circumstances when fashioning the award. Family Court appropriately considered the relevant and appropriate factors including the respective income of the parties, the nature and extent of the services rendered, the complexity of the issues involved and the result achieved (see, DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881; Matter of Ballard v Davis, 259 AD2d 881, 885, lv denied 94 NY2d 751; Jurs v Jurs, 191 AD2d 564). Taking into account these various factors and the affidavit of petitioner’s attorney which sufficiently detailed the fees charged, we find that Family Court did not abuse its discretion by granting petitioner’s cross motion to the extent of awarding her $1,560 in counsel fees (see, Matter of Kemenash v McIntyre, 205 AD2d 898, 899; Matter of McCullough v Falardeau, 184 AD2d 989).

Cardona, P. J., Mercure, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, without costs.