Walder v. Walder

54 A.D.2d 932, 388 N.Y.S.2d 134, 1976 N.Y. App. Div. LEXIS 14788

Opinion

In an action on a separation agreement, in which the defendant husband moved, inter alia, to change custody, plaintiff appeals, as limited by her notice of appeal and brief, from stated portions of an order of the Supreme Court, Nassau County, dated January 22, 1976, and from the failure of the said order to award her a counsel fee on the motion. Order modified, on the law and the facts, by (1) deleting therefrom the third, fifth, sixth and seventh decretal paragraphs and (2) by adding thereto a provision that defendant pay plaintiff, as a counsel fee, the sum of $1,029 for her defense of the motion. As so modified, order affirmed insofar as appealed from, without costs or disbursements. The four stricken paragraphs constitute unwarranted and gratuitous action by Special Term in granting "relief’ which defendant did not request in his motion papers. Plaintiff is entitled to a counsel fee for her defense of the motion insofar as it sought to change custody, pursuant to subdivision (b) of section 237 of the Domestic Relations Law. Cohalan, Acting P. J., Hargett, Damiani, Rabin and Titone, JJ., concur.