Weinstein v. Weinstein

305 A.D.2d 158, 758 N.Y.S.2d 62, 2003 N.Y. App. Div. LEXIS 4938

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 2003
• Status: Published

Opinion

Judgment of divorce, Supreme Court, New York County (Joan Lobis, J.), entered November 7, 2002, which, to the extent appealed from as limited by the brief, brings up for review orders, same court and Justice, entered on or about April 25, 2002 and September 19, 2002, respectively, denying defendant’s motions for reimbursement from plaintiff for the payment of the substituted law guardian’s legal fees and costs, unanimously affirmed, without costs. Appeals from the April 25, 2002 and September 19, 2002 orders unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

The court’s initial order appointing a law guardian to represent the parties’ children and directing that the parties share the cost of the court-appointed law guardian equally was superseded by an order substituting for the court-appointed law guardian a law guardian who had been retained by the children’s paternal grandfather. The substitution was made upon the grandfather’s sworn statement that he would pay the substituted law guardian’s retainer fee and all of his future fees, which were substantially higher than those of the court-appointed law guardian. Inasmuch as the substituted law guardian was independently retained by the children’s paternal grandfather and defendant was estopped from relying on his father’s contradictory postsubstitution statements alleging that his payments to the substituted law guardian were made only as a loan on his son’s behalf, there is insufficient evidence of any loan, much less one that plaintiff was bound to repay (see Gelb v Brown, 163 AD2d 189, 193-194 [1990]). Concur — Tom, J.P., Saxe, Ellerin, Lerner and Gonzalez, JJ.