Ahearn v. Ahearn

• Decision Date: 28 January 1957
• Citation: 4 Misc.2d 1043,158 N.Y.S.2d 848
• Parties: Patricia AHEARN, Petitioner, v. David E. AHEARN, Respondent.
• Court: New York City Court

Page 848

158 N.Y.S.2d 848

4 Misc.2d 1043

Patricia AHEARN, Petitioner, v. David E. AHEARN, Respondent.

Domestic Relations Court of the City of New York, Family

Court Division, Queens County.

Jan. 28, 1957.

Hyman Bravin, New York City, for petitioner.

Taks & Bishop, Jamaica, Sydney H. Bishop, Jamaica, of counsel, for respondent.

HOROWITZ, Justice.

This is an application by petitioner's attorney for an allowance of counsel fees pursuant to Section 131 of the Domestic Relations Court Act. From the facts herein it appears that petitioner-wife instituted a proceeding against the respondent-husband for support for herself and their child. After a full trial of the issues, the Court on September 25, 1956 entered an order of support on a means basis for petitioner and the child. At the conclusion of that proceeding petitioner's attorney made an application to the Court for an allowance of counsel fees and the same was granted and an order accordingly entered.

On December 7, 1956 respondent applied to the Court for a rehearing or modification of the support order originally made. The Court denied the motion for a rehearing of the entire proceeding but granted a hearing on the question of modification. This hearing was duly held and several hours of testimony taken in behalf of both parties. The amount of the original order was reduced by the Court with specific allocation being made for payment of the amount of support so ordered separately to the petitioner and to the child.

The present application by petitioner's attorney for an allowance of counsel fees pursuant to Section 131 of the Domestic Relations Court Act is predicated on legal services rendered to petitioner in opposing respondent's application for modification of the original support order.

A support order in the Domestic Relations Court, Family Division, is never permanent but is always subject to modification on proof of changed circumstances, requiring an adjustment of an existing support order.

Under subdivision (16) of Section 92 of the Domestic Relations Court Act, the Family Division of the Court has the power to modify, change or vacate any order that it makes as justice may require and as the premises warrant. It may change its original support order to meet new conditions. Vendetti v. Vendetti, Dom.Rel., 31 N.Y.S.2d 487, 495; Fenelle v. Fenelle, 183 Misc. 123, 46 N.Y.S.2d 776, 778. That was the disposition of the Court in the instant case.

Until the enactment of Chapter 603 of the Laws of 1956 effective September 1, 1956 amending Section 131 of the Domestic Relations Court Act services performed by attorneys in a Family Court proceeding for the support of a wife and children could only be recovered in a common law action on the theory of 'necessaries'. Rothstein v. Erickson, 153 Misc. 647, 276 N.Y.S. 539, 540; Robinson v. Roberts, 156 Misc. 37, 281 N.Y.S. 23; Goldberg v. Keller, 236 App.Div. 541, 260 N.Y.S. 65; Sheer v. Foley, 145 Misc. 819, 260 N.Y.S. 252.

The law in this State appears to be well settled that an independent action for legal services rendered in behalf of a wife for her support and the support of a child or children of the marriage is maintainable on the theory of 'necessaries'; and that such an action will also lie to resist a husband's efforts to modify and reduce an order of support previously made in the Family Court.

The Domestic Relations Court of the City of New York is a 'tribunal of limited jurisdiction', and it cannot assume powers not specifically granted to it under the Domestic Relations Court Act. Singer v. Singer, 177 Misc. 76, 29 N.Y.S.2d 1007.

Section 131 of the Domestic Relations Court Act as amended confers a remedy to counsel not heretofore existing. Prior to its enactment the only reference to counsel in the Domestic Relations Court Act were the provisions authorizing the parties to be...