Deem v. Divella-Deem

• Decision Date: 27 January 2021
• Docket Number: Index No. 68616/17,2019-10687
• Citation: 190 A.D.3d 939,136 N.Y.S.3d 906 (Mem)
• Parties: Michael A. DEEM, appellant, v. Lorna M. DIVELLA–DEEM, respondent.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 939

136 N.Y.S.3d 906 (Mem)

Michael A. DEEM, appellant,

v.Lorna M. DIVELLA–DEEM, respondent.

2019-10687

Index No. 68616/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—December 14, 2020

January 27, 2021

Michael A. Deem, Yonkers, NY, appellant pro se.

Arlene Gold Wexler, Mamaroneck, NY, attorney for the children.

MARK C. DILLON, J.P., SYLVIA O. HINDS-RADIX, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Westchester County (Gretchen Walsh, J.), dated March 22, 2019. The order, inter alia, appointed an attorney for the children and directed the parties to pay pro rata shares of the attorney for the children's fees and disbursements, subject to reallocation at trial.

ORDERED that on the Court's own motion, the notice of appeal from the order is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order is affirmed, without costs or disbursements.

The parties were married in 2001. There are two children of the marriage, born in 2005 and 2006, respectively. In November 2017, the plaintiff commenced this action for a divorce and ancillary relief. The defendant counterclaimed for divorce and sought sole custody of the children. Prior to trial, in an order dated March 22, 2019, the Supreme Court appointed an attorney for the children (hereinafter AFC) and directed the parties to pay pro rata shares of the AFC's fees and disbursements, subject to reallocation at trial. The plaintiff appeals.

The plaintiff's challenges to the appointment of an AFC, and to the direction that he pay a pro rata share of the AFC's fees and disbursements, are unpreserved for appellate review (see Ambrose v. Ambrose, 176 A.D.3d 1148, 1151, 113 N.Y.S.3d 106 ). In any event, they are without merit. Representation by an AFC in a contested custody matter "remains the strongly preferred practice" and is within the sound discretion of the trial court ( id. at 1151 [internal quotation marks omitted]; see Family Ct Act § 249[a] ; Judiciary Law § 35[8] ; 22 NYCRR 7.2 [a]; Matter of Quinones v. Quinones, 139 A.D.3d 1072, 1074, 32 N.Y.S.3d 607 ). Given the children's ages and the highly contested nature of this custody matter, the Supreme Court providently exercised its discretion in appointing an AFC to "zealously advocate the child[ren's] position" ( 22 NYCRR 7.2 [d]; see Family Ct Act § 241 ; Silverman v. Silverman, 186 A.D.3d 123, 125, 129 N.Y.S.3d 86 ), and to be present during in camera interviews with the children (see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Masiello v. Milano, 180 A.D.3d 683, 685, 118 N.Y.S.3d 739 ; Matter of Lopez v. Reyes, 171 A.D.3d 1179, 1180–1181, 99 N.Y.S.3d 93 ).

Additionally, "[c]ourts are authorized to direct that a parent who has sufficient financial means to do so pay some or all of the [AFC's] fees" ( Matter of Young v. Young, 161 A.D.3d 1182, 1182, 74 N.Y.S.3d 499 [alterations and internal quotation marks omitted]; see 22 NYCRR 36.4 ; Judiciary Law § 35...