Joan Marie D. v. Harold G.
| Decision Date | 06 November 1989 |
| Parties | In the Matter of JOAN MARIE D. (Anonymous), Respondent, v. HAROLD G. (Anonymous), Appellant. |
| Court | New York Supreme Court — Appellate Division |
Belkin Natale & Oxman, Hawthorne (Mitchell P. Lieberman, of counsel), for appellant.
Kevin C. Fogarty, Neponsit, for respondent.
Before MANGANO, J.P., and THOMPSON, BRACKEN and ROSENBLATT, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to Family Court Act article 5, inter alia, to establish paternity the appeal is from a nondispositional order of the Family Court, Dutchess County (Bernhard, J.), dated May 12, 1988, which directed payment of counsel and expert fees to the petitioner.
ORDERED that on the court's own motion, the notice of appeal is treated as an application for leave to appeal, the application is referred to Justice Thompson, and leave to appeal is granted by Justice Thompson (CPLR 5701[b][1]; and it is further,
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Dutchess County, for a hearing and determination with respect to the petitioner's application for counsel and expert fees.
Initially, we note that the appellant failed to raise any issue before the Family Court with respect to the petitioner's failure to submit written objections to the support order of the Hearing Examiner within 30 days of entry thereof in compliance with the requirements of Family Court Act § 439(e). Therefore, the issue raised on appeal with respect thereto may not serve as a basis for reversal (see, Cojal, Inc. v. Davis, 143 A.D.2d 799, 533 N.Y.S.2d 127; Lang v. Cohalan, 127 A.D.2d 17, 21, 513 N.Y.S.2d 726). In any event, we find that the Family Court properly considered the petitioner's application for an award of counsel and experts fees. Although a similar request was presented before the Hearing Examiner no fact findings or conclusions of law were made with respect thereto. Moreover, there is nothing in the record to suggest that the application was considered at the hearing before the Hearing Examiner (see, generally, Matter of Carella v. Collins, 144 A.D.2d 78, 81, 536 N.Y.S.2d 1020). Counsel fees for purposes of this proceeding may be awarded pursuant to Family Court Act § 438, as incident to obtaining support, or pursuant to Family Court Act § 536, as incident to a paternity proceeding.
We find the Family Court erred in relying on the affirmations of counsel...
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Spiegel v. Smith
...Court is raised for the first time on appeal and, therefore, is not preserved for appellate review (see, Matter of Joan Marie D. v. Harold G., 155 A.D.2d 457, 547 N.Y.S.2d 116; Block v. Magee, 146 A.D.2d 730, 537 N.Y.S.2d 215). In any event, the order of the Family Court indicates that the ......
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...an award of counsel fees, "the affirmations of counsel alone will not suffice" to support such award (Matter of Joan Marie D. v. Harold G., 155 A.D.2d 457, 458, 547 N.Y.S.2d 116). "Rather, the reasonable amount and nature of the claimed services must be established at an adversarial hearing......
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...an award of counsel fees, "the affirmations of counsel alone will not suffice" to support such an award (Matter of Joan Marie D. v. Harold G., 155 A.D.2d 457, 458, 547 N.Y.S.2d 116). Rather, the reasonable amount and nature of the services must be established at an adversarial hearing (Matt......
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