Mtr. of Plovnick v. Klinger

• Citation: 10 A.D.3d 84,781 N.Y.S.2d 360,2004 NY Slip Op 06261
• Decision Date: 30 July 2004
• Docket Number: 2003-00661.
• Parties: In the Matter of MIRAL PLOVNICK, Respondent, v. AVI KLINGER, Appellant. BRUCE J. COHEN, Nonparty Respondent.
• Court: New York Supreme Court Appellate Division

10 A.D.3d 84

781 N.Y.S.2d 360

2004 NY Slip Op 06261

In the Matter of MIRAL PLOVNICK, Respondent, v. AVI KLINGER, Appellant. BRUCE J. COHEN, Nonparty Respondent.

2003-00661.

Appellate Division of the Supreme Court of the State of New York, Second Department.

July 30, 2004.

Appeal from an order of the Family Court, Nassau County (Antonio I. Brandveen, J.), dated December 10, 2002 and entered in a child custody proceeding pursuant to Family Court Act article 6. The order granted the court-appointed law guardian's application, following a hearing, to direct respondent father to pay the law guardian's fees in representing the parties' child.

Russell I. Marnell, P.C., East Meadow (Scott R. Schwartz of counsel), for appellant.

Carol Lewisohn, Cedarhurst, for respondent.

Bruce J. Cohen, Jericho, Law Guardian, nonparty-respondent pro se.

OPINION OF THE COURT

KRAUSMAN, J.

Family Court Act § 249 provides the court with the discretion to appoint law guardians to represent children in a variety of proceedings, including custody disputes. Although the appointment of law guardians in custody cases is not mandatory, the practice has become increasingly widespread, as courts seek to ensure that children have independent counsel to represent their interests in proceedings which have a profound impact upon their lives. With the increased frequency of appointments, questions have arisen as to the manner in which law guardians can be compensated. In many instances, attorneys appointed as law guardians in custody matters are selected from an approved panel, and compensated by the State at the rates set forth in Judiciary Law § 35 (3). However, in some instances, where the parents have sufficient financial means, the courts have ordered one parent or both parents to pay the law guardian's fees. On this appeal, the father challenges the Family Court's authority to direct him to pay the fees of the Law Guardian appointed to represent his son, and we are asked to determine whether there is statutory authority to require a parent to pay a law guardian's fees in Family Court custody proceedings. For the reasons which follow, we conclude that the Family Court was authorized to direct the father to pay the Law Guardian's fees, and that the order appealed from should be affirmed.

We note that the order dated December 10, 2002, is not appealable as of right, however, we treat the notice of appeal as an application for leave to appeal and grant leave (see Family Ct Act § 1112).

The parties in this proceeding are the parents of Jordan, who was born on April 26, 1995, and is now nine years old. On April 21, 1999, the parties entered into a stipulation settling their pending divorce action. Under the terms of the stipulation, the mother was awarded custody of Jordan, and the father was granted visitation on alternate weekends, two week night evenings, and specified holidays. The stipulation further required the father, who earned 85% of the couple's income, to pay child support in the sum of $710 per month in accordance with the Child Support Standards Act (see Domestic Relations Law § 240 [1-b]). The stipulation was incorporated, but not merged, in the ensuing judgment of divorce entered September 3, 1999. Both parents remarried shortly after their divorce.

Eleven months later, in August 2000, the father sought a change of custody in the Supreme Court, Nassau County. In November 2000, the Supreme Court issued separate orders directing a hearing on the father's application, and appointing counsel to serve as Jordan's law guardian. The order appointing counsel for Jordan required the father to pay the law guardian's fees at a rate of $150 per hour. Following extensive negotiations, on April 25, 2001, the parties entered into a stipulation in which they agreed to share custody of Jordan. The April 2001 stipulation set forth a comprehensive schedule for dividing physical custody of Jordan between the parents.

Approximately seven months later, in December 2001, the mother filed a pro se petition in the Family Court, Nassau County, seeking sole custody of Jordan. In her petition, the mother alleged that the shared custodial arrangement had proved unworkable because of animosity and a lack of communication between the parties. When the parties made their first appearance in Family Court on the mother's petition, the Family Court questioned the mother about her financial circumstances, and then appointed counsel to represent her. The Family Court also assigned the same attorney who previously represented Jordan in the Supreme Court custody matter as the child's law guardian.

When the Law Guardian made his first appearance before the Family Court in March 2002, he advised the court that when he represented Jordan in the Supreme Court, the father was directed to pay his fees at a rate of $150 per hour. The Law Guardian then requested that he be compensated in the same manner for his representation of Jordan in the Family Court. The father's attorney opposed the application, arguing that the Family Court lacked jurisdiction to require a party to pay a law guardian's fees.

At the Family Court's direction, after making an oral application on the record in open court to direct the father to pay his fees, the Law Guardian submitted a written application to direct the father to pay his fees at the rate of $150 per hour. In support of his application, the Law Guardian argued that Judiciary Law § 35 (3), which primarily governs the compensation of attorneys appointed to represent indigent parties, also permitted the court, in the interest of justice, to require a litigant who was not indigent to pay reasonable fees to a law guardian assigned to represent his or her child. The Law Guardian further argued that the father had sufficient financial means to pay his fees, and that Jordan was "entitled to a law guardian with experience and expertise who should be paid at a commensurate rate for the reasonable value of his services." In opposition, the father argued that a law guardian appointed in Family Court was required to be compensated in accordance with Judiciary Law § 35 (3), and maintained that this provision solely authorized payment to be paid from public funds at a rate which was then $40 per hour for time expended in court, and $25 per hour for time expended out of court. The father further argued, relying upon the decision of the Appellate Division, Fourth Department, in Matter of Lynda A.H. v Diane T.O. (243 AD2d 24 [1998]), that the Family Court, as a court of limited jurisdiction, did not have inherent authority to exercise powers beyond those expressly granted to it by statute.

After conducting a brief hearing, the Family Court granted the Law Guardian's application, and ordered the father to pay his fees at the rate of $150 per hour. The father now appeals, challenging the Family Court's authority to direct a litigant such as himself to pay fees to the law guardian appointed to represent his child. In support of his position, the father continues to rely upon Matter of Lynda A.H. v Diane T.O. (supra). In Matter of Lynda A.H., the Appellate Division, Fourth Department noted that the Family Court is a court of limited jurisdiction which is prohibited from exercising powers beyond those granted to it by statute, and determined that there was no statutory authority to compel parties to pay a law guardian's fees. Although this Court has previously affirmed Family Court orders directing parties to pay a law guardian's fees (see e.g. Rosenbaum v Rosenbaum, 270 AD2d 242 [2000]; Matter of Bungay v Morin, 256 AD2d 462 [1998]; Matter of Department of Social Servs. [Wolfson] v Wolfson, 228 AD2d 594 [1996]), and recently observed that the Family Court has the authority to award a reasonable fee to a law guardian (Matter of Campo v Campo, 3 AD3d 565 [2004]), we now take the opportunity to explain the rationale for our divergence from the Appellate Division, Fourth Department's view.

We begin our analysis of this issue by considering the statutory framework for the appointment and compensation of law guardians in Family Court. Pursuant to Family Court Act § 249, the appointment of law guardians is mandatory in certain proceedings, including juvenile delinquency proceedings, child protective proceedings, and termination of parental rights proceedings. Family Court Act § 249 also gives the Family Court the discretion to appoint law guardians in a variety of other Family Court proceedings. In this regard, Family Court Act § 249 (a) provides that "[i]n any other proceeding in which the court has jurisdiction, the court may appoint a law guardian to represent the child, when, in the opinion of the family court judge, such representation will serve the purposes of this act." While the appointment of a law guardian in a contested custody proceeding is not mandatory, we have recognized that such an appointment is appropriate and helpful to the court, since the law guardian "may act as champion of the child's best interest, as advocate for the child's preferences, as investigator seeking the truth on controverted issues, or may serve to recommend alternatives for the court's consideration" (Koppenhoefer v Koppenhoefer, 159 AD2d 113, 117 [1990]).

The Family Court Act also authorizes the Appellate Divisions of the Supreme Court to designate a panel of qualified attorneys to provide law guardian services (see Family Court Act § 243 [c]). Where such a panel is established, as is the case in this judicial department, Family Court Act § 245 (c) provides that "law guardians shall be compensated and allowed expenses and disbursements in the same amounts established by subdivision three of section thirty-five of the judiciary law." Judiciary Law § 35 governs the "[a]ssignment of counsel to indigent persons," and subdivision (3) of the statute, which establishes the terms of compensation for assigned counsel, was recently amended to increase the compensation...