Peled v. Kamkahachi

• Decision Date: 19 October 2010
• Citation: 909 N.Y.S.2d 372,77 A.D.3d 837
• Parties: In the Matter of Keren PELED, appellant, v. Sony KAMKAHACHI, respondent.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 372

77 A.D.3d 837

In the Matter of Keren PELED, appellant,

v.Sony KAMKAHACHI, respondent.

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

Oct. 19, 2010.

Bathsheba Hersko, PLLC, Brooklyn, N.Y. (Natan Shmueli of counsel), for appellant.

[909 N.Y.S.2d 373, 77 A.D.3d 837]

In a child support proceeding pursuant to Family Court Act article 4, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Kings County (O'Shea, J.), dated December 10, 2009, as denied her objections to so much of an order of the same court (Mayeri, S.M.) entered June 30, 2009, as, after a hearing, denied her applications for a willfulness hearing, for a determination that the father willfully failed to comply with the child support provisions of the parties' judgment of divorce dated March 4, 2002, and for an award of an attorney's fee.

ORDERED that the order dated December 10, 2009, is affirmed insofar as appealed from, without costs or disbursements.

The Family Court properly denied the mother's objections to so much of an order of the Support Magistrate as denied her applications for a willfulness hearing, a willfulness determination, and an award of an attorney's fee. Since the mother filed a child support enforcement petition, rather than a violation petition pursuant to Family Court Act § 453, the father was not given the notice and warning required under Family Court Act § 453(b) ( see Matter of Rabasco v. Rabasco, 88 A.D.2d 958, 451 N.Y.S.2d 381; Matter of Ellis v. Ellis, 85 A.D.2d 602, 444 N.Y.S.2d 694). Further, the mother was not entitled to an award of an attorney's fee pursuant toFamily Court Act § 438 because she did not seek that relief in her petition ( see Weinberg v. Weinberg, 95 A.D.2d 828, 464 N.Y.S.2d 20; Matter of MacFadden v. Martini, 119 Misc.2d 94, 463 N.Y.S.2d 674).

MASTRO, J.P., COVELLO, DICKERSON and ROMAN, JJ., concur.