People ex rel. KM v. SF
| Decision Date | 04 February 2011 |
| Citation | 31 Misc.3d 505,917 N.Y.S.2d 827 |
| Parties | PEOPLE ex rel. KM et al., Petitioners, v. SF et al., Respondents. |
| Court | New York Supreme Court |
Marilyn Chinitz, Blank Rome, New York, Attorney for petitioners.
Luis Penichet, The Penichet Law Firm, White Plains, Attorney for respondent father.
Bonnie Rabin, Cohen, Rabin Stine Schumann LLP, New York, Attorney for respondent paternal grandparents.
Jo Ann Douglas, Jane Friedson, New York, Attorneys for children.
The core issue in this motion is whether the court may order grandparents who are seeking visitation with their grandchildren to pay the compensation of attorneys appointed by the court to represent those children. As discussed more fully below, the court finds that it has the authority to do so, pursuant to its parens patriae powers.
In this special proceeding, petitioners 1 seek visitation with their grandchildren (the Children, or individually, the Child). Petitioners' daughter, and the mother of the Children (Mother), died. The respondents are the Children's father (Father) and his parents, the Children's paternal grandparents. The Children currently residewith their Father at the home of their paternal grandparents. In a related proceeding, the Children's maternal aunt and uncle seek custody of the Children pursuant to Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976].
At the initial conference in this proceeding, we discussed the appointment of counsel for the Children. The attorney appointed for the Children in the related proceeding proposed that I appoint her to represent them in this proceeding as well. The respondents in this proceeding (who are parties in the related proceeding) joined in that request. The petitioners in this proceeding opposed that application, but did not argue that it was unnecessary or inappropriate to appoint counsel for the Children. The respondents in this proceeding then raised concerns about their financial ability to contribute to the compensation and expenses of the Children's attorneys. The petitioners in this proceeding neither raised any similar concern, nor questioned the court's authority to direct them to contribute to the compensation of the Children's counsel. At the conclusion of the conference, I directed that the parties submit memoranda addressing, inter alia, whether I should appoint separate counsel for each Child, and how I should allocate the compensation of the attorney or attorneys for the Children. I also gave the parties leave to submit net worth statements, if they wished me to consider them.
Petitioners submitted a memorandum in which they opposed the appointment of an attorney for the Children, and argued in the alternative that, if the court elected to appoint counsel for the Children, the court should not appoint the same attorney as in the related proceeding. Petitioners' memorandum did not argue that the court lacked authority to require them to contribute to the compensation of the Children's counsel, and, in fact, did not address the issue of the compensation for the Children's counsel at all. Petitioners also did not submit a net worth statement. Respondents submitted both memoranda and statements of net worth. After reviewing the memoranda of the parties and the net worth statements submitted by respondents, I issued orders on August 6, 2010 appointing a separate attorney for each Child in this proceeding, and directing that petitioners pay 100% of the retainers and all subsequent compensation of the attorneys for the Children in this proceeding.
In this motion, petitioners seek an order granting them leave to reargue this court's orders dated August 6, 2010, and, upon reargument: 1) modifying those orders to delete the provision requiring petitioners to pay all of the compensation and disbursements of the attorneys for the Children, and directing that those expenses be paid entirely by respondent Father; or, alternatively, 2) directing that the compensation of the attorneys for the Children be paid with public funds; or, alternatively, 3) vacating the orders appointing attorneys for the Children. Respondents and the attorneys for the Children oppose the motion.
Petitioners argue that the court overlooked or misapprehended the relevant law when it directed them to pay the compensation of the Children's attorneys because, they argue, the court has no authority to direct non-parents, including grandparents, to pay the fees of a court-appointed attorney for a child. They further argue that the court may impose the obligation to pay a child's attorney only on the child's parent, on the theory that compensation for a child's attorney is a necessary, which only a parent has a duty to provide ( see Plovnick v. Klinger, 10 A.D.3d 84, 781 N.Y.S.2d 360 [2nd Dept. 2004] ). In addition, they argue that they have no statutory duty to support their grandchildren.Finally, petitioners suggest that, if the Father maintains that he is unable to pay the fees, then the court should direct payment of the fees of the Children's attorneys from public funds, or, alternatively, vacate the order appointing the Children's attorneys.
Respondents and the Children's Attorneys oppose the motion for three reasons. First, they argue that the Supreme Court has the authority to appoint an attorney for the child in a grandparent visitation case, and require the petitioning grandparent to pay all or part of the fees of the child's attorney. They argue that a contrary rule would lead to the anomalous result that a grandparent could "come into court to challenge a parent's right to decide who can spend time with his or her children, force litigation on the parent, do so without even a prior effort to effectuate this on consent, and then demand that the parent pay for all the costs of defending his or her right" (Affirmation of JoAnn Douglas, ¶ 15). Second, they argue that fairness requires that the Children have adequately paid counsel. Third, they argue that requiring respondent Father to pay 100% of the fees would impose a tremendous financial hardship on him and his parents.
As an initial matter, the Court must deny the petitioners' motion to reargue because they failed to raise previously the legal arguments which they now ask the court to adopt. A motion for reargument is not an appropriate vehicle to advance arguments different from those tendered on the original application ( DeSoignies v. Cornasesk House Tenants' Corp., 21 A.D.3d 715, 800 N.Y.S.2d 679 [1st Dept. 2005]; Rubinstein v. Goldman, 225 A.D.2d 328, 638 N.Y.S.2d 469 [1st Dept. 1996]; Mariani v. Dyer, 193 A.D.2d 456, 458, 597 N.Y.S.2d 358 [1st Dept. 1993]; Foley v. Roche, 68 A.D.2d 558, 568, 418 N.Y.S.2d 588 [1st Dept. 1979]; Simpson v. Loehmann, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319 [1968] ). At no time did the petitioners take the position that the court lacked authority to require them to contribute to the compensation of the Children's attorneys. Consequently, the court must deny petitioners' motion to reargue.
Even if there were no procedural bar to the motion, I would deny petitioners' motion because the court has authority to direct petitioners to pay the fees of the Children's attorneys, so I neither overlooked nor misapprehended the relevant law.
Petitioners argue that there is no statutory basis for the court to order them to pay the fees of the Children's attorneys, and that the court should not infer that it has the authority to require them to do so. It is true that there is no statute which specifically authorizes a court to direct a grandparent to pay the fees of the child's attorney in a proceeding brought under DRL Section 72. In fact, there is no explicit statutory authority to direct a parent to pay for the child's attorney in any custody or visitation proceeding, except for subsection (3) of Judiciary Law Section 35, which applies only where the parents are preliminarily determined by the court to be indigent. That subsection permits the imposition of attorneys' fees on a parent where the court has appointed an attorney for the child, and later determines that the parent is not indigent (Judiciary Law § 35[3] ). Neither that subsection of Judiciary Law Section 35, nor any other statute, explicitly provides for the imposition of the costs of the child's counsel on an unwilling parent in any other situation.
Yet petitioners argue that it is "clear that this Court may direct a parent to pay the fees of an attorney appointed to represent that parent's child pursuant to Judiciary Law § 35(3)," citingStephens v. Stephens, 249 A.D.2d 191, 671 N.Y.S.2d 268 [1st Dept. 1998] and Rotta v. Rotta, 233 A.D.2d 152, 649 N.Y.S.2d 148 [1st Dept. 1996] 2 (Affirmation of Petitioner's Attorney at ¶ 8).
A close examination of the cases cited by petitioners' counsel is instructive. In Stephens, the Appellate Division cited only to Rotta as authority for its ruling that the trial court properly exercised its discretion when it appointed a Law Guardian 3 for the parties' children, and directed the parents to pay the Law Guardian's fees. In Rotta, the defendant husband appealed from a trial court order directing him to pay half of the Law Guardian's fees. The Appellate Division found that the fee order was made pursuant to Judiciary Law § 35(3) and was thus unreviewable, citing Matter of Director of Assigned Counsel Plan of City of N.Y. [Bodek], 87 N.Y.2d 191, 638 N.Y.S.2d 415, 661 N.E.2d 988 [1995] and Matter of Werfel v. Agresta, 36 N.Y.2d 624, 370 N.Y.S.2d 881, 331 N.E.2d 668 [1975] for the proposition that "such orders are essentially administrative in nature, and are therefore not amenable to judicial review." It provided no further explanation of this reasoning. For that, we must turn to Levenson v. Lippman, 4 N.Y.3d 280, 794 N.Y.S.2d 276, 827 N.E.2d 259 [2005], where the Court of Appeals explained that the counsel payment orders at issue in Bodek and Werfel were subject to...
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Kelly G. v. Circe H.
...authority to direct petitioner to pay the costs associated with the attorney for the child (see People ex rel. KM v. SF, 31 Misc.3d 505, 511–512, 917 N.Y.S.2d 827 [Sup. Ct., N.Y. County 2011] ). The function of the neutral forensic evaluator is to assist the court in deciding what is in the......