Proceeding for Support Under Article 4 of Family Court Act, Matter of

• Decision Date: 08 July 1976
• Citation: 87 Misc.2d 547,385 N.Y.S.2d 740
• Parties: . CAROLE K, Petitioner, v. ARNOLD K, Respondent. Family Court, New York City, New York County
• Court: New York Family Court

Page 740

385 N.Y.S.2d 740

87 Misc.2d 547

In the Matter of a PROCEEDING FOR SUPPORT UNDER ARTICLE 4 OF the FAMILY COURT ACT CAROLE K, Petitioner, v. ARNOLD K, Respondent.

Family Court, New York City, New York County.

July 8, 1976.

Lea, Goldberg & Spellun, P.C. by Lola S. Lea, New York City, for petitioner.

Norman Annenberg, New York City, for respondent.

DECISION

NANETTE DEMBITZ, Judge:

Petitioner-mother moves for a rehearing of her motion for an order directing respondent-father's payment of her counsel fees in her proceeding for child support. She emphasizes the fact that her primary source of income consists of gifts from her father, who has given her $45,000 to $65,000 a year annually for a number of years. The standard of living petitioner had established for herself and her children depends on such gifts, and she indicates no intention of changing it or moving from a residence maintained by reliance on them. Accordingly, this source of income must be deemed as stable and predictable as income from earnings, investments, or any other source.

Further, a respondent-father's means have been repeatedly held to include income from all sources; the same reasoning must in the Court's opinion apply to a petitioner-mother's means. The instant petitioner therefore is far from indigent under the Kann-Winter rule. ¹ The difficult question relating to the application for counsel fees is the relevance of the holding in those case to the instant petition for child-support only.

Relevance of Mother's Income to Fee Award

The Kann and Winter decisions indicate that since the award of fees to petitioner's attorney in a matrimonial case is an exception to the usual rule that parties pay their own counsel, the exception is justifiable only if petitioner wife or ex-wife's funds are insufficient for counsel fees. Viewing a child-support proceeding pragmatically, the Kann-Winter reasoning seems applicable to it; for child-support payments in fact benefit a petitioner-custodial parent by lessening her (or his) financial burden to provide for the child's maintenance. And a custodial mother's interest in a proceeding to enforce payments by a respondent-father is highlighted by the rulings that the mother as well as the father bears an obligation for child-support. See prior decision herein (85 Misc.2d 643, 380 N.Y.S.2d 593) and Maderas v. Turner, 50 A.D.2d 770, 377 N.Y.S.2d 56 (1st Dept.).

This the custodial mother's resources should be considered in determining a fee award in a child-support proceeding, is indicated by Eisen v. Eisen, 48 A.D.2d 652, 653, 367 N.Y.S.2d 554, 555. There, while a primary result was an increase in child support, the counsel fee award nevertheless was based on 'the parties' relative circumstances.' People ex rel. HH v. HH, 49 A.D.2d 130, 133, 373 N.Y.S.2d 668, 670, where a fee award was denied to custodian-mother in a custody proceeding, also appears apposite, despite petitioner's argument to the contrary. Since a custody award is based on the best interests of the child, it would seem that the legal services of the custodial mother's attorney were rendered on behalf of children to the same extent as in a child-support proceeding. Compare Matter of Dravecko, 267 N.Y. 180, 182, 196 N.E. 17, 18.

On the other hand, impressive precedents view a child-support proceeding as of legal interest only to the children, who are obviously without means to pay counsel. Thus, Gordon v. Lipshie, 13 N.Y.2d 775, 242 N.Y.S.2d 68, 192 N.E.2d 33, holding that the Family Court Act authorizes an award of counsel fees 'in suitable cases' of petitions for child-support by a divorced wife, indicates that the proceeding is to be viewed as benefitting the child and that counsel fee benefitting the child and that a counsel fee N.Y.2d at p. 776, 242 N.Y.S.2d at p. 68, 192 N.E.2d at p. 34). Again, in Matthews v. Matthews, 18 A.D.2d 830, 831, 237 N.Y.S.2d 659, 660, the Court stated that the legal services in a child-support case are rendered by a custodian-mother's 'attorney to her for the benefit of the children'. And, as petitioner urges, Family Court opinions have taken the view that legal services to a custodian-mother in a child-support case are necessaries for the children for which the father is liable (Winston v. Winston, 84 Misc.2d 60, 374 N.Y.S.2d 994; Kern v. Kern, 65 Misc.2d 765, 319 N.Y.S.2d 178). It appears to work too great a departure from these precedents to consider the mother's resources in relation to her application for counsel fees in a child-support proceeding.

Fee Award

Concluding therefore that the award of a counsel fee seems appropriate, the award requested by petitioner of over $10,000 nevertheless cannot be granted. The services of petitioner's counsel were highly competent, her customary hourly fee is substantial, and she spent may hours on this litigation. Nevertheless, it appears that respondent's means as revealed at trial were not very much greater than those he asserted pre-trial. Thus, petitioner's counsel was on notice of the possibility that respondent was suffering from reduced means and substantial debts. The Court must of course in a fee award take into account respondent's means. See, e.g., Alwardt v. Alwardt, 41 A.D.2d 592, 340 N.Y.S.2d 209; Sullivan v. Sullivan, 55 Misc.2d 691, 286 N.Y.S.2d 346, aff'd. 29 A.D.2d 739, 287 N.Y.S.2d 353.

In the Court's discretion, a counsel fee of $950. is awarded forthwith, and if respondent's income tax return for the year 1975 or 1976 shows a taxable income of $50,000 or over, an additional $3,000 shall be paid within three months of the filing of such return. The Court rejects, however, petitioner's application for an escalating support order dependent an respondent's increases in income, although it seems true, as she...