Ranaudo v. Ranaudo

• Decision Date: 16 July 1959
• Citation: 20 Misc.2d 963,190 N.Y.S.2d 285
• Parties: Clara RANAUDO, by her Guardian Ad Litem, Anthony Ignagni, Plaintiff, v. John Anthony RANAUDO, by his Guardian Ad Litem, Lawrence J. Bracken, Defendant.
• Court: New York Supreme Court

Page 285

190 N.Y.S.2d 285

20 Misc.2d 963

Clara RANAUDO, by her Guardian Ad Litem, Anthony Ignagni, Plaintiff, v. John Anthony RANAUDO, by his Guardian Ad Litem, Lawrence J Bracken, Defendant.

Supreme Court, Special Term, Nassau County, Part VII.

July 16, 1959.

Joshua J. Nasaw, New York City, for plaintiff.

Lawrence J. Bracken, Mineola, guardian ad litem, pro se.

BERNARD S. MEYER, Justice.

In this action for annulment on the grounds of nonage, the evidence establishes that when the parties were married and when they separated plaintiff was under the age of 18 years and that defendant's physical assaults upon the plaintiff justify the exercise of the court's discretion in favor of the granting of an annulment. Judgment of annulment is therefore awarded plaintiff, with costs and disbursements, and, under the present circumstances of the parties, support of the plaintiff is fixed at $20 per week.

The testimony of plaintiff and her father and the affidavit of plaintiff's counsel reveal that plaintiff's counsel has received from plaintiff's father, who is also her guardian ad litem, the sum of $400, with the understanding that counsel would apply to the court for a counsel fee and that plaintiff's father would be reimbursed out of any amount awarded to plaintiff for counsel fee. No formal motion for temporary alimony or counsel fee was made until the first day of trial however, and defendant's guardian now objects that under § 1169 of the Civil Practice Act, plaintiff may not be awarded counsel fee, first because funds having been advanced by her father, such an award is not necessary (Antrones v. Antrones, Sup., 58 N.Y.S.2d 241, n. o. r.; cf. Mallah v. Mallah, Sup., 82 N.Y.S.2d 4, n. o. r., where because of such advance, the matter of counsel fee was simply referred to the trial court); and second, because such an award would be for past services.

Plaintiff respondends that because defendant was evading service, she was not able to make any motion earlier than the first day of trial. Since, however, a guardian was appointed five months in advance of trial, it is obvious that a motion could have been made at any time after that date.

The question thus presented is whether in an action for annulment the court has jurisdiction under the Civil Practice Act to make an award of a counsel fee at the end of the trial, including in the award amounts covering services rendered before the application. I hold that that jurisdiction to make such an award exists under the provisions of § 1140-a of the Civil Practice Act, notwithstanding the decisions under C.P.A. § 1169 to the effect that awards for past services cannot be made and notwithstanding the fact that money may have been advanced to the plaintiff wife for the purpose of enabling her to employ counsel.

C.P.A. § 1140-a permits the court in an annulment action to make a direction either in the final judgment or from time to time before final judgment 'for support of the wife by the husband as justice requires'. The words 'as justice requires' used in § 1140-a grant to the court broad discretion. Johnson v. Johnson, 295 N.Y. 477, 68 N.Y.2d 499. While those words do not enlarge the court's power, or authorize it to grant different or greater relief than specified in the statute (Matter of Faehndrich, 2 N.Y.2d 468, 161 N.Y.S.2d 99), they mean 'that there are no 'as a matter of law' requirements one way or the other as to those matters which are to be dealt with in the discretion of the courts, on all the facts.' Vanderbilt v. Vanderbilt, 1 N.Y.2d 342, 153 N.Y.S.2d 1, 9, affirmed 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456.

The question then is does the power to grant 'support' include counsel fee? In permitting prior payment of counsel fees out of a bail fund established in a separation action, the Appellate Division, First Department, in Matter of Kaufman (Gonzalez), 272 App.Div. 323, 70 N.Y.S.2d 736, held:

'While the order of arrest does not mention counsel fees, it specifies 'support.' The word 'support' as used in section 1169 of the Civil Practice Act comprehends 'necessaries' (Dravecka v. Richard, 267 N.Y. 180, 182, 196 N.E. 17, 18) which in turn includes counsel fees (Elder v. Rosenwasser, 238 N.Y. 427, 144 N.E. 669).'

While the rule thus enunciated has been refused application to Personal Property Law, § 49-b, providing for collection of 'support' out of wages (Langus v. Langus, 16 Misc.2d 648, 183 N.Y.S.2d 922), it seems to have been applied under the matrimonial sections of the Civil Practice Act.

Thus, awards of counsel fee have been made under the provisions of § 1140-a, Shaw v. Shaw, Sup., 81 N.Y.S.2d 684, n. o. r.; Richards v. Richards, 2 Misc.2d 596, 153 N.Y.S.2d 979; under the provisions of § 1164, which authorizes a direction in the final judgment in a separation action 'for the support of the plaintiff, as justice requires, having regard to the circumstances of the respective parties.' Kloek v. Kloek, Sup., 54 N.Y.S.2d 543, 544, n. o. r.; and under the provisions of § 1170, which requires that in an action for divorce or separation the court, either in the final judgment or by an order made before final judgment,...