Sampson v. Glazer

• Court: New York Supreme Court Appellate Division
• Citation: 486 N.Y.S.2d 354,109 A.D.2d 831
• Parties: Donna SAMPSON, Respondent, v. Philip L. GLAZER, Appellant.
• Decision Date: 18 March 1985

Page 354

486 N.Y.S.2d 354

109 A.D.2d 831

Donna SAMPSON, Respondent, v. Philip L. GLAZER, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 18, 1985.

Bender & Bodnar, White Plains (Susan L. Bender, White Plains, of counsel), for appellant.

Zimmer & Yaker, New York City (Alice Yaker, New York City, of counsel), for respondent.

Before MOLLEN, P.J., and TITONE, LAZER and THOMPSON, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to article 4 of the Family Court Act for upward modification of child support, the appeal is from an order of the Family Court, Rockland County, dated June 1, 1983, which denied appellant's application for counsel fees. 119 Misc.2d 484, 463 N.Y.S.2d 166.

Order affirmed, with costs.

In a child support proceeding brought pursuant to article 4 of the Family Court Act, the court, in its discretion, may award counsel fees to the attorney representing the person who is claiming a right to support on behalf of the child (Family Ct. Act § 438; Carter v. Carter, 65 A.D.2d 765, 410 N.Y.S.2d 119; Matter of Carole K. v. Arnold K., 87 Misc.2d 547, 385 N.Y.S.2d 740). As with awards of counsel fees made pursuant to Domestic Relations Law § 237(b), the court will base its decision primarily upon both parties' ability to pay, the nature and extent of the services required to deal with the support dispute, and the reasonableness of their performance under the circumstances (Matter of Barnes v. Barnes, 54 A.D.2d 963, 389 N.Y.S.2d 112; McCann v. Guterl, 100 A.D.2d 577, 473 N.Y.S.2d 511). Under appropriate circumstances, to be determined on a case by case basis, the court may consider whether the more financially secure litigant is, in fact, merely waging a campaign of legal harassment against the more needy party (see Ardito v. Ardito, 97 A.D.2d 830, 469 N.Y.S.2d 13).

In the instant case, appellant was not acting to protect the child's right to support and accordingly may not recover counsel fees. In any event, our review of the facts at bar indicates that appellant has failed to establish that he is financially hardpressed and that petitioner is better able to pay his legal fees. Moreover, we find that petitioner's actions do not constitute a campaign of legal harassment. Petitioner appeared pro se throughout the Family Court proceedings. She voluntarily withdrew her first petition for upward modification of child support, brought on behalf of her infant daughter. She apparently brought the instant proceeding in...