Weinberg v. Weinberg

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore GIBBONS
Citation464 N.Y.S.2d 20,95 A.D.2d 828
PartiesJean WEINBERG, Respondent, v. Benjamin WEINBERG, Appellant.
Decision Date20 June 1983

Page 20

464 N.Y.S.2d 20
95 A.D.2d 828
Jean WEINBERG, Respondent,
v.
Benjamin WEINBERG, Appellant.
Supreme Court, Appellate Division,
Second Department.
June 20, 1983.

Harry Salvan, New York City, for appellant.

Goldman & Karp, P.C., New York City (George Karp, New York City, of counsel), for respondent.

Before GIBBONS, J.P., and BRACKEN, BROWN and NIEHOFF, JJ.

Page 21

MEMORANDUM BY THE COURT.

In a support enforcement proceeding, the husband appeals from (1) an order of the Family Court, Queens County, dated May 6, 1982, which, inter alia, awarded the petitioner wife judgment for $1,035 in arrears plus $1,000 in counsel fees, and (2) an order and judgment (one paper) of the same court dated May 20, 1982, which denied his application for a downward modification of support and directed entry of a money judgment in favor of the petitioner.

Appeal from the order dated May 6, 1982 dismissed except insofar as it granted counsel fees to the petitioner (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).

So much of the same order as awarded $1,000 in counsel fees reversed and matter remitted to the Family Court, Queens County, for a hearing in accordance herewith.

Order and judgment dated May 20, 1982, affirmed.

Petitioner is awarded one bill of costs.

In the case sub judice, it is clear that the appellant husband's financial difficulties are attributable to debts incurred because of his gambling activities. Such conduct does not justify a downward modification of support (see Matter of Doscher v. Doscher, 80 A.D.2d 945, 438 N.Y.S.2d 28, affd. 54 N.Y.2d 655, 656, 442 N.Y.S.2d 507, 425 N.E.2d 896). However, the court's award of counsel fees to the wife on the basis of an affirmation alone was improper. When challenged, counsel fees must be proved in an adversarial atmosphere where, upon the presentation of testimony, the opposing parties may assert the right to cross-examine (Badenhop v. Badenhop, 84 A.D.2d 773, 444 N.Y.S.2d 111).

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23 practice notes
  • Price v. Price
    • United States
    • New York Supreme Court Appellate Division
    • 9 Diciembre 1985
    ...[attorney's] claims relative to time and value" (see, Sadofsky v. Sadofsky, 78 A.D.2d 520, 521, 431 N.Y.S.2d 594; Weinberg v. Weinberg, 95 A.D.2d 828, 829, 464 N.Y.S.2d 20). An award of attorney's fees solely on the basis of affirmations is improper in the absence of a stipulation regarding......
  • Dayan v. Dayan
    • United States
    • United States State Supreme Court (New York)
    • 30 Noviembre 2017
    ...atmosphere where, upon presentation of testimony, the opposing parties may assert the right to cross-examine" ( Weinberg v. Weinberg, 95 A.D.2d 828, 829, 464 N.Y.S.2d 20 [2d Dept., 1983] ). "A hearing on attorney's fees is particularly warranted where the record before the Court is patently......
  • DiVittorio v. DiVittorio, No. 1
    • United States
    • New York Supreme Court Appellate Division
    • 7 Mayo 2001
    ...after a hearing (see, Matter of Lenczycki v Alexander, 209 A.D.2d 480; Silverman v Silverman, 193 A.D.2d 595; Weinberg v Weinberg, 95 A.D.2d 828; Sadofsky v Sadofsky, 78 A.D.2d 520). To the extent that the father was entitled to a hearing as to the value and extent of the Page 865 legal ser......
  • Joan Marie D. v. Harold G.
    • United States
    • New York Supreme Court Appellate Division
    • 6 Noviembre 1989
    ...v. Windsor Plaza Co., 128 A.D.2d 425, 426, 512 N.Y.S.2d 811; Price v. Price, 115 A.D.2d 530, 496 N.Y.S.2d 464; Weinberg v. Weinberg, 95 A.D.2d 828, 464 N.Y.S.2d...
  • Request a trial to view additional results
23 cases
  • Price v. Price
    • United States
    • New York Supreme Court Appellate Division
    • 9 Diciembre 1985
    ...[attorney's] claims relative to time and value" (see, Sadofsky v. Sadofsky, 78 A.D.2d 520, 521, 431 N.Y.S.2d 594; Weinberg v. Weinberg, 95 A.D.2d 828, 829, 464 N.Y.S.2d 20). An award of attorney's fees solely on the basis of affirmations is improper in the absence of a stipulation regarding......
  • Dayan v. Dayan
    • United States
    • United States State Supreme Court (New York)
    • 30 Noviembre 2017
    ...atmosphere where, upon presentation of testimony, the opposing parties may assert the right to cross-examine" ( Weinberg v. Weinberg, 95 A.D.2d 828, 829, 464 N.Y.S.2d 20 [2d Dept., 1983] ). "A hearing on attorney's fees is particularly warranted where the record before the Court is patently......
  • Petritis v. Petritis
    • United States
    • New York Supreme Court Appellate Division
    • 15 Junio 1987
    ...in the absense of a stipulation regarding the amount due (see, Price v. Price, 115 A.D.2d 530, 496 N.Y.S.2d 464; Weinberg v. Weinberg, 95 A.D.2d 828, 829, 464 N.Y.S.2d 20). Rather, an evidentiary hearing is required to examine the financial conditions of the parties and to test in a meaning......
  • DiVittorio v. DiVittorio, 1
    • United States
    • New York Supreme Court Appellate Division
    • 7 Mayo 2001
    ...after a hearing (see, Matter of Lenczycki v Alexander, 209 A.D.2d 480; Silverman v Silverman, 193 A.D.2d 595; Weinberg v Weinberg, 95 A.D.2d 828; Sadofsky v Sadofsky, 78 A.D.2d 520). To the extent that the father was entitled to a hearing as to the value and extent of the Page 865 legal ser......
  • Request a trial to view additional results

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