Bartholomew v. Marano

177 A.D.3d 871

110 N.Y.S.3d 569 (Mem)

In the Matter of Natasha Soo–Hon BARTHOLOMEW, Respondent,

v.Anthony MARANO, Appellant.

2019-00304

Docket No. V-14737-15/15A, 16B

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 4, 2019

November 20, 2019

Friedman & Friedman, PLLC, Garden City, N.Y. (Sari M. Friedman of counsel), for appellant.

Law Offices of Rachel A. Camillery, P.C., West Islip, NY, for respondent.

LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Philip Goglas, J.), dated December 17, 2018. The order granted the mother's motion for an award of attorney's fees in the sum of $36,735.40.

ORDERED that the order is affirmed, with costs.

The parties are the parents of one child, born in 2006. The child has resided with the mother for her entire life. In 2015 and 2016, the parties both moved to modify a prior order of custody and parental access. After a hearing, the Family Court granted the mother's petition to modify the prior order of custody and parental access and dismissed the father's petition, awarding the mother sole legal and residential custody of the child, with parenting time to the father. The order was affirmed on appeal (see Matter of Bartholomew v. Marano, 174 A.D.3d 893, 107 N.Y.S.3d 337 ). In March 2018, the mother moved for an award of attorney's fees in the sum of $36,735.40. The court granted the motion, and the father appeals.

"The Family Court has the authority to award counsel fees in custody proceedings when warranted under the circumstances of the case" ( Matter of Feng Lucy Luo v. Yang, 104 A.D.3d 852, 852, 963 N.Y.S.2d 266 ; see Family Ct Act § 651[b] ; Domestic Relations Law § 237[b] ), which is a matter entrusted to the court's sound discretion (see Matter of Yu Wei v. Mathews, 165 A.D.3d 957, 958, 86 N.Y.S.3d 205 ; Matter of Catto v. Howell, 144 A.D.3d 1146, 1147, 42 N.Y.S.3d 307 ; Matter of Weiss v. Rosenthal, 135 A.D.3d 780, 781, 22 N.Y.S.3d 592 ; Matter of Feng Lucy Luo v. Yang, 104 A.D.3d at 852, 963 N.Y.S.2d 266 ). "Such an award ‘is to be based on the financial circumstances of the parties and the circumstances of the case as a whole, which may include the relative merit of the parties' positions, but should not be predicated solely on who won and who lost’ " ( Matter of Yu Wei v. Mathews, 165 A.D.3d at 958, 86 N.Y.S.3d 205, quoting Matter of O'Neil v. O'Neil, 193 A.D.2d 16, 20, 601 N.Y.S.2d 628 ; see Matter of Catto v. Howell, 144 A.D.3d at 1147, 42 N.Y.S.3d 307 ; Matter of Weiss v. Rosenthal, 135 A.D.3d at 781, 22 N.Y.S.3d 592 ).

Here, the Family Court providently exercised its discretion in granting the mother's motion for an award of attorney's fees. In light of the parties' respective financial circumstances and the relative merit of the parties' positions, the award of attorney's fees to the mother in the sum of $36,735.40 was appropriate (see Matter of Yu Wei v. Mathews, 165 A.D.3d at 958, 86 N.Y.S.3d 205 ; Matter of Catto v. Howell, 144 A.D.3d at 1147, 42 N.Y.S.3d 307 ; Matter of Weiss v. Rosenthal, 135 A.D.3d at 781, 22 N.Y.S.3d 592 ; Matter of Feng Lucy Luo v. Yang, 104 A.D.3d at 852, 963 N.Y.S.2d 266 ; Matter of O'Neil v. O'Neil, 193 A.D.2d at 20, 601 N.Y.S.2d 628 ).

AUSTIN, J.P., DUFFY, BRATHWAITE NELSON and CHRISTOPHER...