Catto v. Howell

144 A.D.3d 1146

42 N.Y.S.3d 307

2016 N.Y. Slip Op. 08072

In the Matter of Charlotte CATTO, appellant,

v.Gregory HOWELL, respondent.

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

Nov. 30, 2016.

Marcia E. Kusnetz, P.C., Rye Brook, N.Y., for appellant.

Helene M. Selznick, Somers, N.Y., for respondent.

JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and HECTOR D. LaSALLE, JJ.

Appeal from an order of the Family Court, Westchester County (Gail B. Rice, J.), dated October 2, 2015. The order, insofar as appealed from, without a hearing, denied the mother's motion for an award of an attorney's fee in the sum of $33,471.32.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and the mother's motion for an award of an attorney's fee in the sum of $33,471.32, is granted.

The parties have three children together. In 2015, after they reached a settlement resolving several petitions, inter alia, to modify an existing court-sanctioned custody arrangement, the mother moved for an award of an attorney's fee in the sum of $33,471.32. The Family Court denied the motion, and the mother appeals.

“The Family Court has the authority to award an attorney's fee in custody proceedings when warranted under the circumstances of the case” (Matter of DeCillis v. DeCillis, 137 A.D.3d 1122, 1123, 26 N.Y.S.3d 887 ; see Family Ct. Act § 651[b] ; Domestic Relations Law § 237[b] ; Matter of Feng Lucy Luo v. Yang, 104 A.D.3d 852, 852, 963 N.Y.S.2d 266 ). “ ‘The award of reasonable counsel fees is a matter within the sound discretion of the trial court’ ” (Matter of Feng Lucy Luo v. Yang, 104 A.D.3d at 852, 963 N.Y.S.2d 266, quoting Walker v. Walker, 255 A.D.2d 375, 376, 680 N.Y.S.2d 114 ). “Any such 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 Feng Lucy Luo v. Yang, 104 A.D.3d at 852, 963 N.Y.S.2d 266, quoting Matter of O'Neil v. O'Neil, 193 A.D.2d 16, 20, 601 N.Y.S.2d 628 ; see Matter of Dempsey v. Dempsey, 78 A.D.3d 1179, 911 N.Y.S.2d 658 ; Matter of Sullivan v. Sullivan, 40 A.D.3d 865, 867, 836 N.Y.S.2d 259 ).

Here, the Family Court improvidently exercised its discretion in denying the mother's motion for an award of an attorney's fee (see Matter of DeCillis v. DeCillis, 137 A.D.3d 1122, 26 N.Y.S.3d 887 ; Matter of Liebenstein v. Irani, 125 A.D.3d 970, 1 N.Y.S.3d 861, 863 ; Matter of Feng Lucy Luo v. Yang, 104 A.D.3d 852, 963 N.Y.S.2d 266 ). Given the relative merits of the parties' positions, and their respective financial circumstances, an award of an attorney's fee to the mother in the sum of $33,471.32 is appropriate (see Matter of Liebenstein v. Irani, 125 A.D.3d 970, 1 N.Y.S.3d 861, 863...