CITY OF NEW YORK, COUNTY OF QUEENS
[Magistrate], being the Support Magistrate to whom the issues of support in the above-captioned proceeding were referred for determination, makes the following Decision and Order:
The parties were divorced on [Date Omitted]. [Mother] (hereinafter referred to as the "Non-Custodial Parent"), was ordered to pay child support for the subject children, [Child #1], and [Child #2], (hereinafter also referred to as the "Subject Children") to [Father], (hereinafter referred to as the "Custodial Parent"), in the amount of $303.00 per week, plus 29.6% of their private school tuition, effective [Date Omitted], the date of the Decision After Trial.
The court now has before it applications made by the custodial parent, [Father], seeking counsel fees in the amount of $62,221.52 incurred herein.
From June, 2011 to November, 2012, [Mother] filed numerous petitions, order to show applications and a motion to quash. Many, of which, sought relief already requested. [Father] filed a petition seeking enforcement of the Supreme Court order and motions for counsel fees, which were held in abeyance pending the dispositions of all her petitions and requests for relief.
After numerous delays caused by [Mother], a hearing was finally commenced in June 2012 (one year after the filing of her very first application). On September 19, 2012, her petitions were dismissed, see Findings of Fact detailing the basis for their dismissals.
On November 21, 2012, [Mother] filed a sixth (6) petition again seeking to modify, terminate, suspend and adjust arrears. Said petition was later dismissed on May 13, 2013, when [Mother] failed to appear.
On April 3, 2013, upon [Mother] paying $17,100.00 toward outstanding arrears, the enforcement petition filed against her by [Father] was settled, and these applications for counsel fees were set for a hearing on April 30, 2013 at 2:30 p.m. On that date, [Mother] failed to appear, claiming she was ill. The matters were adjourned again and marked "Final". On May 13, 2013, she failed to appear at 9:00 am, as directed, and the matters proceeded in her absence. Decision was reserved.
Family Court Act §438(a) grants the court discretion to award counsel fees in a proceeding brought to enforce and/or modify an order of support or divorce decree.
In making its determination, the court considers the nature and extent of the services required to deal with the dispute, the reasonableness of their performance under the circumstances the nature and the parties' ability to pay (Matter of Burris v. Burris, 91 A.D.3d 866, ; Matter of Nieves-Ford v. Gordon, 47 A.D.3d 936 ) the nature of the issues and the results achieved (Guiffrida v. Guiffrida, 81 A.D.2d 905 ).
Indigency is not a prerequisite. "In exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions." (Matter of DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, ).
Having considered all the aforementioned factors, and noting that these fees were incurred in connection with the numerous petitions filed by [Mother], seeking to reduce, suspend, terminate her child support obligation, adjust arrears, establish a child support order against the custodial parent, re-litigate issues already decided by the Supreme Court in their matrimonial action and later affirmed by the Appellate Division and also incurred due to her failure to comply with the Supreme Court order, thereby necessitating the filing of an enforcement petition, the court finds that an award of counsel fees in the amount of $50,000.00 is warranted under all the circumstances herein.
Accordingly, the motions for counsel fees are granted. Counsel fees are set at $50,000.00, payable direct to [Father], by check or money order, at $192.00 per week, commencing August 1, 2013, until satisfied.
/S/ SUPPORT MAGISTRATE
Dated: July 9, 2013