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THE AWARD OF COUNSEL FEES TO MOTHER IN THIS MODIFICATION OF CUSTODY PROCEEDING WAS AN ABUSE OF DISCRETION; FATHER WAS NOT GIVEN ADEQUATE NOTICE OF ANY FRIVOLOUS CONDUCT; THE FINANCIAL CIRCUMSTANCES OF THE PARTIES WERE NOT CONSIDERED; THE RELEVANT REGULATORY AND STATUTORY CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have awarded counsel fees to mother. Mother brought an action for modification of a custody order on the ground father had lied about the method of transportation he used to go to Alabama with the child. Apparently father told mother they were going to drive, when in fact they flew. Mother was awarded $25,000 in counsel fees:

… Supreme Court permitted the mother to make a written application for counsel fees, [but] the court did not state whether the application should be made under 22 NYCRR 130-1.1….[T]he court did not … make a finding that the father’s conduct was “frivolous” within the meaning of 22 NYCRR 130-1.1. … [T]o the extent the court granted the mother’s application for an award of counsel fees pursuant to 22 NYCRR 130-1.1, the father did not receive sufficient notice of the alleged frivolous conduct, and, therefore, was not given “a reasonable opportunity to be heard” … .

… [T]o the extent that the Supreme Court granted the mother’s application for an award of counsel fees under 22 NYCRR 130-1.1, the court improperly based its determination to grant the application, in part, on the father’s act of lying to the mother about flying to Alabama with the parties’ child, since this conduct occurred outside of the proceeding before the court … . * * *

… [T]o the extent that the Supreme Court granted the mother’s application for an award of counsel fees pursuant to Domestic Relations Law § 237(b), the court did not adequately consider the disparate financial circumstances of the parties … . LeBoeuf v Greene, 2023 NY Slip Op 02870, Second Dept 5-31-23

Practice Point: Here the award of counsel fees was not appropriate under “frivolous conduct” or “financial circumstances” criteria. The relevant regulatory and statutory requirements for a counsel-fees award are explained in some depth.

 

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