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EVEN THOUGH FATHER PAID WHAT HE OWED WHEN MOTHER FILED A PETITION FOR UNPAID CHILD SUPPORT, MOTHER WAS ENTITLED TO ATTORNEY’S FEES (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court improvidently exercised its discretion when it denied mother’s request for attorney’s fees. Father was in arrears but paid what was owed after mother filed a petition for the unpaid child support. Mother was entitled to attorney’s fees despite the fact that father withheld payment because of a dispute about cell phone bills and college expenses:

Pursuant to Family Court Act § 438(a), a court, in its discretion, may award reasonable attorneys’ fees in an enforcement proceeding. The denial of an award of attorneys’ fees to the mother in this case was an improvident exercise of discretion. The father paid the sum demanded for arrears in satisfying his child support obligations, but only after the mother was forced to expend attorneys’ fees to commence an enforcement proceeding. The fact that the father was engaged in a dispute over whether he should be credited for payments for cell phone expenses and college expenses paid before the entry of the parties’ judgment of divorce did not authorize him to engage in self-help by withholding child support payments that he ultimately did not dispute were due and owing. Matter of Mensch v Mensch, 2019 NY Slip Op 00126, Second Dept 1-9-19

 

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