New York Family Law Blog
In an action for a divorce and ancillary relief, in which the parties entered into a stipulation of settlement in open court on December 16, 2009, A New York Family Lawyer said that, the plaintiff appeals from an amended order of the Supreme Court, Suffolk County, dated March 8, 2010, which awarded the defendant counsel fees in the sum of $15,000 and directed that he pay retroactive child support in the sum of $24,199.20 and arrears of his pro rata share of certain child care expenses in the sum of $1,666.
The issue in this case is whether the court erred in granting the retroactive pay of child support.
The court in deciding the case said that, an award of counsel fees pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the ‘issue is controlled by the equities and circumstances of each particular case’. In determining whether to award counsel fees, the 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”. A counsel fee award generally will be warranted where there is a significant disparity in the financial circumstances of the parties. The court may also consider “whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation”.
A New York Child Custody Lawyer said here, the court held that the record reflects that the defendant’s income was less than half that of the plaintiff. The record also reflects that the plaintiff engaged in unnecessary litigation by contesting the defendant’s motion to set aside the parties’ initial stipulation of settlement, the terms of which were manifestly unfair to her. Accordingly, given the equities and circumstances of the case, the Supreme Court providently exercised its discretion in awarding the defendant $15,000 in counsel fees, which was less than one third the sum requested.
Thus, the Supreme Court properly determined that the defendant was entitled to an award of child support retroactive to March 28, 2008, the date of her pendente lite motion. A Long Island Family Lawyer said the Supreme Court also properly credited the plaintiff for his payments of the carrying charges on the marital residence, made pursuant to a pendente lite order dated October 8, 2008. However, the Supreme Court erred in calculating the amount of retroactive child support based on the Child Support Standards Act (CSSA) guidelines. The parties entered into a binding stipulation of settlement in open court on December 16, 2009, in which they knowingly and properly opted out of the provisions of the CSSA and agreed that the plaintiff’s child support obligation would be $1,705 per month (see Domestic Relations Law § 240[1–b][h]). Therefore, the Supreme Court should have calculated the amount of retroactive child support based on that figure, resulting in an award of $13,225,40. We remit the matter to the Supreme Court, Suffolk County, so that the court may determine whether that sum is to be paid in installments or in a lump sum.
The Supreme Court properly directed the plaintiff to pay the sum of $1,666, representing arrears of his pro rata share of day care expenses for the parties’ daughter.
Accordingly, a Queens Family Lawyer said in view of the foregoing premises the court held that the that the amended order is modified, on the law, by deleting the provision thereof directing that the plaintiff pay retroactive child support in the sum of $24,199.20, and substituting therefore a provision directing that the plaintiff pay retroactive child support in the sum of $13,225.40; as so modified, the amended order is affirmed, with costs to the defendant, and the matter is remitted to the Supreme Court, Suffolk County for the entry of an appropriate second amended order in accordance herewith.
The rule is that, a counsel fee award generally will be warranted where there is a significant disparity in the financial circumstances of the parties. There is a need for the assistance of a Suffolk Child Support Attorney and Suffolk Divorce Attorney at Stephen Bilkis and Associates in order to settle your issues with your partner. Call us.