| Cervera v Cervera |
| 2007 NY Slip Op 06619 [43 AD3d 849] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Frank Cervera, Appellant, v Rossanna Cervera, AlsoKnown as Rossanna Bressler, Defendant. Joshua D. Siegel, NonpartyRespondent. |
—[*1] Joshua D. Siegel, Hartsdale, N.Y., Law Guardian, nonparty respondent pro se.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from so much of an order of the Supreme Court, Westchester County (Donovan, J.), dated April6, 2006, as approved compensation to the Law Guardian in the sum of $26,133.20, and directedhim to pay 50% of that sum.
Ordered that on the Court's own motion, the appellant's notice of appeal is treated as anapplication for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and itis further,
Ordered that the order is modified, on the law, by reducing the sum awarded to $25,421.46;as so modified, the order is affirmed insofar as appealed from, with costs to the nonpartyrespondent, and the matter is remitted to the Supreme Court, Westchester County, for furtherproceedings in accordance herewith.
The nonparty respondent Joshua Siegel was appointed Law Guardian for the parties' daughterin this contentious matrimonial action. In March 2005 Siegel submitted a proposed order to theSupreme Court which, inter alia, directed the plaintiff father (hereinafter the appellant) to payhim accrued compensation in the sum of $12,710.73. The appellant, although objecting to certainprovisions of Siegel's proposed order not relevant to this appeal, did not dispute the amount ofaccrued compensation owed. Indeed, the appellant submitted a proposed counter-order, signed by[*2]the court on March 23, 2005 which left intact suchcompensation. In August 2005, after Siegel sought to compel payment of the accruedcompensation, the appellant disputed various amounts of compensation claimed by Siegel forcertain periods between August 12, 2003 and July 17, 2005. This is the first and only evidence onthe record of any objection by the appellant to the compensation being demanded by Siegel. Inthe order appealed from, the Supreme Court, inter alia, awarded Siegel compensation in the sumof $26,133.20, and directed the appellant to pay 50% of that sum.
Under the circumstances of this case, the appellant is precluded from challenging thecompensation award up to the amount directed to be paid in the order dated March 23, 2005, i.e.,$12,710.73. However, the compensation directed to be paid in the order appealed from exceedsthat amount, even after apportionment, and the basis for an award of additional compensation isnot stated in the order and is not otherwise clear from the record. To the extent, if any, that theorder appealed from directed the payment of compensation in addition to that directed to be paidin the order dated March 23, 2005, there is no evidence that the appellant was afforded anopportunity to challenge the same, or to challenge the apportionment of the same—a rightexpressly reserved to him in the prior order. Consequently, we remit the matter to the SupremeCourt, Westchester County.
We decline the Law Guardian's request to impose a sanction upon the appellant for pursuingan allegedly frivolous appeal (see 22 NYCRR 130-1.1). Miller, J.P., Crane, Ritter andLifson, JJ., concur.