| Matter of Simmons v Simmons |
| 2010 NY Slip Op 01968 [71 AD3d 775] |
| March 9, 2010 |
| Appellate Division, Second Department |
| In the Matter of Tracy S. Simmons, Appellant, v Jeff A.Simmons, Respondent. |
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Kevin E. Rockitter, P.C., Woodbury, N.Y., for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the mother appealsfrom three orders of the Family Court, Nassau County (Singer, J.), all dated March 31, 2009,which (1) denied her objections to an order of the same court (Kahlon, S.M.), dated November18, 2008, denying her motion, in effect, to modify a prior order of child support dated April 19,2006, as modified by an order of this Court dated February 19, 2008, (2) denied her objections toan order of the same court (Kahlon, S.M.), dated November 18, 2008, dismissing, after a hearing,her petition for an upward modification of the father's child support obligation, and (3) deniedher motion, in effect, to vacate an order of the same court (Kahlon, S.M.), dated January 7, 2009,awarding the father an attorney's fee.
Ordered that the first and second orders dated March 31, 2009 are affirmed, without costs ordisbursements; and it is further,
Ordered that the third order dated March 31, 2009 is reversed, on the law, without costs ordisbursements, the mother's motion, in effect, to vacate the order dated January 7, 2009 isgranted, and the order dated January 7, 2009 is vacated.
The Family Court providently exercised its discretion in denying the mother's objections tothe Support Magistrate's determination that she failed to establish a substantial change incircumstances warranting an upward modification of child support (see DomesticRelations Law § 236 [B] [9] [b]; Matter of Fantel v Stamatatos, 59 AD3d 717 [2009]; Matter of Talty v Talty, 42 AD3d546, 547 [2007]; Matter ofHeyward v Goldman, 23 AD3d 468 [2005]).
However, the Family Court erred in denying the mother's motion, in effect, to vacate anorder of the Support Magistrate dated January 7, 2009, awarding the father an attorney's fee.Family Court Act § 438 (a) authorizes an award of an attorney's fee only to an attorneywho is representing the party claiming a right to support on behalf of the child, which was notthe case here (see Matter of Byrne vByrne, 46 AD3d 811 [2007]; Matter of Katz v Pecora, 39 AD3d 646 [2007]; Sampson vGlazer, 109 AD2d 831 [1985]). Fisher, J.P., Florio, Belen and Austin, JJ., concur.