| Matter of Neuhauser v Eisenberger |
| 2010 NY Slip Op 07765 [77 AD3d 951] |
| October 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Tova Neuhauser, Respondent, v SethEisenberger, Appellant. |
—[*1] Johnson & Cohen, LLP, Pearl River, N.Y. (Susan G. Yellen of counsel), forrespondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals, aslimited by his brief, from (1) so much of an order of the Family Court, Rockland County(Christopher, J.), dated September 24, 2009, as denied his objections to so much of an order ofthe same court (Miklitsch, S.M.), dated September 4, 2009, as, after a hearing, and upon grantingthose branches of the mother's petition which were for a determination that he willfully violatedan order of support dated May 8, 2008, by, inter alia, failing to timely remit payments due to themother on August 30, 2008, and September 1, 2008, awarded counsel fees to the mother in thesum of $780, and (2) so much of an order of the same court dated September 30, 2009, as deniedhis objections to so much of an order of the same court (Miklitsch, S.M.), dated June 11, 2009, asgranted that branch of the mother's separate petition which was, in effect, to modify the parties'separation agreement which was incorporated but not merged into a judgment of divorce datedJune 12, 2006, by directing him to pay all transportation expenses for their son, David, from themother's home to school, and from school to the mother's home, effective August 9, 2007, andawarded counsel fees to the mother in the sum of $15,525.
Ordered that the orders dated September 24, 2009, and September 30, 2009, are affirmedinsofar as appealed from, with one bill of costs.
A party seeking to change the support provisions contained in a stipulation of settlementincorporated but not merged into a judgment of divorce has the burden of establishing asubstantial, unanticipated, and unreasonable change in circumstances resulting in a concomitantneed (see Merl v Merl, 67 NY2d 359 [1986]; Matter of Schlakman v Schlakman, 66 AD3d 786, 787 [2009]; Matter of Ripa v Ripa, 61 AD3d766 [2009]; Matter of Kerner vKerner, 46 AD3d 683 [2007]). Contrary to the father's contention, the mother met herburden as to that branch of her petition which was in effect, to modify the parties' separationagreement incorporated but not merged into a judgment of divorce dated June 12, 2006, bydirecting the father to pay all transportation expenses for their son, David, from the mother'shome to school, and from school to the mother's home, effective August 9, 2007.
The father's contention that the Family Court was without authority to award counsel fees tothe mother because such fees for modification petitions are not authorized in the separationagreement is without merit. The parties' separation agreement provides that in cases of a default,the defaulting party [*2]is obligated to pay the nondefaultingparty's counsel fees. Contrary to the father's contention, nothing in this provision precludes anaward of counsel fees in modification proceedings, or specifically limits counsel fee awards todefaults. In addition, the Family Court is authorized pursuant to Family Court Act § 438 toaward counsel fees to the mother (see Matter of Olesh v Auerbach, 227 AD2d 406[1996]; Fischman v Fischman, 209 AD2d 916 [1994]; cf. Millard v Millard, 246AD2d 349 [1998]; Clemens v Clemens, 130 AD2d 455 [1987]). Considering the parties'ability to pay, the nature and extent of the legal services required to deal with the support dispute,and the reasonableness of counsel's performance, under the circumstances, the Family Courtprovidently exercised its discretion in awarding counsel fees in the sum of $15,525 to the mother(see Matter of Nieves-Ford vGordon, 47 AD3d 936 [2008]).
To the extent the father claims that the Family Court erroneously granted that branch of themother's petition pertaining to a certain clothing allowance account, we note that thedetermination relating to the clothing allowance account was separately made in an order of theFamily Court dated December 31, 2008. The father had withdrawn his appeal from that order,and by decision and order on motion of this Court dated December 1, 2009, his second attempt toappeal from that order was dismissed. Therefore, the issue of the clothing allowance account isnot before us.
The father's remaining contentions are based on matter dehors the record and are not properlybefore us (see Matter of Maurer vMaurer, 57 AD3d 548 [2008]), or are without merit. Mastro, J.P., Dickerson, Eng andLott, JJ., concur.