| Matter of Dempsey v Dempsey |
| 2010 NY Slip Op 08942 [78 AD3d 1179] |
| November 30, 2010 |
| Appellate Division, Second Department |
| In the Matter of Donald Dempsey, Appellant, v PamelaDempsey, Respondent. |
—[*1]
In a proceeding pursuant to Family Court Act article 6, the father appeals, as limited by hisbrief, from so much of (1) an order of the Family Court, Putnam County (Reitz, J.), datedDecember 3, 2009, as granted the mother's motion for an award of an attorney's fee and directedthe father to pay the mother an attorney's fee in the sum of $13,000, and (2) an order of the samecourt dated April 30, 2010, as denied his motion for leave to renew his opposition to the mother'smotion for an award of an attorney's fee.
Ordered that the orders are affirmed insofar as appealed from, without costs ordisbursements.
The Family Court properly granted the mother's motion for an award of an attorney's fee. TheFamily Court has the power to award an attorney's fee in a custody matter pursuant to DomesticRelations Law § 237 (b) (see Matter of Belle v DeMilia, 19 AD3d 691, 691-692[2005]; Matter of O'Shea v Parker, 16 AD3d 510 [2005]; Matter of O'Neil vO'Neil, 193 AD2d 16, 20 [1993]). "An award made pursuant to Domestic Relations Law§ 237 (b) is to be based on the financial circumstances of the parties and the circumstancesof the case as a whole, which may include the relative merit of the parties' positions, but shouldnot be predicated solely on who won and who lost" (Matter of O'Neil v O'Neil, 193AD2d at 20). Here, considering the relative financial circumstances of the parties and thecircumstances of the case, the Family Court providently exercised its discretion in granting themother's motion for an award of an attorney's fee in the sum of $13,000.
The Family Court properly denied the father's motion for leave to renew his opposition to themother's motion for an award of an attorney's fee because the father failed to offer new factswhich, although in existence at the time he filed opposition to the prior motion, were not knownto him (see Jacobs v Sabo, 17 AD3d 321 [2005]; Johnson v Marquez, 2 AD3d786, 788-789 [2003]), and which would have changed the prior determination (see CPLR2221 [e]). Fisher, J.P., Florio, Leventhal and Hall, JJ., concur.