After a full hearing on the merits, petitioner's application for an order of support in accordance with article 4 of the Family Court Act, based upon her allegation that "respondent since on or about approximately five years ago has refused and neglected to provide fair and reasonable support for petitioner and the other dependents according to his means and earning capacity," is dismissed, without prejudice, however, to petitioner's right to institute a new petition in the event that respondent fails to continue his present payments to petitioner, or in the event respondent's net income in the future exceeds his 1968 net income.
The court finds that the respondent has indeed been supporting the petitioner and children at all times during the past five years, according to his means. The evidence clearly establishes that the respondent has been voluntarily making payments to petitioner for herself and the children in excess of his obligations under the separation agreement dated November 25, 1961.
Even if the court were to hold that the respondent's obligations for support should be based solely on his net income for his bonanza year of 1968 when he earned $36,243 from his legal practice, (plus a nonrecurring capital gain of $4,956.12), the income taxes, Federal, State and city, paid by respondent for said year totaled $13,567.24, leaving him less than $23,000 spendable income from his legal income (plus whatever the taxes would be on the capital gain of $4,956.12, since the taxes thereon were part of the total taxes paid by respondent).
Accordingly, the respondent was left with spendable income of approximately $23,000 to $25,000 during 1968, out of which he paid petitioner $14,408.67, all tax free to petitioner, leaving him with somewhere between $8,600 to $10,000 approximately, or approximately 40% of his net spendable income.
While it might have been helpful to the court to have had a six or seven months' income, expense and tax liability report for the first six or seven months of 1969, to ascertain the direction in which respondent's income was heading, the court did have testimony from the respondent, which it credits, that his estimate is that he would earn more than 1967 when he earned $20,000, and less than 1968.
In any event, the respondent established that, during the year 1969 to date he contributed to the petitioner the sum of $9,670.13, which may be projected to an annual contribution equivalent to the $14,408.67 paid by him in 1968, which would then be in excess of the $11,677.76 contributed by him in 1967 when he earned $20,000.
Since the court has found that the respondent has been providing fair and reasonable support for petitioner and the children during the past five years according to his means and earning capacity, the petition is dismissed, without prejudice to the right of the petitioner to institute a new petition if the circumstances referred to in the first paragraph of this decision eventuate.
On the application of petitioner's attorney for counsel fees, same is allowed notwithstanding the dismissal of the petition herein.
Section 438 of the Family Court Act dealing with awards for counsel fees provides as follows: "In any proceeding under this article by a wife or former wife, against her husband, or former husband, including proceedings for herself and her children * * * the court may allow counsel fees at any stage of the proceeding, to the attorney representing the wife, former wife, or person on behalf of children" (italics supplied).
It will be noted that the section permits the court to award counsel fees at any stage of the proceeding, but does not specify whether success by the wife is a prerequisite to an award of counsel fees to her attorney.
The court has been unable to find any case directly in point under section 438 of the Family Court Act, although Matter of Sullivan v. Sullivan (55 Misc. 2d 691, affd. 29 A.D.2d 739) is somewhat suggestive of the answer. In that case, involving petitioner's application for an increase in an order of support, and respondent's application for a decrease, both applications were denied. The court however, used this language (p. 694): "The petitioner in her modification proceeding asks for counsel fees (Family Ct. Act, § 438). Such allowance is discretionary with the court and is conditioned not only upon the services rendered, but upon all the other circumstances of the case."
However, even though the court held that counsel fee is discretionary, it may be argued that the court considered the question of counsel fees for the petitioner (although same was ultimately denied) upon the special facts therein, only because respondent had cross-petitioned for a reduction in the support order, and accordingly the petitioner wife was required to defend against the respondent husband's cross application for reduction, thereby entitling her to a consideration of counsel fees for her attorney.
Suggestive of a possible answer, however, is subdivision (a) of section 237 of the Domestic Relations Law dealing with the right of the wife to counsel fees in ...