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In re Westergaard

Supreme Court of New York, Second Department

May 15, 2013

In the Matter of Aaron Westergaard, appellant,
v.
Kerin Westergaard, respondent. Mark D. Imber, Garden City, N.Y., for appellant. Docket No. F-9148-06

PETER B. SKELOS, J.P. THOMAS A. DICKERSON PLUMMER E. LOTT SHERI S. ROMAN, JJ.

DECISION & ORDER

In a support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Hoffmann, J.), dated September 26, 2012, which denied his objection to an order of the same court (Parisi, S.M.) dated July 2, 2012, which granted his motion pursuant to Family Court Act § 438(a) for an award of an attorney's fee only to the extent of awarding him the sum of $1, 000.

ORDERED that the order is affirmed, without costs or disbursements.

The Support Magistrate providently exercised her discretion in granting the father's motion pursuant to Family Court Act § 438(a) for an award of an attorney's fee only to the extent of awarding him the sum of $1, 000. "[T]he award of reasonable counsel fees is a matter within the sound discretion of the trial court" (Matter of Grald v Grald, 33 A.D.3d 922, 923; see Matter of Sarfaty v Recine, 57 A.D.3d 552). The factors to be considered in computing an appropriate award include the parties' ability to pay, the merits of the parties' positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel's performance and the fees under the circumstances (see Matter of Dinhofer v Zabezhanskaya, 79 A.D.3d 1039, 1040; Matter of Nieves-Ford v Gordon, 47 A.D.3d 936, 937; Matter of Musarra v Musarra, 28 A.D.3d 668, 669; Matter of Finell v Finell, 25 A.D.3d 703, 704; Giuffrida v Giuffrida, 81 A.D.2d 905, 906). Under the totality of the circumstances, including the mother's limited income, the award of limited counsel fees to the father was appropriate. Accordingly, the Family Court properly denied the father's objection to the Support Magistrate's order.

SKELOS, J.P., DICKERSON, LOTT and ROMAN, JJ., concur.


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