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In re Felix

Supreme Court of New York, Second Department

October 9, 2013

In the Matter of Jacqueline Felix, respondent,
v.
Robert Felix, appellant. (Docket No. F-1641-09)

Jay S. Baum, Staten Island, N.Y., for appellant.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In a support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Richmond County (Wolff, J.), dated October 9, 2012, which denied his objections to an order of the same court (Hickey, S.M.), dated June 19, 2012, awarding the mother counsel fees totaling $10, 060.

ORDERED that the order dated October 9, 2012, is affirmed, with costs.

The Family Court providently exercised its discretion in awarding the mother counsel fees pursuant to Family Court Act § 438(a) (see Matter of Dinhofer v Zabezhanskaya, 79 A.D.3d 1039, 1040). "[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 Westergaard v Westergaard, 106 A.D.3d 926; Matter of Sarfaty v Recine, 57 A.D.3d 552). The specific 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" (Matter of Westergaard v Westergaard, 106 A.D.3d at 926-927; see Matter of Dinhofer v Zabezhanskaya, 79 A.D.3d at 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). "Further, the merits of the parties' positions are relevant considerations" (Matter of Dinhofer v Zabezhanskaya, 79 A.D.3d at 1040; see Matter of Finell v Finell, 25 A.D.3d at 704; Giuffrida v Giuffrida, 81 A.D.2d at 906). Under the totality of the circumstances presented here, the award of counsel fees was proper (see Matter of Dinhofer v Zabezhanskaya, 79 A.D.3d at 1040).

The father's claim that the Family Court should have denied the mother's application for counsel fees because the mother's counsel failed to submit billing statements to the mother "at least every 60 days" (22 NYCRR 1400.2) is without merit. The evidence before the Family Court showed that the mother's counsel substantially complied with the statute (cf. Gottlieb v Gottlieb, 101 A.D.3d 678, 679; Hovanec v Hovanec, 79 A.D.3d 816, 817; Sherman v Sherman, 34 A.D.3d 670, 671). The father's claim that the mother's counsel failed to comply with the filing requirement of 22 NYCRR 1400.3, raised for the first time on appeal, is not properly before this Court (see Matter of Grucci v Villanti, 108 A.D.3d 626, 268; Matter of Rivera v Echavarria, 48 A.D.3d 578).

SKELOS, J.P., HALL, COHEN and HINDS-RADIX, JJ., concur.


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