F. Hagney, Esq., P.C., Huntington, NY, for appellant.
Wallace, Witty, Frampton & Veltry, P.C., Bay Shore, NY
(David J. Hove of counsel), for respondent.
C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, HECTOR
D. LASALLE, JJ.
DECISION & ORDER
by the defendant from an order of the Supreme Court, Suffolk
County (Marlene L. Budd, J.), dated March 23, 2015. The
order, insofar as appealed from, granted those branches of
the plaintiff's motion which were for child support
arrears and adoptive child subsidy payment arrears to the
extent of awarding her the sum of $14, 372.03, and for an
award of counsel fees to the extent of awarding her the sum
of $3, 500.
that the order is reversed insofar as appealed from, on the
law, without costs or disbursements, that branch of the
plaintiff's motion which was for an award of counsel fees
is denied, and the matter is remitted to the Supreme Court,
Suffolk County, for further proceedings consistent herewith.
parties were divorced pursuant to a judgment entered April 2,
2002, which incorporated but did not merge their stipulation
of settlement dated July 6, 2001. Pursuant to the
stipulation, the defendant was required to pay child support
for the parties' three children. The amount of support
was to be adjusted each year based on the percentage
increase, if any, in the Consumer Price Index (hereinafter
CPI) for New York City. Pursuant to an agreement between the
parties signed on December 1, 2006, and a consent order dated
September 5, 2007, the parties agreed to equally split
adoptive child subsidy (hereinafter ACS) payments they
receive on behalf of their adopted son. The plaintiff further
acknowledged in the December 1, 2006, agreement that she had
received, on that date, an increased payment in the amount of
$1, 666.36, which represented the monthly child support
payment that would be due for each month in the year 2007,
inclusive of the increase based on the CPI.
plaintiff moved, inter alia, to hold the defendant in
contempt for his willful failure to pay child support and her
share of the ACS payments, to determine child support and ACS
arrears, to recalculate the defendant's child support
obligations de novo based upon the emancipation of the
parties' oldest child, and for an award of counsel fees.
The defendant opposed the motion, claiming that although he
owed the plaintiff for the ACS payments, the plaintiff owed
him money since he had overpaid child support.
Supreme Court issued an order based on the parties'
written submissions without holding a hearing. In its order,
the court, inter alia, determined that the defendant owed the
sums of $9, 275.91 in child support arrears and $5, 096.12 in
ACS arrears, and awarded the plaintiff the sum of $3, 500 in
counsel fees. The defendant appeals.
Supreme Court erred in granting those branches of the
plaintiff's motion which were for child support and ACS
arrears and directing the entry of a money judgment against
the defendant without first conducting an evidentiary hearing
to establish the amount owed, which was disputed by the
defendant (see Matter of Malloy v O'Gorman, 139
A.D.3d 733, 735; Miller v Miller, 18 A.D.3d 629,
629-630; Palladino v Palladino, 264 A.D.2d 441,
442). Moreover, the court erred in relying on the
plaintiff's calculations for increases to annual child
support in determining arrears since her calculations failed
to reflect the correct increase for 2007 based upon the
parties' agreement signed on December 1, 2006. As such,
the plaintiff's calculations for each successive
year's increase were rendered incorrect.
Supreme Court erred in granting that branch of the
plaintiff's motion which was for an award of counsel
fees, as there was no documentation submitted of the value of
services performed by her attorney (see Marshall v
Marshall, 1 A.D.3d 323, 324; Reynolds v
Reynolds, 300 A.D.2d 645, 646; cf. Ackerman v
Midura, 145 A.D.3d 647, 648). Here, the plaintiff sought
an award of counsel fees in the sum of $5, 000, and the court
failed to explain how it determined that the
"reasonable" fees incurred by the plaintiff
amounted to the sum of $3, 500, in light of the fact that the
plaintiff's counsel failed to submit detailed billing
records showing the legal services performed, and the time
expended on each service (see Marshall v Marshall, 1
A.D.3d at 324; Reynolds v Reynolds, 300 A.D.2d at
we remit the matter to the Supreme Court, Suffolk County, for
a hearing to determine the amount of child ...