Calendar Date: November 15, 2017
Theresa M. Suozzi, Saratoga Springs, for appellant.
Before: Egan Jr., J.P., Rose, Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Washington County
(Michelini, J.), entered October 15, 2015, which, in a
proceeding pursuant to Domestic Relations Law article 5-a,
granted petitioner's motion for costs and counsel fees.
(hereinafter the mother) and respondent William DD.
(hereinafter the father) are the parents of a daughter (born
in 2003). A 2005 order issued in Alabama awarded joint legal
custody of the child to the father and respondent Tammy EE.
(hereinafter the maternal grandmother), with the maternal
grandmother to have primary physical placement. By 2015, the
maternal grandmother and the child had lived in Tennessee for
several years and the father lived in New York.
father purportedly became concerned for the child's
welfare and, in July 2015, removed the child from the
maternal grandmother's care, brought the child to New
York and petitioned Family Court for modification of the
Alabama order. The mother quickly obtained an ex parte
emergency order in Tennessee that awarded her legal and
physical custody of the child and directed the father to
place the child in her care. The mother filed the Tennessee
order for registration in New York pursuant to the Uniform
Child Custody Jurisdiction and Enforcement Act (see
Domestic Relations Law art 5-A [hereinafter UCCJEA]; Domestic
Relations Law § 77-d). The father then refused to turn
over the child in defiance of the Tennessee order, prompting
the mother to petition Family Court for enforcement of the
Tennessee order and obtain an ex parte temporary order
awarding her sole legal and physical custody of the child
pending further proceedings (see Domestic Relations
Law §§ 77-d ; 77-g).
child was turned over to the mother prior to an appearance on
the pending petitions and, at that appearance, the father
withdrew his custody modification petition and conceded that
Tennessee was the appropriate forum (see e.g.
Domestic Relations Law §§ 76-a, 76-b). The only
unresolved issue, as a result, was the mother's request
for an award of costs and counsel fees pursuant to Domestic
Relations Law § 77-k. Upon Family Court's direction,
the mother submitted paperwork reflecting that she had
incurred $4, 262.29 in costs and counsel fees. After
considering those papers, as well as the father's written
opposition, Family Court found that the requested amount was
appropriate and ordered the father to pay it. The father now
affirm. Family Court is empowered and required to
"recognize and enforce a child custody determination of
a court of another state" if it was issued "in
substantial conformity" with the UCCJEA (Domestic
Relations Law § 77-b ). The mother argued that the
Tennessee order fell within that category, registered it in
New York and, while awaiting confirmation of that
registration, was free to simultaneously seek enforcement of
the order (see Domestic Relations Law §§
77-d ; 77-g). The mother was obliged to petition for
enforcement after the father refused to honor the Tennessee
order and its direction that he "immediately return the
child to the [m]other" under penalty of contempt.
Inasmuch as the mother succeeded in her enforcement efforts,
with the father turning over the child to her and
acknowledging that Tennessee was the appropriate venue, she
was entitled to "necessary and reasonable expenses
incurred by or on [her] behalf..., including costs,
communication expenses, attorney's fees, investigative
fees, expenses for witnesses, travel expenses, and child care
during the course of the proceedings, unless the party from
whom fees or expenses are sought establishes that the award
would be inappropriate" (Domestic Relations Law §
the amount of costs and counsel fees, the father agreed that
Family Court should resolve the issue on papers and, notably,
failed to thereafter request a hearing (see e.g. Williams
v Williams, 99 A.D.3d 1094, 1097 ). Counsel for
the mother submitted an affirmation, with time sheets annexed
to it, explaining that she had performed $3, 750 of work but
had agreed to cap her bill for the mother at $2, 000. The
mother also submitted her own affidavit in which she set
forth the travel and lodging expenses incurred as the result
of her quest to recover the child in New York. The father
responded by nitpicking the amount sought and claiming that
any award would be inappropriate given his allegedly virtuous
aims. Our review nevertheless confirms the assessment of
Family Court that the costs and counsel fees sought were
reasonable and that, in light of the father's refusal to
turn the child over to the mother despite an order directing
him to do so from a jurisdiction that he never disputed was a
correct one, the father failed to "establish that the
award would be inappropriate" (Domestic Relations Law
§ 77-k ).
Jr., J.P., Rose, Mulvey and ...