Opinion
2013-03-20
In the Matter of Feng Lucy LUO, respondent, v. Thomas YANG, appellant.
Vasti & Vasti, P.C., Pleasant Valley, N.Y. (Thomas F. Vasti, III, and Damon J. Velardi of counsel), for appellant. Gary E. Lane, Poughkeepsie, N.Y., for respondent.
Vasti & Vasti, P.C., Pleasant Valley, N.Y. (Thomas F. Vasti, III, and Damon J. Velardi of counsel), for appellant. Gary E. Lane, Poughkeepsie, N.Y., for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SYLVIA HINDS–RADIX, JJ.
In two related custody and visitation proceedings pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Dutchess County (Posner, J.), dated May 2, 2012, as, without a hearing, granted the mother's motion for an award of counsel fees to the extent of awarding her counsel fees in the sum of $20,000.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Family Court has the authority to award counsel fees in custody proceedings when warranted under the circumstances of the case ( seeFamily Ct. Act § 651[b]; Domestic Relations Law § 237[b]; Matter of Belle v. DeMilia, 19 A.D.3d 691, 798 N.Y.S.2d 104;Matter of O'Neil v. O'Neil, 193 A.D.2d 16, 19–20, 601 N.Y.S.2d 628). “The award of reasonable counsel fees is a matter within the sound discretion of the trial court” ( Walker v. Walker, 255 A.D.2d 375, 376, 680 N.Y.S.2d 114;see Matter of Friedman v. Rome, 49 A.D.3d 878, 854 N.Y.S.2d 515). Any such award “is to be based on the financial circumstances of the parties and the circumstances of the case as a whole, which may include the relative merit of the parties' positions, but should not be predicated solely on who won and who lost” ( Matter of O'Neil v. O'Neil, 193 A.D.2d at 20, 601 N.Y.S.2d 628;see Matter of Dempsey v. Dempsey, 78 A.D.3d 1179, 911 N.Y.S.2d 658;Matter of Sullivan v. Sullivan, 40 A.D.3d 865, 867, 836 N.Y.S.2d 259). Contrary to the father's contention, under the circumstances of this case, including the relative merits of the parties' positions and their respective financial circumstances, the Family Court providently exercised its discretion in granting the mother's motion for an award of counsel fees ( see Matter of Tuglu v. Crowley, 96 A.D.3d 862, 946 N.Y.S.2d 608;Matter of Ross v. Ross, 96 A.D.3d 856, 858, 946 N.Y.S.2d 598). In addition, the court properly awarded the mother counsel fees without a hearing. The parties stipulated that the mother's motion could be decided on papers, and the papers submitted in support of, and in opposition to, the motion were sufficient to permit a proper determination of the issue ( see Matter of O'Shea v. Parker, 16 A.D.3d 510, 511, 790 N.Y.S.2d 717;Bengard v. Bengard, 5 A.D.3d 340, 772 N.Y.S.2d 526;Matter of Zirkind v. Zirkind, 218 A.D.2d 745, 630 N.Y.S.2d 570).