Opinion
June 20, 1983
In a support enforcement proceeding, the husband appeals from (1) an order of the Family Court, Queens County (Fogarty, J.), dated May 6, 1982, which, inter alia, awarded the petitioner wife judgment for $1,035 in arrears plus $1,000 in counsel fees, and (2) an order and judgment (one paper) of the same court dated May 20, 1982, which denied his application for a downward modification of support and directed entry of a money judgment in favor of the petitioner. Appeal from the order dated May 6, 1982 dismissed except insofar as it granted counsel fees to the petitioner (see Matter of Aho, 39 N.Y.2d 241, 248). So much of the same order as awarded $1,000 in counsel fees reversed and matter remitted to the Family Court, Queens County, for a hearing in accordance herewith. Order and judgment dated May 20, 1982, affirmed. Petitioner is awarded one bill of costs. In the case sub judice, it is clear that the appellant husband's financial difficulties are attributable to debts incurred because of his gambling activities. Such conduct does not justify a downward modification of support (see Matter of Doscher v. Doscher, 80 A.D.2d 945, affd 54 N.Y.2d 655). However, the court's award of counsel fees to the wife on the basis of an affirmation alone was improper. When challenged, counsel fees must be proved in an adversarial atmosphere where, upon the presentation of testimony, the opposing parties may assert the right to cross-examine ( Badenhop v. Badenhop, 84 A.D.2d 773). Gibbons, J.P., Bracken, Brown and Niehoff, JJ., concur.