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Defendant Appeals Order for Retroactive Child Support and Counsel Fees


In an action for a divorce and ancillary relief, in which the parties entered into a stipulation of settlement in open court, the complainant appeals from an amended order of the Supreme Court which awarded the defendant counsel fees in the sum of $15,000 and directed that he pay retroactive child support in the sum of $24,199.20 and arrears of his pro rata share of certain child care expenses in the sum of $1,666.

A New York Family Lawyer said the amended order is modified, on the law, by deleting the provision thereof directing that the complainant pay retroactive child support in the sum of $24,199.20, and substituting therefore a provision directing that the complainant pay retroactive child support in the sum of $13,225.40; as so modified, the amended order is affirmed, with costs to the defendant, and the matter is remitted to the Supreme Court for the entry of an appropriate second amended order in accordance herewith.

An award of counsel fees pursuant to Domestic Relations Law is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case. In determining whether to award counsel fees, the court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions. A New York Custody Lawyer said the counsel fee award generally will be warranted where there is a significant disparity in the financial circumstances of the parties. The court may also consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation.

The record reflects that the defendant’s income was less than half that of the complainant. A Staten Island Family Lawyer said the record also reflects that the complainant engaged in unnecessary litigation by contesting the defendant’s motion to set aside the parties’ initial stipulation of settlement, the terms of which were manifestly unfair to her. Accordingly, given the equities and circumstances of the case, the Supreme Court providently exercised its discretion in awarding the defendant $15,000 in counsel fees, which was less than one third the sum requested.

The Supreme Court properly determined that the defendant was entitled to an award of child support retroactive to March 28, 2008, the date of her pendente lite motion (awaiting the ligation). A Nassau County Family Lawyer said the Supreme Court also properly credited the complainant for his payments of the carrying charges on the marital residence, made pursuant to a pendente lite order dated October 8, 2008. However, the Supreme Court erred in calculating the amount of retroactive child support based on the Child Support Standards Act (CSSA) guidelines. The parties entered into a binding stipulation of settlement in open court on December 16, 2009, in which they knowingly and properly opted out of the provisions of the CSSA and agreed that the complainant’s child support obligation would be $1,705 per month. Therefore, the Supreme Court should have calculated the amount of retroactive child support based on that figure, resulting in an award of $13,225.40. The matter was remitted to the Supreme Court so that the court may determine whether that sum is to be paid in installments or in a lump sum.

When a child receiving support is a public assistance recipient, or the order of support is being enforced or is to be enforced pursuant to the social services law, the court shall establish the amount of retroactive child support and notify the parties that such amount shall be enforced by the support collection unit pursuant to an execution for support enforcement as provided for in the civil practice law and rules, or in such periodic payments as would have been authorized had such an execution been issued. In such case, the court shall not direct the schedule of repayment of retroactive support. The court shall not consider the misconduct of either party but shall make its award for child support.

The Supreme Court properly directed the complainant to pay the sum of $1,666, representing arrears of his pro rata share of day care expenses for the parties’ daughter.

Children depend on their family members to take care of their needs because they don’t have the means yet to provide for themselves. A Suffolk County Family Lawyer together with a Suffolk County Child Support Attorney can help you make sure that your kids will be provided for. Stephen Bilkis and Associates also offer the services of a Suffolk County Abuse and Neglect Lawyer.

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