Opinion
April 6, 1979
Appeal from the Erie Supreme Court.
Present — Dillon, P.J., Simons, Hancock, Jr., Callahan and Moule, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Appellant seeks review of an award pursuant to section 237 Dom. Rel. of the Domestic Relations Law to his former wife of $6,500 counsel fees and $1,460.95 disbursements for her appeal of the custody provisions of a judgment rendered in consolidated habeas corpus and divorce proceedings (Bistany v. Bistany, 66 A.D.2d 1026). Considering all of the relevant factors, including respondent's lack of success on appeal (see Salk v. Salk, 57 A.D.2d 519; Patron v. Patron, 53 A.D.2d 822, app dsmd 40 N.Y.2d 582); the time spent by her attorneys in preparation and presentation of the appeal; and the fact that respondent has the financial ability to bear some portion of her legal expenses (see La Porte v. La Porte, 60 A.D.2d 966; Martin v Martin, 28 A.D.2d 897), the award should in the exercise of discretion be reduced to $3,500 plus disbursement of $1,460.95. We reject appellant's argument, based on the line of cases in the First Department (Thorne v. Thorne, 66 A.D.2d 397; Winter v Winter, 39 A.D.2d 69, affd 31 N.Y.2d 983; Kann v. Kann, 38 A.D.2d 545), that we should deny respondent recoupment because she paid $6,000 to her attorneys in advance. We agree with the view of the Second Department that "there is [no] impediment to reimbursement to a wife of counsel fees advanced by her which the court later finds the husband should have paid." (Ross v. Ross, 47 A.D.2d 866; see Schwartz v. Schwartz, 50 A.D.2d 877; Press v. Press, 49 A.D.2d 603). The parties should pay for their own legal expenses and costs in connection with the instant appeal.