Opinion
919 CA 19–00121
12-20-2019
Colin BRINSON, Plaintiff–Respondent, v. Melissa BRINSON, Defendant–Appellant. Melissa Brinson, Petitioner–Appellant, v. Colin Brinson, Respondent–Respondent.
HAWTHORNE & VESPER, PLLC, BUFFALO (TINA M. HAWTHORNE OF COUNSEL), FOR DEFENDANT–APPELLANT AND PETITIONER–APPELLANT. DEBORAH J. SCINTA, ORCHARD PARK, FOR PLAINTIFF–RESPONDENT AND RESPONDENT–RESPONDENT.
HAWTHORNE & VESPER, PLLC, BUFFALO (TINA M. HAWTHORNE OF COUNSEL), FOR DEFENDANT–APPELLANT AND PETITIONER–APPELLANT.
DEBORAH J. SCINTA, ORCHARD PARK, FOR PLAINTIFF–RESPONDENT AND RESPONDENT–RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by vacating the award of attorney's fees and as modified the order and judgment is affirmed without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: Defendant-petitioner (petitioner) appeals from an order and judgment that, inter alia, granted in part her petition seeking a downward modification of her child support obligation on the grounds that the parties' oldest child was emancipated and that she had lost her job; dismissed her supplemental petition seeking a downward modification of her child support obligation on the ground that two of the parties' other children were constructively emancipated; and granted in part the application of plaintiff-respondent (respondent) seeking, inter alia, child support arrears and counsel fees as provided for by the parties' judgment of divorce.
We reject petitioner's contention that Supreme Court was required to apply a credit against her arrears for certain college expenses. "A credit against child support for college expenses is not mandatory but depends upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries" ( Matter of DelSignore v. DelSignore , 133 A.D.3d 1207, 1208, 18 N.Y.S.3d 805 [4th Dept. 2015] [internal quotation marks omitted]; cf. Wortman v. Wortman , 11 A.D.3d 604, 607, 783 N.Y.S.2d 631 [2d Dept. 2004] ). Petitioner failed to preserve her further contention that certain college expenses were duplicative of her child support obligation (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ). In any event, her contention is without merit inasmuch as respondent was required to maintain the home for all four of the parties' children, including the oldest child, who returned home during school breaks (see DelSignore , 133 A.D.3d at 1208, 18 N.Y.S.3d 805 ; Juhasz v. Juhasz [Appeal No. 2], 92 A.D.3d 1209, 1212, 939 N.Y.S.2d 675 [4th Dept. 2012] ).
Contrary to petitioner's contention that she was denied her right to counsel, petitioner did not have a right to counsel in this matter (see Matter of Leonardo v. Leonardo , 94 A.D.3d 1452, 1454, 942 N.Y.S.2d 728 [4th Dept. 2012], lv denied 19 N.Y.3d 807, 2012 WL 2401528 [2012] ; Matter of Commissioner of Social Servs. of City of N.Y. v. Remy K.Y. , 298 A.D.2d 261, 262, 748 N.Y.S.2d 732 [1st Dept. 2002] ; see generally Matter of Kissel v. Kissel , 59 A.D.2d 1036, 1036, 399 N.Y.S.2d 781 [4th Dept. 1977] ) inasmuch as respondent withdrew his request that she be held in contempt (see generally Kissel , 59 A.D.2d at 1036, 399 N.Y.S.2d 781 ).
We reject petitioner's further contention that, because she disputed the alleged arrears, she was necessarily entitled to a hearing prior to the court's determination with respect thereto. Petitioner failed to raise a material issue of fact that would warrant a hearing inasmuch as she did not contest respondent's calculation of the arrears and instead contended only that he provided certain untimely and insufficient documentation of those arrears (cf. Burroughs v. Burroughs , 262 A.D.2d 993, 993, 692 N.Y.S.2d 276 [4th Dept. 1999] ).
Petitioner also contends that she was entitled to a hearing because two of the parties' children were constructively emancipated. We reject that contention. "[U]nder the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support" ( Matter of Oneida County Dept. of Social Servs. v. Christman , 125 A.D.3d 1409, 1410, 3 N.Y.S.3d 222 [4th Dept. 2015] [internal quotation marks omitted]; see Matter of Burr v. Fellner , 73 A.D.3d 1041, 1041, 900 N.Y.S.2d 656 [2d Dept. 2010] ). Petitioner's contention is incorrect as a matter of law with respect to one of the children, who was only 16 years old and was therefore not " ‘of employable age’ " ( Foster v. Daigle , 25 A.D.3d 1002, 1005, 809 N.Y.S.2d 228 [3d Dept. 2006], lv dismissed 6 N.Y.3d 890, 817 N.Y.S.2d 624, 850 N.E.2d 671 [2006] ). With respect to the other child, petitioner failed to establish, or even to allege, that the child had abandoned a relationship with petitioner by refusing all contact and visitation with her (see Christman , 125 A.D.3d at 1410, 3 N.Y.S.3d 222 ). We agree with petitioner, however, that the court should have conducted an evidentiary hearing before granting that part of respondent's application seeking an award of his attorney's fees inasmuch as respondent failed to furnish sufficient documentation of the value of the services performed by the attorney. We conclude that this issue is preserved inasmuch as petitioner contested previous requests for attorney's fees, at the final appearance respondent first requested the $3,000 in attorney's fees but submitted no supporting documentation, and petitioner was not afforded an adequate opportunity to dispute the same (see generally CPLR 5501[a][3] ). " ‘Attorney's fees should not be awarded without conducting a hearing or requiring proof by affidavit substantiating the attorney's fees requested’ " ( Moses v. Moses , 231 A.D.2d 850, 850, 647 N.Y.S.2d 318 [4th Dept. 1996] ; see Matthews v. Matthews , 238 A.D.2d 926, 927, 661 N.Y.S.2d 115 [4th Dept. 1997] ). An award for attorney's fees is improper absent documentation of the submitted value of the services performed (see Johnston v. Johnston , 63 A.D.3d 1555, 1556, 881 N.Y.S.2d 560 [4th Dept. 2009] ; Marshall v. Marshall , 1 A.D.3d 323, 324, 767 N.Y.S.2d 54 [2d Dept. 2003] ; cf. Ackerman v. Midura , 145 A.D.3d 647, 648, 43 N.Y.S.3d 424 [2d Dept. 2016] ). Thus, we conclude that "it was an abuse of discretion to award the amount of counsel fees requested, without affording [petitioner] the opportunity to elicit further information on the reasonable value of those services" ( Matter of Kobel v. Martelli , 112 A.D.2d 756, 757, 492 N.Y.S.2d 256 [4th Dept. 1985] ). We therefore modify the order and judgment by vacating the award of attorney's fees, and we remit the matter to Supreme Court for a determination regarding attorney's fees based upon proper proof (see Matthews , 238 A.D.2d at 926, 661 N.Y.S.2d 115 ; Moses , 231 A.D.2d at 850, 647 N.Y.S.2d 318 ).
We have reviewed petitioner's remaining contentions and conclude that none requires reversal or further modification of the order and judgment.