Opinion
2015-05737 (Docket Nos. V-10503-13/13A V-10503-13/13B).
03-23-2016
In the Matter of Tracy DeCILLIS, appellant, v. Thomas DeCILLIS, respondent. (Proceeding No. 1) In the Matter of Thomas DeCillis, respondent, v. Tracy DeCillis, appellant. (Proceeding No. 2).
Bryan L. Salamone & Associates, P.C., Melville, N.Y. (Jonathan Tatun of counsel), for appellant. Thomas M. DeCillis, named herein as Thomas DeCillis, Smithtown, N.Y., respondent pro se.
Bryan L. Salamone & Associates, P.C., Melville, N.Y. (Jonathan Tatun of counsel), for appellant.
Thomas M. DeCillis, named herein as Thomas DeCillis, Smithtown, N.Y., respondent pro se.
Opinion
Appeal from an order of the Family Court, Suffolk County (Colleen M. Fondulis, Ct.Atty.Ref.), dated May 8, 2015. The order, insofar as appealed from, without a hearing, denied the mother's cross petition for an award of an attorney's fee in the sum of $21,634.
ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and the mother's cross petition for an award of an attorney's fee in the sum of $21,634 is granted.
The Family Court has the authority to award an attorney's fee in custody proceedings when warranted under the circumstances of the case (see Family Ct. Act § 651[b]; Domestic Relations Law § 237[b]; Matter of Fend Lucy Luo v. Yang, 104 A.D.3d 852, 963 N.Y.S.2d 266; Matter of O'Neil v. O'Neil, 193 A.D.2d 16, 19–20, 601 N.Y.S.2d 628). An award of an attorney's fee “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). Under the circumstances of this case, including the relative merits of the parties' positions and their respective financial circumstances, the Family Court improvidently exercised its discretion in denying the mother's cross petition for an award of an attorney's fee (see Matter of Tinger v. Tinger, 108 A.D.3d 569, 570, 968 N.Y.S.2d 573; Terranova v. Terranova, 99 A.D.3d 788, 789, 951 N.Y.S.2d 886; Matter of Sullivan v. Sullivan, 40 A.D.3d at 867, 836 N.Y.S.2d 259).
ENG, P.J., MASTRO, LEVENTHAL and MILLER, JJ., concur.