Opinion
March 14, 1961
Order entered on December 13, 1960, denying plaintiff's motion for counsel fees, without prejudice to any right the plaintiff may have in a plenary action to recover for necessaries, unanimously reversed, on the law and on the facts, with $20 costs and disbursements to appellant, and motion remanded to Special Term for fixation of amount and awarding of counsel fees to plaintiff in connection with appeal from order of November 9, 1960. The plaintiff, by order to show cause, dated September 12, 1960, moved to punish respondent for contempt of court for violation of custody provisions of decree of divorce rendered by this court and entered February 7, 1958. Defendant cross-moved for order modifying custody and support provisions in decree of divorce. Following a hearing held on October 26, 27 and 28, 1960, the court rendered an order, entered November 9, 1960, denying motion of plaintiff to punish defendant for contempt on condition he return child of marriage to plaintiff in 24 hours and denying defendant's cross motion in all respects. Defendant thereafter appealed from said order of November 9, 1960, and the appeal has been argued and decided. ( 12 A.D.2d 603.) This motion for counsel fees was made by order to show cause, dated November 14, 1960, and denied without prejudice, and renewed by notice of motion dated November 30, 1960. An award for counsel fees contemplates prospective services and disbursements; and, thus, the court may not on motion award counsel fees for past services. Therefore, counsel fees may not be awarded on this motion to cover attorney's services and expenses rendered prior to the appeal. (See Brody v. Brody, 3 A.D.2d 992; Parkas v. Parkas, 263 App. Div. 367, 368; Martens v. Martens, 262 App. Div. 702, 703; Rosen v. Rosen, 18 Misc.2d 257.) It is clear, however, on the record that the plaintiff was entitled to an award of counsel fees in connection with and to defend the defendant's appeal from the order of November 9, 1960. (Civ. Prac. Act, §§ 1169, 1170, 1172-d; Fox v. Fox, 263 N.Y. 68.) The matter is, therefore, remanded to Special Term to fix the amount of counsel fees to be awarded to plaintiff in connection with the appeal for such services as were rendered after November 14, 1960. This determination, and the order to be rendered by Special Term pursuant hereto, are without prejudice to remedy of plaintiff, if any, by plenary action to recover for necessary and proper legal services rendered to her prior to November 14, 1960.
Concur — Valente, J.P., McNally, Stevens, Eager and Steuer, JJ.