IN RE: a Proceeding for Support under Article IV of the Family Court Act K.V. (2026)

Before this Court is an objection filed by counsel for the Petitioner, K.V. (hereinafter "Petitioner"), against the Respondent, D.V. (hereinafter "Respondent"), dated June 8, 2026 (hereinafter "Objection #003"). Petitioner objects to the Order-General dated May 12, 2026, denying Petitioner's request for counsel fees and declining to grant/issue a Qualified Domestic Relations Order ("QDRO"). A rebuttal was received from counsel for the Respondent on June 12, 2026.

Based on the review of the court file, pertinent orders, the audio recordings of the proceedings, as well as relevant statutes and case law, Objection #003 is GRANTED, and the matter is remanded to the Support Magistrate.

I. PROCEDURAL HISTORY

On May 29, 2018, Petitioner filed a Petition for Enforcement of an Order of Support, F-12376-18/18A (hereinafter "Enforcement Petitioner") alleging that the Respondent failed to comply with their Divorce Judgment.¹ On July 9, 2018, the Enforcement Petition was put forth to Support Magistrate Elizabeth Shamahs for the first appearance. Petitioner, Respondent, and their respective counsel appeared, and issue was joined. Counsel for Petitioner clarified that they were seeking a finding of willfulness against the Respondent due to his failure to comply with the Divorce Judgment. The matter was then adjourned to September 17, 2018, for a hearing on the Enforcement Petition.

On June 25, 2018, the Respondent filed a petition for Modification of an Order of Support pursuant to docket number F-12376-18/18B (hereinafter "Downward Modification Petition"). Specifically, the Respondent sought a downward modification of his support payments as there had been a substantial change in income since the entry of the Divorce Judgment. The Downward Modification Petition was heard on September 17, 2018, along with the Enforcement Petition. Petitioner, Respondent, and their respective attorneys appeared, and issue was joined on the Downward Modification Petition. Support Magistrate Shamahs then began the fact finding as to the Downward Modification Petition. The Downward Modification Petition fact-finding continued on November 7, 2018, November 14, 2018, and January 23, 2019. The fact-finding on the Enforcement Petition began and was completed on January 23, 2019. On April 11, 2019, Support Magistrate Shamahs granted the Respondent's Downward Modification Petition and determined he was not willful in nonpayment as he lacked the ability to pay for such. See Findings of Fact, dated April 11, 2019, F-12376-18/18A. However, Support Magistrate Shamahs entered an Entry Money Judgement in favor of the Petitioner, specifically that the Respondent paid to pay the sum of $4,264.77 plus interest. See Order Entry Money Judgement, dated April 15, 2019, F-12376-18/18A.

On May 13, 2019, counsel for the Petitioner filed an objection to the final orders entered under docket number F-12376-18/18B (hereinafter "Objection #001), arguing that the orders were not supported by the evidence. The Honorable Keith Brown reviewed and granted the Petitioner's objection and both petitions were remanded for de novo hearings. See Decision and Order Upon Review of Objections to the Support Magistrate's Decision, dated June 28, 2019, F-12376-18/18A.

On August 27, 2019, both petitions were before Support Magistrate Brittany Bisnott. The matters were then adjourned to October 8, 2019, for a willfulness hearing. On October 8, 2019, Petitioner, Respondent, and their respective attorneys appeared, and the willfulness hearing began. The willfulness hearing was then adjourned to November 4, 2019, December 9, 2019, February 4, 2020, March 4, 2020, March 13, 2020, July 27, 2021  ² and August 9, 2021. On August 9, 2021, the matter was assigned to Support Magistrate Adele Harris as Support Magistrate Shamahs was no longer presiding in Kings County Family Court. Petitioner's counsel requested the hearing continue with Magistrate Shamahs as a mistrial would prejudice the Petitioner. Support Magistrate Harris reserved decision on the issue and adjourned to September 3, 2021. On September 3, 2021, Support Magistrate Harris denied the request to continue the willfulness hearing on the Enforcement Petition and declared a mistrial. The willfulness hearing then began on September 16, 2021. The willfulness hearing continued on February 3, 2022, February 7, 2022, April 20, 2022, September 29, 2022, November 2, 2022, and November 21, 2022. Support Magistrate Harris found the Respondent in willful violation of the Order of Support. See Order of Disposition (Violation of Support Order), dated December 16, 2022, F-12376-18/18A; Order (Entry of Money Judgment), dated December 16, 2022, F-12376-18/18A. Support Magistrate Harris recommended an order of commitment for three (3) months and a purge amount of $4,830.00. The matter was then heard by the Honorable Alan Beckoff for the confirmation hearing. Honorable Beckoff confirmed the findings of willfulness, and the Respondent paid the purge amount to avoid incarceration.

On December 26, 2023, counsel for the Petitioner filed an Order to Show Cause (Motion #001) seeking specifically at issue a Qualified Domestic Relations Order ("QDRO") from the Respondent's AXA Equi-Vest account and counsel fees. The motion was then adjourned to March 4, 2024, for initial appearance. On March 4, 2024, counsel for the Petitioner, Petitioner, and the Respondent appeared with Support Magistrate Harris. Counsel for the Petitioner argued based on the willfulness finding the Respondent was required to pay counsel fees pursuant to FCA Section 438(b). Additionally, counsel for the Petitioner requested a QDRO to direct AXA Equi-Vest to release the total amount of unpaid child support from the accounts. The Respondent argued that he had lost his job and is on public assistance, and as such he is unable to pay any counsel fees. Further, the Respondent requested an opportunity to obtain an attorney. Support Magistrate Harris denied the Respondent's adjournment request and granted the Petitioner's motion. See Order on Motion (Motion #001) dated March 22, 2024, F-12376-18/18A.

On April 19, 2024, Respondent filed an Objection to the Findings of Fact on the Motion dated March 4, 2024 (hereinafter "Objection #002"). In Objection #002 Respondent argues that Support Magistrate Harris did not afford him an opportunity to retain counsel or a full evidentiary hearing on the request for attorney fees or the QDRO. Objection #002 was assigned to the Honorable Alicea Elloras-Ally and such was granted and remanded to the support magistrate. Specifically, the Court indicated Support Magistrate Harris did not consider the Respondent's ability to pay, reviewed the nature and extent of the services rendered by counsel for the Petitioner, the reasons for the duration of the underlying proceedings, and review of the various court dates to ensure the requested fees did not include hearing dates that were only for the Downward Modification Petition. In regard to the QDRO request, the court found Support Magistrate Harris did not indicate the amount or percentage of the benefits to be paid by the payee or the number of payments or the period to which the order applies to. Further, the Respondent expressed confusion as to the QDRO and requested an adjournment to seek legal counsel, the court notes an adjournment should have been granted to ensure the Respondent had an opportunity to obtain counsel and such adjournment would not have prejudiced the Petitioner or her counsel. The Court ordered that a hearing be held as to the reasonableness of the counsel fees taking in the above considerations, vacated the QDRO order to allow the Respondent a chance to be heard, and if a QDRO is granted the Support Magistrate is to ensure it included detailed information.

On May 16, 2024, the matter was remanded and re-assigned to Support Magistrate Harris. The matter was adjourned to October 10, 2024, based on counsels' availability. On October 10, 2024, counsel and the Petitioner appeared and the matter was adjourned to April 10, 2025. On March 14, 2025, the April 10, 2025, date was vacated due to the unavailability of counsel and adjourned to October 15, 2025.

On October 15, 2025, Petitioner, Respondent, and their respective counsel appeared to discuss proposed exhibits. The matter was then adjourned to November 24, 2025. On November 24, 2025, Petitioner, Respondent, and their respective counsel appeared for a hearing on Motion #001. Support Magistrate Harris took judicial notice of the Enforcement Petition, Decision after Objection dated June 28, 2019, by Honorable Brown; Order Entry Money Judgement dated January 23, 2019; Findings of Fact dated November 11, 2022; Order of Disposition dated November 21, 2022; Order dated December 23, 2022, by Honorable Beckoff; and a letter from Signature Bank. Petitioner testified that she retained counsel on June 19, 2018, for the Enforcement Petition and signed a retainer for such. Petitioner testified that the agreement with counsel was modified in 2019 and 2022. Petitioner notes that she was charged $500.00 per court appearance, no hourly charge, and $1,600.00 for order to show causes and objections. Petitioner testified that the $500.00 fee included phone calls, text messages, document preparation, and the actual court appearance. Petitioner testified since the November 11, 2022, Order she received one (1) payment from the Respondent and had only paid her attorney $1,600.00. Petitioner testified she did not expect the court appearances to take many years and expected to pay more than $1,600.00. Petitioner testified she was not charged for some appearances as they were "straight adjournments", but knew she owed her attorney for 22 court appearances. Petitioner testified that she was not billed per item, that it was a package, and it was the same price per appearance.

Counsel for the Petitioner then admitted into evidence Motion #001; retainer agreement; MetLife Insurance Policy and application; court appearances from June 19, 2018, through November 15, 2025; and Objection #001. Counsel for the Petitioner then testified that his current rate $350.00 per hour and noted this was low based on his experience. He testified regarding his experience and types of cases he litigated. He testified that he charged $600.00 for Objection #001. He testified he charged $750.00 for Motion #001 but it took 8 to 10 hours to complete, however, he attributed the lower rate to having compassion and considering that the Petitioner has a disabled child. He testified that the Respondent has made no payments towards child support or legal fees. He testified there had been extensive testimony before Support Magistrate Shamahs and Bisnott and such delays of the proceedings were not at the fault of the Petitioner. He testified that the legal fees being sought were "quite reasonable." He testified he kept contemporaneous notes and was seeking legal fees only as to the Enforcement Petition. Finally, he testified that he did not bill for approximately 4-5 court appearances.

Counsel for the Respondent submitted into evidence Respondent's 2024 W-2. Respondent testified that up until in or around 2018 he was paying the Petition $750.00 monthly and then paid $539.00 monthly prior to being brought to Court. Respondent testified that he earns $20,800.00 and has no other source of income. He testified he paid the purge amount of $4,830.00 in or around December 2023. He testified he could not recall prior earnings of $40,000-$50,000 and currently works 5 hours per day. He testified he did not know his hourly rate and is not a manager. The Support Magistrate then reserved decision.

On May 12, 2026, Support Magistrate Harris denied Motion #001 in its entirety. See Order — General dated May 12, 2026, F-12376-18/18A. Support Magistrate Harris also issued a Finding of Fact noting that whether to award counsel fees the court may consider the merits of the parties' position, whether the parties engaged in conduct or took positions that resulted in unnecessary litigation and delays, the parties' ability to pay, the complexity of the issues, nature and extent of the services requires, and the reasonableness of the fees requested. Support Magistrate Harris only noted that Petitioner's counsel did not provide a written, itemized billing statements/invoices that were provided to the Petitioner every 60 days, the case was relatively straightforward proceedings; Petitioner's counsel's expertise was not in question; neither party engaged in conduct that resulted in delays; and the Respondent is unable to pay counsel fees because of his limited income. Further, Support Magistrate Harris did not issue a QDRO because Petitioner did not present a sufficiently detailed QDRO that contains clear and specific language approved by the relevant financial institution. See Findings of Fact dated April 29, 2026, F-12376-18/18A.

This objection followed.

II. ANALYSIS & DECISION

After review and consideration of the record, including listening to the mechanical recordings of the proceedings, the objection is granted.

A. FAMILY COURT JUDGE AUTHORITY TO REVIEW OBJECTIONS

Family Court Act § 439(a) empowers support magistrates "to hear, determine and grant any relief within the powers of the court" in proceedings properly before them. Family Court Act § 439(e) provides that the support magistrate's determination "shall include findings of fact and a final order." The parties are permitted by the statute to submit "specific written objections" to the order for "review" by a Family Court judge within the time frames set forth in the statute. Pursuant to F.C.A. § 439(e), "specific objections to such order may be filed by either party with the court within thirty dates after receipt of the order in court or by personal service, or, if the objecting party or parties did not receive the order in court or by personal service, thirty-five days after mailing of the order to such party or parties."

The Family Court judge's review of objections is a narrow one. "The hearing of objections in Family Court is the equivalent of an appellate review." Musarra v. Musarra, 28 AD3d 668, 668 (2d Dept. 2006). It is the support magistrate, and not the reviewing judge, who was present at the evidentiary hearing and who was, therefore, uniquely able to evaluate both the evidence and the credibility and demeanor of witnesses prior to making an order. Given this, the scope of the Family Court judge's "review" is confined to an inquiry whether the support magistrate has made the necessary findings of fact and an order, and whether, upon review of the record, there is a reasonable basis for the support magistrate's order. In reviewing a determination made by the support magistrate, "great deference should be given to the determination of the support magistrate, who was in the best position to hear and evaluate the evidence as well as the credibility of the witnesses." Khovov v. Khovov, 193 AD3d 860, 861 (2d Dept. 2021).

B. PROOF OF SERVICE AND TIMELY FILING

Written objections to a final order of a support magistrate may be filed by either party with the court within thirty-five days after mailing of the order to the parties. NY Fam. Ct. Act § 439(e). New York State Family Court Act Section 439(e) provides, in pertinent part, that "[a] party filing objections shall serve a copy of such objections upon the opposing party" and that "[p]roof of service upon the opposing party shall be filed with the court at the time of filing of objections and any rebuttal." In the instant matter the objection was timely filed and served.

C. COUNSEL FEES

Family Court Act ("FCA") section 438(b) reads in relevant part, "[i]n any proceeding for failure to obey any lawful order compelling payment of support of a spouse or former spouse and children or of children only, the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney presenting the petition or person on behalf of the children." (emphasis added) FCA section 453(3) reads, "[u]pon a finding by the court that respondent has willfully failed to object any lawful order of support, the court shall order respondent to pay counsel fees to the attorney representing petitioner pursuant to section four hundred thirty-eight of this act " (emphasis added) While the issuance of attorney fees may be mandated under FCA sections 438(b) and 454(3), the amount is to be determined after consideration of such factors as "the parties' ability to pay, the nature and extent of services rendered, the complexity of the issues involved and the reasonableness of the fees under the circumstances." Mussarra v. Mussara, 28, AD3d 668 (2d Dept. 2006).

The Support Magistrate made findings that the Respondent is "under-employed in that he works part-time hours and has presented no proof that he is unable to work full-time or that he is diligently looking for full-time employment. The Court also found that Respondent has access to financial resources from his family members and has derived financial benefits from his family members including international travel/vacation." It would appear from this section of the decision that the Support Magistrate has found that the Respondent possesses an ability to pay, although not outright stated.

In terms of the nature and extent of the services required and the reasonableness of counsel's performance and the fees requested, the Support Magistrate made it exceedingly clear that Mr. Bernstein's 40+ years of expertise is not in question, however, in denying the request for counsel fees did so based upon an inability to determine the fees absent an itemized billing statement or invoices. Mr. Bernstein and his client, the Petitioner, appear to have entered into a flat fee payment agreement wherein Mr. Bernstein billed $500.00 per court appearance, which included all aspects such as preparation, document preparation, and client contact.

On November 24, 2025, the Petitioner testified that she retained counsel on June 19, 2018, and that pursuant to their retainer agreement she was being billed $500.00 per court appearance with no hourly charges. She testified that she paid $1,600 for the Order to Show Cause and the prior Objection. She testified that she lived with the Respondent from October 8, 2005, to October 2008 and during that time and even after separation the Respondent owned a few florist shops with his brothers and that she herself used to work there on the holidays. She testified that Respondent had retirement accounts during the marriage and also during the divorce proceedings in 2014. She testified she never received bills from Mr. Bernstein but that she paid $1,600.00 via check. She further testified that she was not charged for some appearances where the matter was simply adjourned and that she owes counsel payment for 22 court appearances.

Counsel testified as to his expertise and experience. He further testified that he charged $600.00 for the objection filed in May of 2019. He further stated that he charged $750.00 for the order to show cause filed in December of 2023 for counsel fees and a Qualified Domestic Relations Order and that it took him 8-10 hours to draft. Counsel testified that he took contemporaneous notes and still has them and that his requested fees were associated only with the violation petition. He testified that he did not bill the Petitioner for four or five court appearances.

No findings were made that Petitioner was not credible in her testimony. The Petitioner stated that she paid $1,600 for the Order to Show Cause and the prior Objection and did so via check and owes payment for 22 court appearances. There is no indication that the Magistrate reviewed the court dates in the court's electronic case management system to 1) ascertain the veracity of the statements, 2) the length of the court appearances to engage in analysis of reasonableness, or 3) whether the court appearances were for the modification or the violation. This is information is well within the court's ability to verify.

Flat Fee Arrangements

Rule 1.5 of the New York Rules of Professional Conduct (the "Rules") — the fee rule — prohibits a lawyer from charging a fee that is illegal or excessive, and it explicitly recognizes fixed fees in its listing of the considerations that determine whether a fee is excessive. See Rule 1.5(a)(8) ("whether the fee is fixed"). See also NY State 942 ¶ 11 (2012) (whether a flat fee is excessive depends on the facts; a flat fee is not necessarily excessive but neither is it necessarily reasonable); NY City 2015-2 (a flat fee is ethically permissible if it satisfies the other requirements of Rule 1.5). A fixed fee is often appropriate in matters frequently performed by the lawyer, where it is possible for the lawyer to accurately estimate the cost of performing the services. It is beneficial to the client since the client knows in advance the cost of the services and is not subject to inefficiencies that may increase the fee in the case of hourly billing. As in all representations, the lawyer should communicate to the client the services the lawyer will perform for the fixed fee. See Rule 1.5(b) (the lawyer shall communicate the scope of the representation). See, NY Ethics Opinion 1202 (2020).

The charging of a flat fee on its face is not ethically impermissible, nor did the Support Magistrate find that it was. The fee charged is also quite modest and included, not just the court appearance, but also the preparation for the appearance and communication with client. This Court would venture that if every minute of preparation, travel, client communication, and representation at Court appearances were billed the total cost for a matter that began in 2018 and continues to 2026 would be considerably higher.

The question then turns to reasonableness. The Court has the records of the appearances, the time spent during the appearances, has agreed that the level of expertise of the attorney is not being questioned, has not disagreed with the customary rates charged by attorneys in the New York City Metro Area practicing in this field of law, has the Petitioner's testimony that she paid $1,600 via check for an order to show cause/motion and the objection, counsel's testimony that he spent 8-10 hours on the order to show cause alone, no finding of an inability to pay by the Respondent, and Petitioner's unequivocal testimony that she owes counsel for twenty-two court appearances. The Court has sufficient information to make a determination as to reasonableness of fees.

D. QUALIFIED DOMESTIC RELATIONS ORDER

The Court should specify exactly what it requires for the QDRO to be signed so that counsel can submit same expeditiously and payment to a Petitioner who has prevailed in her 2018 petition that ultimately found the Respondent in willful violation of a court order can receive the long-awaited funds.

III. CONCLUSION

Accordingly, the objection is granted, and the matter is remanded to the Support Magistrate for further proceedings if the Magistrate feels same are required for her decision or amendment of the Findings of Fact. If being calendared same must be done within thirty (30) days of the date of this Order.

This constitutes the decision and order of the Court.

Accordingly, it is

ORDERED, that Objection #003 is granted.

IT IS FURTHER ORDERED, that the remaining issues are remitted to the Support Magistrate for further consideration as she sees fit.

IT IS FURTHER ORDERED, that the parties, counsel, and the Support Magistrate be notified of this decision.

Dated: July 13, 2026

Brooklyn, NY

ENTER:

HON. ROSA MARIA ASTUTO, J.F.C.

FOOTNOTES

1.   Kings County Supreme Court Judgement of Divorce, Index No. 56855/08 (hereinafter "Divorce Judgement"). The Divorce Judgement stated in relevant part, that the Respondent was directed to pay $750.00 monthly directly to the Petitioner. Additionally, the Respondent was chargeable with 50% of the unreimbursed healthcare expenses with a cap of $900.00 monthly and was to maintain his two (2) current life insurance policies under MetLife in the amount of $500,000 each, listing the children as irrevocable beneficiaries.

2.   On July 27,2021 this matter was scheduled to be heard by this Judge when she was a Support Magistrate in Kings County Family Court. The matter did not come on the record as Counsel Bernstein and his client had difficulty logging in and Counsel Green, then counsel for the Respondent, did not appear as he had not logged this date in his calendar. No conflict exists in this Judge deciding this objection as in actuality this Judge never heard the matter.

Rosa Maria Astuto, J.