IN RE: Kimmarie SALVATI (1997)

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from so much of an order of the Family Court, Queens County (Lubow, J.), dated June 21, 1996, as denied those branches of his motion which sought an award of counsel fees for services rendered in connection with his prior appeal to this court and for services rendered in opposing the mother's motion for leave to appeal to the Court of Appeals.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Family Court, Queens County, in accordance herewith for consideration of those branches of the father's motion which sought an award of counsel fees for services rendered in connection with his prior appeal to this court and for services rendered in opposing the mother's motion for leave to appeal to the Court of Appeals.

 Contrary to the conclusion reached by the Family Court, there is nothing in the language of Domestic Relations Law § 237(b) which precludes an application for an award of appellate counsel fees after an appeal has been decided.   Consequently, the Family Court erred in denying as untimely that branch of the father's motion which sought counsel fees for the prosecution of his successful appeal to this court without reaching the merits of his application.

 Further, the Family Court did not consider all of the relevant circumstances of this case, including the parties' respective financial positions, in determining that branch of the motion which sought counsel fees for opposing the mother's motion for leave to appeal to the Court of Appeals (see, DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 524 N.Y.S.2d 176, 518 N.E.2d 1168;  Brancoveanu v. Brancoveanu, 177 A.D.2d 614, 576 N.Y.S.2d 321).   Accordingly, we remit those branches of the motion to the Family Court for determination (see, O'Brien v. O'Brien, 66 N.Y.2d 576, 590, 498 N.Y.S.2d 743, 489 N.E.2d 712;  Breen v. Breen, 90 A.D.2d 509, 454 N.Y.S.2d 1022).

The father's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.