IN RE: Scott SILVERSTEIN

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Scott SILVERSTEIN, respondent, v. Kim SILVERSTEIN, appellant.

Decided: March 31, 2009

A. GAIL PRUDENTI, P.J., ROBERT A. SPOLZINO, DAVID S. RITTER, and FRED T. SANTUCCI, JJ. Jay Landa, Garden City, N.Y., for appellant. Sari M. Friedman, P.C., Garden City, N.Y. (Rachel S. Silberstein of counsel), for respondent.

In a child support proceeding pursuant to Family Court Act article 4, the mother appeals from so much of an order of the Family Court, Suffolk County (Budd, J.), dated March 5, 2008, as denied her objections to so much of an order of the same court (Raimondi, S.M.), dated December 3, 2007, as denied her motion for an award of an attorney's fee in the sum of $43,680.

ORDERED that the order dated March 5, 2008, is modified, on the law, the facts and in the exercise of discretion, by deleting the provision thereof denying the mother's objection to so much of the order dated December 3, 2007, as denied that branch of her motion which was for an award of an attorney's fee in the sum of $15,000 and substituting thereafter a provision sustaining that objection and awarding the mother an attorney's fee in the sum of $15,000;  as so modified, the order dated March 5, 2008, is affirmed, with costs to the mother.

 “In a matrimonial action, an award of an attorney's fee should be based, inter alia, on the relative financial circumstances of the parties and the relative merit of their positions” (Ciociano v. Ciociano, 54 A.D.3d 797, 797, 863 N.Y.S.2d 766).   The decision to award an attorney's fee lies in the discretion of the trial court (see DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168;  Morrissey v. Morrissey, 259 A.D.2d 472, 473, 686 N.Y.S.2d 71).   Here, however, the Family Court exercised that discretion improvidently in denying the mother's motion for an attorney's fee in the sum of $43,680, after the father's petition for a downward modification in child support had been denied.   Considering the disparity in the parties' incomes and the circumstances under which the mother incurred the subject fees, the Family Court should have awarded the mother a reasonable attorney's fee (see O'Shea v. O'Shea, 93 N.Y.2d 187, 193-194, 689 N.Y.S.2d 8, 711 N.E.2d 193;  Matter of Nieves-Ford v. Gordon, 47 A.D.3d 936, 937, 850 N.Y.S.2d 588).   The matter need not be remitted for a hearing (see DeJesus v. DeJesus, 264 A.D.2d 436, 694 N.Y.S.2d 436), and the mother should have been awarded an attorney's fee in the sum of $15,000 (see Schiffer v. Schiffer, 55 A.D.3d 714, 716, 866 N.Y.S.2d 235).

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