Opinion
June 29, 1970
In a filiation proceeding, petitioner appeals from two orders of the Family Court, Queens County, dated July 18, 1969 and September 17, 1969, respectively, the first granting her counsel fees of $700 for the trial and hearing and $500 for opposing an appeal from an order of filiation, plus printing expenses, and the second denying her motion for counsel fees for opposing an appeal from a support order. Order dated July 18, 1969 affirmed, without costs, and order dated September 17, 1969 reversed, without costs, and petitioner is granted $500 counsel fees for services rendered for opposing the appeal from the order of support. In our opinion it was an improvident exercise of discretion to decline to allow petitioner counsel fees for services to be rendered in connection with respondent's appeal from the order of support. Section 438 FCT of the Family Court Act provides, inter alia, that "In any proceeding * * * by a person on behalf of children only * * * including an appeal under article ten the court may allow counsel fees at any stage of the proceeding, to the attorney representing the * * * person on behalf of children." In view of the fact that the Family Court granted petitioner counsel fees for services to be rendered in connection with the appeal from the order of filiation, it should similarly have granted such an allowance in connection with the appeal from the order of support, since it is not alleged that petitioner's financial condition or ability to pay in any way changed in the interim (cf. Matter of Jaeger v. Scherer, 24 A.D.2d 878; Matter of Giacoman v. Boer, 23 A.D.2d 737). Christ, P.J., Munder, Martuscello, Latham and Kleinfeld, JJ., concur.