Opinion
June 12, 1975
Order, Supreme Court, New York County, entered December 23, 1974, which granted petitioner's application for counsel fees and litigation expenses, unanimously modified, on the law and the facts and in the exercise of discretion, to the extent of reducing counsel fees to $10,000 and directing payment thereof in instalments, and otherwise affirmed, without costs and without disbursements. On the record before us, giving due consideration to all of the relevant circumstances, the award of counsel fees in the order appealed from was excessive and should be reduced to the extent indicated. While a substantial amount of time was expended by counsel, and the request was in excess of twice the sum now awarded, a substantial amount of time expended by counsel for both parties was in the nature of tactics rather than substance. The defendant challenges the counsel fee pursuant to subdivision (b) of section 237 Dom. Rel. of the Domestic Relations Law on the basis that it can "only be made in the order or judgment by which the particular application or proceeding is finally determined." However, the application was initially made in the habeas corpus custody proceeding. (2 Foster-Freed, Law and the Family, § 29:31.) Upon stipulation it was agreed that the question of counsel fees would be decided on affidavits to be submitted by way of motion. The defendant demonstrates that his financial circumstances have changed, and that an opportunity should be given to him to make payment in an amount and manner commensurate with his current actual ability to pay. Settle order on notice, making provision therefor with respect to payment of the afore-mentioned counsel fees.
Concur — Stevens, P.J., Markewich, Kupferman, Murphy and Lupiano, JJ.