Opinion
2018–00120 Docket No. F–11681–06/12I/12J
01-09-2019
In the Matter of Denise Ann BRADY, Respondent, v. Raymond A. WHITE, Appellant.
N. Scott Banks, Hempstead, N.Y. (Tammy Feman and Argun M. Ulgen of counsel), for appellant. Brian M. Collins, Melville, NY, for respondent.
N. Scott Banks, Hempstead, N.Y. (Tammy Feman and Argun M. Ulgen of counsel), for appellant.
Brian M. Collins, Melville, NY, for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDERORDERED that the order dated November 6, 2017, is affirmed, without costs or disbursements.
The underlying facts are set forth in our decision on a related appeal from an order of commitment dated January 28, 2016 (see Matter of Brady v. White, 168 A.D.3d 724, 92 N.Y.S.3d 144, 2019 WL 138477 [Appellate Division Docket No. 2018–03177; decided herewith] ). In the order appealed from here, the Family Court, in effect, confirmed so much of an order dated July 28, 2017, as, after a hearing, determined that the father was in willful violation of a prior order directing payment of child support and maintenance. The court also denied the father's objections to so much of the order dated July 28, 2017, as granted the mother's motion for an award of counsel fees in the sum of $16,275. In addition, the court denied the father's objections to a second order dated July 28, 2017, directing the entry of a money judgment in favor of the mother and against the father in the principal sum of $16,275.
Contrary to the father's contention, the Support Magistrate did not improvidently exercise her discretion in entertaining the mother's motion for counsel fees. Although the mother did not serve a notice of motion on the father, the father had notice of her request, submitted opposition to the motion, and was not prejudiced by the lack of service of a notice of motion. Under these circumstances, we agree with the Support Magistrate's determination to entertain the mother's motion (see Rappel v. Wincoma Homeowners Assn., 125 A.D.3d 833, 834, 4 N.Y.S.3d 276 ; Fugazy v. Fugazy, 44 A.D.3d 613, 614, 844 N.Y.S.2d 341 ).
Since the father's violation of the prior order directing the payment of child support and maintenance was willful (see Matter of Brady v. White, 168 A.D.3d 724, 92 N.Y.S.3d 144, 2019 WL 138477 [Appellate Division Docket No. 2018–03177 ; decided herewith] ), the Family Court was required by Family Court Act § 438(b) to award counsel fees to the mother (see Matter of Yuen v. Sindhwani, 137 A.D.3d 1155, 1157, 28 N.Y.S.3d 102 ; Matter of Rutuelo v. Rutuelo, 98 A.D.3d 518, 519, 949 N.Y.S.2d 173 ; Matter of Musarra v. Musarra, 28 A.D.3d 668, 669, 814 N.Y.S.2d 657 ). Under the circumstances, we agree with the Support Magistrate's determination that the award of $16,275 in counsel fees was reasonable (see Matter of Rutuelo v. Rutuelo, 98 A.D.3d at 519, 949 N.Y.S.2d 173 ; Matter ofMusarra v. Musarra, 28 A.D.3d at 669, 814 N.Y.S.2d 657 ).
The father's remaining contentions are not properly before this Court as they were not raised in his objections to the Support Magistrate's orders (see Matter of Pizzuto v. Pizzuto, 129 A.D.3d 846, 847, 12 N.Y.S.3d 149 ; Matter of Lorys v. Powell, 116 A.D.3d 1047, 1048, 983 N.Y.S.2d 892 ).
DILLON, J.P., COHEN, DUFFY and CHRISTOPHER, JJ., concur.