Opinion
October 18, 1982
In a proceeding pursuant to article 4 of the Family Court Act, the father appeals from so much of an order of the Family Court, Suffolk County (Cannavo, J.), entered December 3, 1980, as granted petitioner's application for an upward modification of the child support provisions of the parties' divorce decree and awarded petitioner a counsel fee. By order dated June 1, 1981, this court reversed the order insofar as appealed from, on the law, dismissed the petition for increased child support and denied petitioner's request for a counsel fee ( Matter of Michaels v. Michaels, 83 A.D.2d 841). On June 17, 1982, the Court of Appeals reversed the order of this court and remitted the case to this court for further proceedings in accordance with its memorandum ( 56 N.Y.2d 924, 926). Order modified, on the law, by deleting the provision awarding petitioner a counsel fee and substituting a provision denying petitioner's request for such fee, without prejudice to reapply upon proper papers. As so modified, order affirmed insofar as appealed from, with costs to petitioner. The upward modification of child support was a proper exercise of discretion. However, the failure of counsel to submit an affidavit in support of the application for a counsel fee precludes such an award ( 22 NYCRR 699.11 [b]). Damiani, J.P., Mangano, Gibbons and Weinstein, JJ., concur.