Opinion
2011-12-27
In the Matter of Yehuda TORNHEIM, appellant, v. Amy RUBE, respondent.
Yehuda Tornheim, Wesley Hills, N.Y., appellant pro se. Amy Rube, Brooklyn, N.Y., respondent pro se.
Yehuda Tornheim, Wesley Hills, N.Y., appellant pro se. Amy Rube, Brooklyn, N.Y., respondent pro se.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Kings County (Graham, J.), dated August 5, 2010, which denied his objections to an order of the same court (Fasone, S.M.), dated December 2, 2009, which granted the mother's motion to dismiss his petition to suspend his child support obligation and for an award of an attorney's fee, and denied his objections to an order of disposition of the same court (Fasone, S.M.), dated December 18, 2009, which, upon the order dated December 2, 2009, dismissed the petition.
ORDERED that the order dated August 5, 2010, is affirmed, with costs.
The Family Court properly denied the father's objections to the Support Magistrate's dismissal of his petition, in which he sought to suspend his child support obligation on the ground that the mother interfered with his visitation. In the first instance, Support Magistrates are not empowered to hear visitation issues ( see Family Ct. Act § 439[a]; Matter of Mitchell v. Remy, 24 A.D.3d 558, 805 N.Y.S.2d 288). Moreover, the father's contentions with respect to the mother's alleged interference with his visitation had been raised and determined by a Judicial Hearing Officer after a hearing held on October 28, 2009. Accordingly, under the circumstances, dismissal of the petition was warranted, rather than transfer to a Family Court Judge.
Family Court Act § 438 authorizes an award of an attorney's fee in support proceedings ( see Matter of Sarfaty v. Recine, 57 A.D.3d 552, 867 N.Y.S.2d 704; Matter of Israel v. Israel, 273 A.D.2d 385, 710 N.Y.S.2d 903). In light of the circumstances of this case, the award of an attorney's fee was a proper exercise of the Support Magistrate's discretion ( see Matter of Sarfaty v. Recine, 57 A.D.3d at 552, 867 N.Y.S.2d 704; Matter of Israel v. Israel, 273 A.D.2d at 385, 710 N.Y.S.2d 903), based on the legal services provided in connection with this support proceeding ( see Matter of Olesh v. Auerbach, 227 A.D.2d 406, 407, 642 N.Y.S.2d 65; Matter of Lazaar v. Lazaar, 248 A.D.2d 618, 669 N.Y.S.2d 927). Contrary to the father's contention, “[t]here is no impediment to reimbursement to a wife of counsel fees advanced by her which the court later finds the husband should have paid” ( Silver v. Silver, 63 A.D.2d 1017, 1017, 406 N.Y.S.2d 352; see Ross v. Ross, 90 A.D.2d 541, 455 N.Y.S.2d 113).
The father's remaining contentions are without merit.