DECISION OF THE COURT On October 11, 2018, the mother (hereinafter referred to as “Petitioner”) filed an “Objection to Support Order” to the Support Magistrate’s Order filed and entered on September 6, 2018 which granted the father’s (hereinafter referred to as “Respondent”) motion to dismiss a downward modification petition filed by the Petitioner and an award of counsel fees to the attorney for the Respondent. The Petitioner has filed an Affidavit of Service with the Court, indicating service of the Objection on Respondent’s counsel. In making its determination on the Objection, the Court reviewed the case file, pleadings and audio recording of the proceedings.As background, on June 15, 2018, the Petitioner filed an application seeking a downward modification of an Order of Support filed and entered on April 9, 2018 directing payment of child support by the Petitioner to the Respondent in the amount of seventy-five dollars per week commencing February 11, 2017.On July 5, 2018 the attorney for the Respondent filed a motion to dismiss the Petitioner’s modification application and an award of counsel fees. On August 15, 2018 the Respondent personally appeared before the Support Magistrate, with his counsel, and the Petitioner appeared pro se. The Support Magistrate granted the Respondent’s motion to dismiss and directed the Petitioner pay Respondent’s attorney fees in the amount of $5,285.00.The Petitioner Objects to the Support Magistrate’s determination dismissing the underlying modification application and the granting of counsel fees by making the following arguments:(a) the Petitioner’s only source of income is Social Security Disability, her total income has decreased since the entry of the prior order of support and her total household income is below the “poverty level” (2) an award of counsel fees is inappropriate as the Petitioner does not have the financial means to retain representation for herself.Family Court Act §451 states that an order of support may be modified upon the showing of a substantial change in circumstances, “there has been a change in either party’s gross income by fifteen percent or more since the order was last entered, last modified or adjusted” or when one of the other enumerated grounds set forth in the statute have been established. Decisional case law holds that a party seeking a modification of their child support obligation has the burden of demonstrating that one of the factors for modification exists. However, an evidentiary hearing is only necessary on the issue of a downward modification where the petitioner submits proof demonstrating a genuine issue of fact exists. (Spiegel-Porco v. Porco, 127 AD 3d 849; Reback v. Reback, 93 AD3d 652)The Court finds that the allegations set forth in the petition establish a genuine issue of fact as to whether or not a downward modification of the Petitioner’s child support payment is appropriate. The Court further finds the Petitioner should be provided an opportunity, at a hearing, to submit further documentation and testimony to substantiate and support the allegations contained in the petition filed herein. Upon completion of a full evidentiary hearing the Support Magistrate will then have the benefit to consider any evidence submitted by the Petitioner and the merits of such claims prior to a final determination on her application. (David v. David, 54 AD3d 714)Secondly, pursuant to Family Court Act §438 “in any proceeding under this article, including proceedings for support of a spouse and children, or for support of children only, or at any hearing to modify or enforce an order entered in that proceeding or a proceeding to modify a decree of divorce, separation, or annulment, including an appeal under article eleven, the court may allow counsel fees at any stage of the proceeding.” (FAM. CT. ACT §438). Additionally, attorney fees may be awarded to the attorney representing an individual claiming a right to support on behalf of the child. (Funaro v. Kudrick, 128 AD 3d 695). While the Support Magistrate is allowed discretion upon directing an award for counsel fees such awards are “controlled by the equities of the case and financial circumstances of the parties” (Popelaski v. Popelaski, 22 AD3d 735, Matter of Shvetsova v. Paderno, 84 AD3d 1095; Matter of Nenninger v. Kelly, 140 AD3d 964)Upon dismissing the Petitioner’s application the Support Magistrate awarded counsel fees to the Respondent’s attorney in the amount of Five Thousand Two Hundred and Eighty Five Dollars ($5,285.00). Upon examination of the record such award consists of three separate fee requests made by counsel for the Respondent as follows: submission dated December 18, 2017 (Docket: FXXXX-14/17 D & E) in the amount of Two Thousand Six Hundred Fifty Dollars; submission dated June 19, 2018 (Docket: F-XXXX-14/18F) in the amount of One Thousand One Hundred Thirty Five Dollars ($1,135.00) and One Thousand Five Hundred Dollars ($1,500.00) which was made part of the underlying motion to dismiss subject to the Objection before this Court (Docket: F-04111-14/18G).The Court will note, within the context of the legal fee determination, the Petitioner filed a “Petition for Violation of a Support Order” on May 7, 2018 (F-XXXX-14/18F) which was dismissed upon motion of the Respondent on June 15, 2018. Furthermore, upon conclusion of the Objection process, the Support Magistrate under docket F-XXXX-14/17D&E made an award of $2,650.00. The Court finds that neither the record nor the order specify the basis for such legal fee determinations and whether or not due consideration as to the Petitioner’s financial status was taken into account. Therefore, all such awards are vacated and referred to the Support Magistrate for further development of the record.Finally, in light of the underlying modification petition being returned to the Support Magistrate for a hearing on the relief being requested, a final determination as to a legal fee award should be made at the conclusion of such proceeding. Thereby, the award of $1,500.00 under docket Docket: F-XXXX-14/18G is hereby vacated and upon conclusion of the hearing on the Petitioner’s modification a further request may be made by counsel.Accordingly, the Petitioner’s Objections are granted and the matter is returned to the Support Magistrate for further proceedings in accordance with this Decision.So, Ordered.Dated: November 19, 2018
