DECISIONObjections to the order (D. Jorif-Mangane, S.M.), dated January 2, 2019, directing the entry of a money judgment in favor of counsel for Respondent in the amount of $1,500.00, having been filed on January 17, 2019, and proof of service thereof having accompanied the filing showing that service was complete on January 7, 2019, and no rebuttal to the objections having been filed, the following disposition is made:Pursuant to Family Court Act §439 (e), the Court grants the objections and remands the matter to the Support Magistrate for further proceedings consistent with this decision.In this child support proceeding, on January 2, 2019, the Support Magistrate issued two documents captioned with the word “order.” One document consisting of three pages is captioned “ORDER ON MOTION” which is largely, in form, a decision, and the other document is captioned “ORDER ENTRY MONEY JUDGMENT.” These two orders arose from Respondent’s application to dismiss the petition and for sanctions pursuant to 22 NYCRR 130.1-1 based upon the alleged frivolous conduct of the Petitioner.Petitioner Preserved His Right To ObjectThe motion to dismiss and for attorney fees was filed on or about December 13, 2018. Petitioner filed a document dated December 21, 2018 entitled “Opposition to Motion to Dismiss which refers to an attached “Memorandum” which was apparently simultaneously filed. The Family Court’s time-stamp on the document is from December 2018. Based upon the date of the document Petitioner filed to oppose the motion, this Court finds that Petitioner timely responded to the motion and did not default thereon.Therefore, the Petitioner, having received an adverse decision on the Respondent’s motion practice was entitled to, and did, timely file objections.Scope of the ObjectionsPetitioner attached to the objections the order captioned “Order Entry Money Judgment” to the filed objections and stated in the document captioned “Objection to Support Order” that “I am a Party (sic) in the above-entitled proceeding and object to the order, dated: January 2cd (sic) a copy of which is attached….” Therefore, this Court’s review is limited to the issue of the application for attorney fees and ultimate award of counsel fees (Family Court Act §439 [e]).Implicit Conversion of the Motion for Counsel Fees under 22 NYCRR §130-1.1 to a Motion Under the Family Court ActThe Respondent’s notice of motion indicated that Respondent sought an award of attorney fees under “22 NYCRR 130 §1.1 (sic).” The notice of motion also sought “an order…for such other relief as the Court may deem just and proper.”The allegation in paragraph 9 of the affirmation in support of the Respondent’s motion sets forth a request for $3,500 in attorney fees. The allegation in paragraph 12 of the same affirmation in support set forth a request for $2,500 in attorney fees. The order awarded attorney fees of $1,500, and did so not on authority of 22 NYCRR §130-1.1 but, instead, on authority of Family Court Act §438 (a).Because the notice of motion contained a prayer for relief of “such other relief as the Court may deem just and proper,” the Support Magistrate’s apparent rejection of the Respondent’s sanctions argument and implicit conversion of the motion to an application for an order under Family Court Act §438 (a) is proper. Petitioner suffered no prejudice — and, in fact, benefitted because the Support Magistrate’s conversion of the motion meant that the Support Magistrate disagreed with the Respondent’s position that the Petitioner’s conduct and/or petition was “frivolous” as defined in the court rules. Put differently, the Support Magistrate has found — and the Respondent has not objected to such finding — that the Petitioner’s conduct and/or petition was not frivolous.A measure of reasonable attorneys fees to be awarded as a sanction under 22 NYCRR §130-2.1(a) and under Family Court Act §438 (a) require a showing of “work actually performed or fees actually incurred” (Matter of Jagnarain v. Aponte, 158 AD3d 628, 71 NY3d 121 [2d Dept 2018]; see also, Matter of Musera v. Musera, 28 AD3d 668, 814 NYS2d 657 [2d Dept 2006] [factors to consider under Family Court Act §438 include, among other things, the nature and extent of services rendered]).Petitioner had a full opportunity to contest the amount of fees because Petitioner’s opposition to the original application would have or could have attacked both a finding of frivolous conduct and the amount of attorney fees — two separate issues. Thus, Respondent had adequate notice through the notice of motion that the amount of attorney’s fees was an issue in contest.The Support Magistrate had jurisdiction and authority to implicitly convert the attorney fees motion.“Specific Objections”Family Court Act 439 (e) permits either party to file “specific written objections to a final order of a support magistrate.” The language of the Petitioner’s objections requires this court to examine the definition of “specific written objections.”A specific written objection is more than simply saying, “I object” (Tompkins County Support Collection Unit ex rel Chamberlin v. Chamberlin, 99 NY2d 328, 756 NYS2d 115 [2003] [contrasting the objection language of Family Court Act §§413-a and 439 (e)]). The purpose of a written objection, specific or not, is to comport with due process requirements of fair notice to the opposing party, and the degree of specificity must, therefore, be sufficient to apprise the opposing party about the scope of review the objector seeks (Id.).The decision about interpreting the specific written objections is committed to the Family Court’s discretion, which must be providently exercised (Matter of Lerner v. Relkin, 27 AD3d 745, 813 NYS2d 726 [2d Dept 2003]).In exercising this discretion, this Court notes that objections set forth, among other things:13. The Respondent’s Attorney, once again, knowingly lied on his Motion to Dismiss (sic)23. The rules of professional conduct part 1200 clearly have been violated in numerous ways by the Respondent’s attorney including: rule 3.4(a)(2)(3)(4)(5), rule 3.3 (a)(1)(2)(3), rule 3.1 (b)(3), rule 8.4 (a)(b)(e)(2)1.While most of the cited rules deal with an attorney’s honesty, at least two of them cover disclosure obligations of counsel. First, rule 3.4 (a) (3) provides, “A lawyer shall not: (3) conceal or knowingly fail to disclose that which the lawyer is required by law to reveal;” (Rules of Professional Conducct [22 NYCRR 1200.0] rule 3.4 [a] [3]). Moreover, “A lawyer shall not knowingly…(2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.3 [a] [2]).This Court has already visited the issue of fair notice in this decision when it found that the general language in the notice of motion afforded the Petitioner adequate notice that the motion might be converted to a Family Court Act §438 (a) attorney fee application. Here, as to the specific written objections, this Court applies the same rule of decision and finds that Petitioner’s objections provide no lesser a degree of notice than does Respondent’s notice of motion; in this instance, the objections gave adequate notice that the Petitioner believed the application for fees to be frivolous and that something might be missing from the application.Absence of Retainer Agreement“An attorney may recover fees from a client or the client’s spouse only if the attorney has substantially complied with 22 NYCRR 1400.2 and 1400.3, which, inter alia, require counsel to provide the client with written itemized bills at least every 60 days” (Matter of Tarpey v. Tarpey, 163 AD3d 687, 688-89, 81 NYS2d 426, 427 [2d Dept 2018] [citations and internal quotations omitted]). Those rules include the requirement that the attorney have a written retainer agreement with the client in a matrimonial matter which includes a child support matter (22 NYCRR §1400.3).In Gahagan v. Gahagan (51 AD3d 863, 859 NYS2d 218 [2d Dept 2008]) the Second Department held that the failure to comply with the bi-monthly billing requirement or the written retainer agreement requirement precluded an award of counsel fees. “Such utter failure to abide by these rules, promulgated to address abuses in the practice of matrimonial law and to protect the public, will result in the preclusion from recovering such legal fees” (Julien v. Machson, 245 AD2d 122, 122, 666 NYS2d 147, 148 [1st Dept 1997]; see also, Hunt v. Hunt, 273 AD2d 875, 709 NYS2d 744 [4th Dept 2000]), that the effort to collect is from an adversary spouse (or former spouse) does not change the analysis (Mulcahy v. Mulcahy, 285 AD2d 587, 728 NYS2d 90 [2d Dept 2001]).When substantial compliance with 22 NYCRR §§1400.2 and 1400.3 is not shown, remand to the trier of fact is a proper remedy (Gahagan v. Gahagan, 51 AD3d 863, 859 NYS2d 218 [2d Dept 2008]). Thus, to insure that the proper record is developed below, remand is necessary.This Court need not reach the issue of whether support magistrates must deny applications for attorney fees when substantial compliance with 22 NYCRR §§1400.2 and 1400.3 is not initially shown, even if the opposing party does not specifically oppose the application in express terms on the grounds of noncompliance. Here, the Support Magistrate’s orders are silent about a finding whether substantial compliance with 22 NYCRR §§1400.2 and 1400.3 occurred. Moreover, the orders are silent about what factors the Support Magistrate considered as required by, among other cases, (Matter of Musarra v. Musarra, 28 AD3d 668, 814 NYS2d 657 [2d Dept 2006]. The Support Magistrate’s documents captioned orders (see 22 NYCRR §205.36) do not explain the Support Magistrate’s understanding of how the Respondent’s attorney’s fee application could ask for two different amounts ($3,500 and $2,500) with the Support Magistrate awarding only $1,500.Here, not only is remand needed on the 22 NYCRR §§1400.2 and 1400.3 question, but also remand is all the more necessary to develop a sound basis in the record for the amount of attorney’s fees, if any, to be awarded.Thus, the objections are GRANTED, and the case remitted to the Support Magistrate to hold a hearing on notice to the parties on the issue of substantial compliance with 22 NYCRR §§1400.2 and 1400.3, and if such compliance is found, then the hearing should address the proper amount attorney fees to be awarded which, of course, should not exceed $1,500 which is the amount that the Support Magistrate found reasonable in the order.Central Islip, NYDated: January 29, 2019TO: Petitioner/RespondentSCUDecision was mailed to parties/counsel on 1/31/19,2019 by: kg Part 2.
