PURSUANT TO SEC. 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 35 DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. DECISION AND ORDER I. Instant Order to Show Cause: By Order to Show Cause dated February 21, 2024, Damineh Morsali, (hereinafter “the Petitioner”), by counsel, moves for an order: (1) awarding Petitioner counsel fees in the sum of $40,000 in connection with defending the respondent’s appeal of the Family Court’s Decision After Trial dated April 19, 2023; (2) reimbursing Petitioner for legal fees already paid to her attorneys for defending the appeal in the sum of $21,406.45; and (3) directing Respondent to pay $3,000.00 for legal fees incurred by Petitioner in connection with the instant motion, with leave to request additional fees upon the resolution of the instant application. Bedouin L. Joseph (hereinafter “Respondent”), by counsel, filed an affirmation, dated March 12, 2024, in opposition to Petitioner’s application for counsel fees. Respondent also filed his own affirmation dated March 13, 2024, adopting his attorney’s arguments and disputing petitioner’s calculation of his income. Respondent argues in his opposition that (1) this Court lacks subject matter jurisdiction to hear the instant Order to Show Cause as the Family Court, as a court of limited jurisdiction, lacks authority to make a post-disposition award of counsel fees; (2) the Order of Reference appointing Referee Adams on the underlying family offense petition terminated by entry of the order of disposition and the Referee did not have jurisdiction to sign the Order to Show Cause filed by petitioner (and thus this court lacks authority to hear this fee application); (3) the Family Court lacked subject matter jurisdiction to make a post-disposition, post-appeal counsel fee award for legal services rendered on appeal; and that (4) Petitioner waived any right to seek counsel fees in the underlying family offense proceeding by not making an application for same during the pendency of the proceeding before entry of a final order of disposition. On or about September 3, 2024, Petitioner filed a reply affirmation to Respondent’s affirmations in opposition. Respondent sought Court permission to file case law as a sur reply to Petitioner’s reply. This request was denied by the Court as counsel represented that the proposed sur reply related to evidentiary objections to legal bills annexed to Petitioner’s reply affirmation, which are not relevant to the Court’s decision herein. For the reasons stated herein, the Order to Show Cause is granted in part, as specified hereafter. II. History: On or about April 19, 2023, Referee Gail Adams issued a Decision after Trial, after a full fact-finding hearing, determining Respondent had committed the family offense of harassment in the second degree in violation of Penal Law Sec. 240.26. Referee Adams deemed the temporary order of protection, which had been in effect since March 27, 2020 until the date of decision, was sufficient and issued no additional order of disposition and deemed the temporary order of protection a final order. Apparently, respondent appealed Referee Adams’ decision despite the order of protection being expired. By decision entered on or about March 21, 2024, the Appellate Division, First Department unanimously affirmed Referee Adams’s decision. By this instant motion, petitioner seeks an award of counsel fees incurred in her successful defense of this appeal. III. Decision: Family Court Act §842 (f) permits a Court to require a respondent “to pay reasonable counsel fees and disbursements involved in obtaining or enforcing the order of the person who is protected by such order if such order is issued or enforced” (emphasis added). In this regard, the Family Court has considerable discretion in determining whether counsel fees should be awarded, and in determining the reasonable value of said fees. Grald v. Grald, 33 A.D.3d 992, 993 (2d Dep’t 2006). The Court of Appeals has held that “statutory jurisdiction — as Family Court has — carries with it such ancillary jurisdiction as is necessary to fulfill the court’s core function” Matter of H.M. v. E.T., 14 N.Y.3d 521, 527 (2010) (emphasis added), citing Higgins v. Sharp, 164 NY 4, 8 (1900); see also Matter of Lisa T. v. King E.T., 30 N.Y.3d 548 (2017). In this vein, appellate courts have routinely held that an application for appellate fees should be made at the trial level. See Gutman v. Gutman, 24 A.D. 758 (2d Dep’t 1965); Taft v. Taft, 135 A.D. 2d 809 (2d Dep’t 1987); Urbach v. Krouner, 213 A.D.2d 883 (3d Dep’t 1995). A plain reading of Family Court Act §842 (f) grants a Family Court statutory authority to require a respondent to pay reasonable counsel fees incurred by a petitioner in obtaining or enforcing the order of protection. Appellate courts have routinely held that an application for counsel fees incurred for an appeal must be made at the trial level see Aborn v. Aborn, 196 A.D.2d 561(2d Dep’t 1993). Thus, it is within the authority of the trial court, and within the Family Court’s ancillary jurisdiction, to hear an application for post-dispositional award for attorney’s fees for an appeal related to an underlying family offense proceeding. See Matter of H.M. v. E.T., 14 N.Y.3d 521, 527 (2010); see also Higgins v. Sharp, 164 NY 4, 8 (1900); Matter of Lisa T. v. King E.T., 30 N.Y.3d 548 (2017). Therefore, Respondent’s claims that this Court lacks subject matter jurisdiction for post-dispositional proceedings are without merit. Further, respondent’s argument that the Family Court as a court of limited jurisdiction lacks authority to hear applications for attorneys fees incurred on appeal are also lack merit. Further, Respondent’s assertion that the Order of Reference appointing Referee Adams terminated upon entry of the order of disposition is moot as this matter is now before this jurist, a Judge of the Family Court, upon Referee Adams’ transfer to Supreme Court. Thus, Petitioner’s order to show cause is granted to the extent that this matter is referred for a full evidentiary hearing regarding the reasonableness of attorney’s fees sought by Petitioner. See Matter of M.M. v. A.A., 74 Misc. 3d 202 (Kings Cty. Fam. Ct. 2021). This constitutes the decision and order of the Court. Petitioner is directed to furnish to the Court and parties an updated Financial Disclosure Form and relevant attachments within 30 days of the date of this Order. Dated; October 1, 2024
