Appellate Division of the Supreme Court of New York, 1996

Panek v. Panek

Panek v. Panek
Appellate Division of the Supreme Court of New York · Decided September 27, 1996
231 A.D.2d 959; 648 N.Y.S.2d 380; 1996 N.Y. App. Div. LEXIS 10966
Panek v. Panek

Opinion of the Court

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in directing defendant to pay child support retroactive to June 1991. The Domestic Relations Law provides that a direction for the payment of child support shall "be effective as of the date of the application therefor” (Domestic Relations Law § 236 [B] [7] [a]; § 240 [1]; see, Burns v Burns, 84 NY2d 369, 377; Berge v Berge, 159 AD2d 960, 961; see also, Family Ct Act § 449 [2]). Plaintiff’s application for child support was made on October 25, 1994, the date defendant was served with the cross motion (see, Trautwein v Trautwein, 181 AD2d 1060, 1061). We modify the order, therefore, by directing that defendant’s payment of child support be retroactive to October 25, 1994.

An award of counsel fees is a matter "committed to the sound discretion of the trial court, which is 'in a superior position to judge those factors integral to the fixing of counsel fees’ (Levine v Levine, 179 AD2d 625, 626), such as the financial circumstances of the parties, the circumstances of the case as a whole, including the relative merit of the parties’ positions, and the time, effort and skill required of counsel (see, DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881)” (Silberman v Silberman, 216 AD2d 41, 41-42, appeal dismissed 86 NY2d 835). The denial of defendant’s application for counsel fees was a proper exercise of the court’s discretion. (Appeal from Order of Supreme Court, Erie County, Whelan, J.—Child Support.) Present—Green, J. P., Lawton, Fallon, Callahan and Doerr, JJ.

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