Mitchell v. Mitchell — 209 A.D.2d 620

Majority

p. 620

In the Matter of Kathleen A. Mitchell, Respondent, v Robert P. Mitchell, Appellant.

[619 NYS2d 652]

—In a proceeding pursuant to Family Court Act article 4 to enforce certain provisions of a resettled judgment of divorce, the appeal is from an order of the Family Court, Orange County (Slobod, J.), entered January 27, 1993, which awarded the petitioner counsel fees.

Ordered that the order is affirmed, with costs.

Contrary the the appellant’s contention, in this proceeding pursuant to Family Court Act article 4, the court had the authority to entertain the petitioner’s application for counsel fees under Family Court Act § 438, even though the petitioner subsequently caused a proceeding under the Uniform Reciprocal Enforcement of Support Act to be commenced on her behalf in Maryland, where the appellant resides, which resulted in a judgment in the petitioner’s favor (see, Matter of

p. 621

Murdock v Settembrini, 21 NY2d 759 ). Matter of Dannheim v Babbitt ( 48 Misc 2d 310 ), relied upon by the appellant, does not hold to the contrary, and even if it could be so interpreted we would decline to follow it.

Moreover, on this record, we conclude that the award of counsel fees was appropriate (see, Family Ct Act § 438 [b]). Bracken, J. P., Lawrence, Friedmann and Goldstein, JJ., concur.

Cases cited

Murdock v. Settembrini 21 NY2d 759 N.Y. 1968-01-18 p. 621
Dannheim v. Babbitt 48 Misc 2d 310 N.Y. Fam. Ct. 1965-11-08 p. 621