Giacoman v. Boer

language precluded the court from awarding counsel fees on appeal. To obviate such preclusion and to enable the court to allow fees in such eases the statute was amended so as to permit counsel fees “at any stage in the proceeding, including an appeal”. Section 536, on the other hand, did not contain the restrictive language of the original section 438 limiting the court’s power to award fees to the “ original hearing or any subsequent hearing.” To the contrary it provides that “ Once an order of filiation is made, the court in its discretion may allow fees to the attorney for the mother, if she is unable to pay such counsel fees.” There is no limitation as to when such application may be made, nor is there any indication that the services contemplated are only those rendered up to the entry of the filiation orders. As a result no amendment of section 536 analogous to that of section 438 was necessary. Not being necessary the failure to so amend may not be given the significance which respondent seeks to attach to it. In any event, even if section 536 were considered to be ambiguous it should be construed in a manner permitting the allowance of fees upon appeal. It would be completely illogical — as well as contrary to the legislative intent expressed in the amendment to section 438 — to conclude that while an indigent mother is enabled to retain counsel to obtain a filiation order she may not be put in a position to defend such order on appeal. 'Concur- — Botéin, P. J., Rabin, Eager and Bastow, JJ.; Tálente, J., dissents in the following memorandum: I dissent. I would reverse the order, on the law, and deny the application. Petitioner in this paternity proceeding sought -counsel fees for her attorney for services rendered in successfully sustaining the order of filiation and support in the Appellate Division and the Court of Appeals. (Matter of Giacoman v. Boer, 21 A D 2d 873 , affd. 15 N Y 2d 554 .) The power to award counsel fees in the Family Court is strictly limited to the grant of such power by the statute. Section 536 of article 5 of the Family -Court Act provides that “ Once an order of filiation is made, the court in its discretion may allow counsel fees to the attorney for the mother, if she is unable -to pay such counsel fees”. Section 536 was derived from section 69 of the New York City Criminal Courts Act, which was construed in Anonymous v. Anonymous ( 20 Misc 2d 753 ) to -permit an allowance -of counsel fees upon an application to increase the payments for the support of the -child. However, no court has, until this case, made an award for counsel fees on an appeal in a paternity case. Section 438 of the Family Court Act — -dealing with counsel fees in support proceedings under article 4 of the act- — -was construed, before -its amendment by chapter 52 of the Laws of 1964, as not authorizing an award of counsel fees on appeals. (Matter of Anonymous v. Anonymous, 39 Misc 2d 995 .) By the amendment in 1964, the Legislature gave specific authority to the Family Court, in support proceedings under article 4, to allow counsel fees “at any stage in' the proceeding, including an appeal”. However, section 536 was not amended. As a consequence, section 536 should be construed in the same fashion as section 438 was interpreted, before its amendment, as not including a poW-er to award counsel fees upon appeals in paternity proceedings. Obviously, different considerations enter into determining, as a matter of policy, whether counsel fees on appeal should be granted in paternity eases from those involved in support proceedings brought by a wife. It is for the Legislature, and not the -courts, to weigh those considerations and reach a conclusion as to granting or withholding such power. In the absence of a statutory grant of such power, it was error, as a matter of law, for the Family Court in the instant case to award counsel fees to petitioner for the legal services rendered upon the appeals. Reliance by the Family Court Judge upon the decision of this court in Bartsch v. Seneca ( 22 A D 2d 773 ) was wholly

unwarranted. In that case, a motion was made in the Appellate Division for a counsel fee. While it appears that our denial of the motion was without prejudice to an application under section 438 of the Family Court Act, there was no holding on that motion that section 438 was the proper governing statute in paternity proceedings. The papers on that motion did not indicate that the parties were seeking relief — as they should have been — under section 536. In the main, the papers there were concerned with the quantum of the requested award rather than any question of power. The parties in Bartsch neither presented nor briefed the question of the power of the Family Court, All that Bartsch held was that the Appellate Division, in any event, had no power to grant the counsel fees. Any implication that Bartsch approved the power of the Family Court to grant counsel fees for services on appeals in paternity cases should be repudiated,