Bistany v. Bistany

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Appellant seeks review of an award pursuant to section 237 of the Domestic Relations Law to his former wife of $6,500 counsel fees and $1,460.95 disbursements for her appeal of the custody provisions of a judgment rendered in consolidated habeas corpus and divorce proceedings (Bistany v Bistany, 66 AD2d 1026 ). Considering all of the relevant factors, including respondent’s lack of success on appeal (see Salk v Salk, 57 AD2d 519 ; Patron v Patron, 53 AD2d 822 , app dsmd 40 NY2d 582 ); the time spent by her attorneys in preparation and presentation of the appeal; and the fact that respondent has the financial ability to bear some portion of her legal expenses (see La Porte v La Porte, 60 AD2d 966 ; Martin v Martin, 28 AD2d 897 ), the award should in the exercise of discretion be reduced to $3,500 plus disbursement of $1,460.95. We reject appellant’s argument, based on the line of cases in the First Department (Thorne v Thorne, 66 AD2d 397 ; Winter v Winter, 39 AD2d 69 , affd 31 NY2d 983 ; Kann v Kann, 38 AD2d 545 ), that we should deny respondent recoupment because she paid $6,000 to her attorneys in advance. We agree with the view of the Second Department that "there is [no] impediment to reimbursement to a wife of counsel fees advanced by her which the court later finds the husband should have paid.” (Ross v Ross, 47 AD2d 866 ; see Schwartz v Schwartz, 50 AD2d 877 ; Press v Press, 49 AD2d