In its December 14, 2016 decision in Piza v. Baez-Piza, the Appellate Division, Second Department, stated that a father was required to prove a change of circumstances before modifying a prior award of temporary custody. The court also held that where a wife’s attorney did not comply with billing rules, a trial court could not award the wife counsel fees in excess of the retainer amount initially paid by the wife to her attorney.

The parties were married in 1996 and later separated. The husband commenced this action for a divorce in 2010. They have a son, who is now 17 years old.

The parties cross-appealed from their judgment of divorce entered in the Supreme Court, Suffolk County (Marlene L. Budd, J.), that was entered upon a decision after trial of Justice Stephen M. Behar. That decision:

  • awarded the plaintiff custody of the parties’ child;
  • directed the defendant to pay child support in the sum of $293.20 per month;
  • awarded the mother $150 per week for the period of April 26, 2010, through July 11, 2016; and
  • awarded the wife an additional $7,500 in attorney’s fees for legal services provided following an earlier award of $3,500 in attorney’s fees.

Prior to trial, the lower court had awarded the wife temporary custody of the parties’ child and awarded her pendente lite relief in the form of child support, maintenance, and the sum of $3,500 in attorney’s fees.

Following the trial, the wife sought additional attorney’s fees, and in September 2013, the court awarded the husband temporary custody of the subject child.

In affirming the award of custody to the husband, the Second Department noted:

The Supreme Court incorrectly stated that it was not required to find a change of circumstances before modifying a prior award of custody.

For this proposition, the appellate court cited McCance v DeWitt, 118 A.D.3d 759, 987 N.Y.S.2d 174 (2nd Dept. 2014). However in that case, the change of custody was sought two years after the entry of the divorce judgment which incorporated the parties’ surviving stipulation of settlement.

The current statement appears inconsistent with its holding in McDonald v. McDonald, 2014 NY Slip Op 08322, 122 A.D.3d 911, 998 N.Y.S.2d 389 (2nd Dept. 2014). In that case, the court held:

Contrary to the mother’s contention, the existence of an interim order awarding her physical custody, which was made without a hearing, did not require the court to engage in a change-of-circumstances analysis in determining the permanent award after a hearing had been held. The award of temporary custody to a parent before a hearing is conducted is only one factor to be considered in awarding permanent custody; the permanent award made after a hearing is treated as an initial custody determination, and [the court] is not required to engage in a change-of-circumstances analysis before awarding custody to the other parent.

Nevertheless, the appellate court noted that in Piza there had indeed been a change of circumstances affecting the subject child’s best interests such that a change in custody to the father was warranted.

The Second Department also held that Justice Behar erred in awarding the wife total attorney’s fees in excess of the $7,500 retainer that she paid to her attorney, as she did not demonstrate that her attorney substantially complied with the retainer and billing rules contained in 22 NYCRR 1400.2 and 1400.3.

Accordingly, the appellate court modified the judgment to provide that the additional award of attorney’s fees for legal services provided following the prior award of $3,500 be limited to the sum of $4,000.

Robert H. Montefusco, P.C., of Islandia, represented the husband. The wife represented herself. Beth A. Rosenthal, of North Babylon, served as attorney for the child.