Heilig Branigan Miller & Castrovinci

A January 9, 2019 decision of the Appellate Division, Second Department, may foreshadow an increase in support enforcement proceedings in Family Court, or promote the current payment of child support obligations, or both.

In Mensch v. Mensch, the court reversed an order of Suffolk County Family Court Judge Kathy G. Bergmann that denied a mother’s objections to the denial of a counsel fee award by Support Magistrate Barbara Lynaugh.

The parties were the parents of five children. In December 2017, the mother filed a child support enforcement petition alleging that the father failed to pay $1,635 in child support from April through August, 2017. The support obligation was based on a so-ordered stipulation of settlement that survived the parties’ Judgment of Divorce.

Shortly after the petition was filed, the father paid the mother the amount sought in the petition. The mother thereafter moved for an award of the attorneys’ fees she incurred in commencing this enforcement proceeding.

Magistrate Lynaugh denied her motion. The mother filed objections that were denied by Judge Bergmann.

Reversing, the Second Department held that the denial of an award of attorneys’ fees to the mother was an improvident exercise of discretion. The father paid the arrears demanded, but only after the mother was forced to expend attorneys’ fees to commence an enforcement proceeding.

The court rejected the father’s argument that he was engaged in a dispute over whether he should be credited for payments for cell phone expenses and college expenses paid before the entry of the parties’ judgment of divorce. However, that dispute did not authorize the father to engage in self-help by withholding child support payments that he ultimately did not dispute were due and owing.

Accordingly, the mother was entitled to an award of attorneys’ fees and the matter was remitted to the Family Court to determine the amount of the mother’s reasonable attorneys’ fees incurred in connection with this proceeding.

Michael J. Miller, of Heilig, Branigan, Miller & Castrovinci, of Holbrook, represented the mother. Karen D. McGuire, of McGuire Condon, P.C., of Huntington, represented the father.