The following papers were submitted on this motion sequence #2:

Order to Show Cause, Affidavit in Support, Exhibits.............................................................1-6

Affirmation in Opposition to Respondent's Motion to Reargue.............................................7

The above named Petitioner, S. B. S., filed an order to show cause, docket number V-XXXX-09/10A, on July 9, 2010 for Orders: modifying an order of custody concerning the parties' child S, born xx/xx/xx, modifying an existing parenting schedule, compelling the [*2]Respondent to bring the child to summer camp, and speech and language sessions and restraining the Respondent from discussing the litigation with the child, or Respondent's son.

The Respondent filed a notice of cross-motion on September 20, 2010, requesting sole custody of the parties' child, awarding the "Petitioner visitation with the parties' child on alternate weekends on Wednesday overnights," and awarding the Respondent the sum of $100,000 as and for counsel fees.

By Decision and Order on Motion Sequence #1, dated February 14, 2011, this Court referred the notice of cross-motion to hearing on May 3, 2011, which was the date selected for hearing on the Petitioner's application.

The Respondent then filed the instant application by order to show cause on March 14, 2011, pursuant to Civil Practice Law and Rules ("CPLR") section 2221, granting "the Respondent leave to reargue the motion resulting in the Order of this Court dated February 14, 2011, and upon such reargument, modifying said Order so as to grant Respondent's request for an award of counsel fees in the amount of $100,000 or alternatively, advancing the date of the hearing to which Respondent's request for counsel fees was referred by said Order to a date that any counsel fee award is made no less than forty-five (45) days prior to the commencement of the custody hearing in this matter," and staying all proceedings in this matter pending a determination of the motion.The order to show cause was placed on this Court's calender on March 25, 2011, for oral argument.

On March 25, 2011, the attorneys appeared before this Court, seeking an adjournment, on consent, to April 1, 2011. The request for the adjournment was granted.

The Respondent submitted an affirmation in opposition on March 31, 2011.

The attorneys for the Petitioner, the Petitioner, and the attorneys for the Respondent appeared on April 1, 2011 for oral argument on the application for re-argument of this Court's Decision and Order dated February 14, 2011.After having heard oral argument, this Court reserved decision.

First, CPLR 2221 (d) headed, "a motion for leave to reargue" states, in pertinent part:

A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and [*3]

3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.

It is well settled that a motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or law or mistakenly arrived at its earlier decision.

See Peak v. Northway Travel Trailers 260 AD2d 840 (3rd Dept. 1999).

Based upon the papers submitted and the oral argument, this Court, in its discretion, deems it appropriate to grant re-argument of the Decision and Order dated February 14, 2011.

Turning now to the request for interim counsel fees, it is clear that the Family Court has the power to award attorney's fees in a custody matter pursuant to Domestic Relations Law Section 237 (b). See Dempsey v. Dempsey 78 AD3d 1179 (2nd Dept. 2010), O'Neil v. O'Neil 193 AD2d 16 (2nd Dept. 1993).

The Respondent's notice of cross-motion, which sought the award of interim counsel fees, was filed on September 20, 2010. Domestic Relations Law Section 237 (b) was amended as of October 12, 2010; as the application requesting counsel fees was filed September 20, 2010, the statute prior to the enactment of the amendment applies.Thus, prior to October 12, 2010,

Domestic Relations Law Section 237, headed, "counsel fees and expenses," provided:

(b) Upon any application to annul or modify an order or judgment for alimony or for custody, visitation, or maintenance of a child, made as in section two hundred thirty-six or section two hundred forty provided, or upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay such sum or sums of money for the prosecution or the defense of the application or proceeding by the other spouse or parent as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. ^[FN1] [*4]

Therefore, an award of counsel fees made pursuant to the Domestic Relations Law is within the discretion of the Court, upon a review of the financial circumstances of both parties, together with all the other circumstances of the case. See generally DeCabrera v. Cabrera-Rosete 70 NY2d 879 (1987). The issue of counsel fees is controlled by the equities and circumstances of each particular case, and the court must consider the relative merits of the parties' positions and their respective financial positions in determining whether an award is appropriate. Morrissey v. Morrissey 259 AD2d 472 (2nd Dept. 1999). Further, an award of interim counsel fees is made to enable the "monied" party from "wearing down" the "non-monied" party in the litigation. See Prichep v. Prichep 52 AD3d 61 (2nd Dept. 2008).

The proceedings before this Court involve applications wherein each party has requested modification of an existing custody order from the State of Texas, for sole custody of the subject child. The parties have consented to an "Order Appointing Mental Health Evaluation." There has been representation that the forensic evaluator will testify at the hearing.In reviewing this contested matter, this Court has considered the overall nature of this case, the financial circumstances of the parties, and the professional standing of counsel in the legal community.

The Petitioner has not submitted a financial disclosure affidavit or retainer agreement. The Petitioner has not disputed the Respondent's financial "characterization" of him as a billionaire, nor has the Petitioner controverted the Respondent's representation of her finances as [*5]set forth in her financial disclosure affidavit. The Petitioner has not contested that the fees sought by the Respondent are not reasonable in this case.

This Court has reviewed the Respondent's retainer agreement with her attorneys, the Law Firm of Schlissel, Ostrow, and Karabatos, PLLC, the affirmation of services of the attorneys, and her financial disclosure affidavit. The Respondent's attorneys have detailed the amount of time required to prepare their case, including: meeting with the Respondent, preparing for conferences, preparing for the hearing, preparing for the examination of the expert witness, defending against the Petitioner's application and presenting their own case at the hearing. This Court finds that the Respondent has also satisfied the requirements as set forth in 22 NYCRR 202.16(k).

It is noted that the Respondent reports zero income, other than that of the child support paid by the Petitioner as and for the support of the parties' child. While the Petitioner contends that it would be inequitable for the Court to award the Respondent legal fees, arguing that the Respondent receives child support in excess of $240,000.00 yearly, which is tax-free income, these funds are statutorily designated for the support of the parties' child. The Respondent has already exhausted the $12,500.00 retainer fee paid to her attorneys. Respondent's counsel has represented that there is an outstanding current bill of $27,000.00.

After consideration of the financial circumstances of the case, the financial documentation provided, and the nature of this case, including the fact that this matter is to be the subject of a lengthy hearing, presumably with expert testimony, this Court determines reasonable interim counsel fees to be in the sum of $85,000.00. The Petitioner is directed to pay the sum of $85,000.00 to the Law Firm of Schlissel, Ostrow, and Karabatos, PLLC within fourteen days of service of this Order. Said amount shall be deposited into the law firm's escrow account and the law firm may withdraw from the account as fees are earned. A monthly accounting shall be provided to the Petitioner, as appropriately redacted.

This Constitutes the Decision and Order of this Court.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

ENTER

Dated:April 14, 2011

HON. STACY D. BENNETT

J.F.C. [*6]