Palyswiat v. Palyswiat

Appeal from a judgment of the Supreme Court at Special Term (Conway, J.), entered October 2, 1980 in Saratoga County, which, inter alia, dismissed a writ of habeas corpus and awarded counsel fees to respondent. On February 6, 1978, the parties herein were divorced and a dispute subsequently developed over respondent’s alleged thwarting of petitioner’s attempts to exercise his visitation rights with regard to the children of the marriage. As a result, petitioner obtained a writ of habeas corpus requiring the production of the children before the Supreme Court, Albany County, on September 19,1980, and ultimately the court denied the writ and directed petitioner to pay respondent’s counsel fees in the amount of $500. On this appeal, petitioner challenges only the award of counsel fees to respondent, and we find that the award should be sustained. While an award of counsel fees should be made only when it is required to insure that an indigent wife has legal representation, in this instance the court had before it respondent’s sworn affidavit that she could not afford to pay her attorneys and nothing to indicate that she could pay for representation. Under these circumstances, it was certainly not evident from the record that she could “well afford to pay her own attorney” (Matter of Frye v Truhn, 68 AD2d 989, 990), and no abuse of discretion has been shown with regard to the challenged award. In so ruling, we lastly note that petitioner’s contention that he was present in court on the day of the hearing with a law associate of his attorney is corroborated by nothing in the record, and Special Term expressly noted in its order that neither petitioner nor his attorney had appeared. Accordingly, it is obvious that if petitioner and the associate were present, they'failed to make their presence known to the court, and it was consequently justified in conducting the proceedings without them. Judgment affirmed, with costs. Main, J. P., Mikoll, Yesawich, Jr., Weiss and Herlihy, JJ., concur.