Bender v. Bender

In a matrimonial action in which the parties were divorced by judgment dated September 11, 1985, the plaintiff husband appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Queens County (Zelman, J.), dated January 9, 1991, as awarded the defendant wife counsel fees of $3,500 upon her application for a change of custody and ancillary relief.

Ordered that the judgment is reversed insofar as appealed from, on the facts and as an exercise of discretion, with costs, and the wife’s application for an award of counsel fees is denied.

In view of the circumstances of this case, the relative financial positions of the parties, and the wife’s pursuit of a change in custody long after the parties’ child had reached the age of majority (see, Belsky v Belsky, 172 AD2d 576; Reich v Reich, 149 AD2d 676), we find that the Supreme Court improvidently exercised its discretion in directing the husband to pay $3,500 in counsel fees to the wife’s attorney. Mangano, P. J., Sullivan, O’Brien, Ritter and Pizzuto, JJ., concur.