Shapiro v. Rosa

—Order, Supreme Court, New York County (Walter Schackman, J.), entered August 25, 1994, adjudging plaintiff husband in contempt for willful failure to pay child support of $34,275 and previously assessed attorneys’ fees of $2,500, awarding defendant wife an additional $2,500 in attorneys’ fees for her prosecution of the instant contempt motion, and directing the husband’s incarceration unless he paid such sums within 15 days, unanimously modified, on the law and the facts, to reduce the finding of child support arrears to $26,507, to vacate the award of attorneys’ fees for prosecuting this motion, and to remand the matter for a hearing on the reasonable value of the services performed by the wife’s attorneys in prosecuting this motion, including the appellate proceedings insofar as they relate to the enforcement of the child support obligation other than recomputation of the amount due, and otherwise affirmed, without costs. The husband’s bare conclusory claim of financial inability to comply with his child support obligation, unsupported by any documentation, was insufficient to warrant either a hearing on his financial ability (Farkas v Farkas, 209 AD2d 316, 317-318; Bowie v Bowie, 182 AD2d 1049), or the assignment of counsel on the ground of indigence. We modify the finding on arrears as above indicated to take account of payments admittedly received by the wife between October 1, 1991 through October 2, 1993, and remand for a hearing on the issue of attorneys’ fees, which should not have been awarded on the basis of affirmations alone (Osborn v Osborn, 144 AD2d 350, 352). At such hearing, testimony shall also be taken with respect to counsel 182 fees on these appellate proceedings, insofar as they relate to the enforcement of the child support obligation other than the recomputation of the amount due. Concur — Ellerin, J. P., Rubin, Nardelli, Williams and Mazzarelli, JJ.