This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

[edited for publication]

FEES -- Court Fees (filing fees on appeals on Family Court matters) -- Exemption From (when municipal attorney represents a presentment agency or an indigent spouse in appeals from Family Court order)

CIVIL PRACTICE LAW AND RULES, §8022; FAMILY COURT ACT, §1118: The fee provisions of CPLR, §8022 are applicable to appeals from orders of the Family Court in juvenile delinquency proceedings in which the corporation counsel or county attorney represents the presentment agency or in support proceedings in which the corporation counsel or county attorney represents an indigent spouse, unless the Court has permitted the spouse to proceed as a "poor person".

This is in reply to your inquiry in which you requested an opinion regarding the applicability of the fee provisions of Civil Practice Law and Rules (CPLR), §8022(b) to appeals from orders of the Family Court which are prosecuted by the corporation counsel, county attorney, or other agency representing a municipality.

You indicate that these appeals generally arise in two proceedings: (1) a juvenile delinquency proceeding in which the corporation counsel or county attorney represents the presentment agency and the underlying petition is dismissed; and (2) support proceedings where the corporation counsel or county attorney represents an indigent spouse. You have asked whether an exemption from the fee imposed by section 8022(b) would be justified in view of the fact that juvenile delinquency matters are quasi-criminal in nature and that the party represented in a support proceeding is usually indigent.

Section 8022 provides:

Fee on civil appeal

(a) A county clerk, upon filing a notice of appeal, is entitled to a fee of fifty dollars, payable in advance.

(b) The clerks of the appellate divisions of the supreme court and the clerk of the court of appeals are entitled, upon the filing of a record on a civil appeal or a statement in lieu of record on a civil appeal, as required by rule 5530 of this chapter, to a fee of two hundred fifty dollars, payable in advance.

With respect to juvenile delinquent proceedings, you suggest in your letter that such proceedings are quasi-criminal in nature and as such would not be subject to fees which are applicable to civil matters. However, such proceedings are governed by Article 3 of the Family Court Act which grants the Family Court exclusive original jurisdiction (Family Court Act, §302.1) and, as a general rule, the provisions of the Criminal Procedure Law do not apply (Family Court Act, §303.1). While the courts have described these proceedings as quasi-criminal rather than civil in nature (In re Gregory D., 19 NY2d 55, 277 NYS2d 675 [1966]; Matter of David G., 124 Misc 2d 579, 476 NYS2d 758 [1984]) and stated that the proceedings do involve criminal conduct, the process itself is a civil proceeding (In re Carmelo E., 57 NY2d 431, 456 NYS2d 739 [1982]). Thus, it would appear that these proceedings are to be treated as civil matters and are subject to the fees imposed by section 8022 on civil appeals.

With regard to the imposition of the fee in the case of a support proceeding for an indigent spouse, section 8022 provides no exemption for such cases. It has been our view that municipal governments are not exempt from court filing fees unless some statute expressly so provides (see 1988 Opns St Comp No. 88-38, p 75; 1983 Opns St Comp No. 83-20, p 22). If the spouse proceeded as a "poor person" in accordance with section 1101 of the CPLR, he or she would be exempted from any court fees, including the one imposed by section 8022(b), by virtue of section 1102(d) of the CPLR. Where an indigent spouse is being represented by a municipal agency and the agency is responsible for the payment of any court fees, we do not believe that the spouse could proceed as a "poor person" under section 1101.¹ Ultimately, however, it is the court acting in its judicial capacity which determines whether a party will be allowed to proceed as a "poor person", and if the court, after a proper application, should grant such a status to a spouse being represented by a municipal agency then the spouse would be exempted from the fees imposed by section 8022(b). Consequently, it is our opinion that where an indigent spouse is being represented by a municipal agency in a support proceeding, the party would not be exempted from the fees imposed by section 8022(b) upon the filing of a civil appeal in the Appellate Division or the Court of Appeals unless the court has permitted the spouse to proceed as a "poor person".

Finally and most significantly, our conclusions with respect to both juvenile delinquency proceedings and proceedings where the municipal attorney represents an indigent are further supported by the provisions of section 1118 of the Family Court Act. Section 1118, which speaks to the issue of the applicability of the CPLR to appeals under the Family Court Act, provides in part:

The provisions of the civil practice law and rules apply where appropriate to appeals under this article, provided, however, that the fee required by section eight thousand twenty-two of the civil practice law and rules shall not be required where the appellant or attorney certifies that the appellant has been assigned counsel pursuant to section two hundred forty-nine, two hundred sixty-two or eleven hundred of this act or section seven hundred twenty-two of the county law, or is represented by a legal aid society or a federally-funded legal services program for indigents. 

Thus, the Legislature has expressly provided for exceptions to the fees contained in section 8022 in two situations where an indigent is represented by a party who might have the means to pay the fee. Under the accepted rules of statutory construction it must be assumed that it was the intention of the Legislature that those types of situations not clearly embraced within the exceptions remain subject to the fee (McKinney's Cons Laws of N.Y., Book 1, Statutes, §240, p 411; see, Deth v Castimore, 245 App Div 156, 281 NYS 114 [1935]).

Therefore, it is our opinion that the Legislature intended that the fees imposed by section 8022 would be applicable, aside from the exemption, to any appeal from the Family Court in juvenile delinquency proceedings and support proceedings where a municipal attorney represents an indigent spouse.

July 1, 1994
Martin Brownstein, Esq., Clerk of the Court
Appellate Division, Second Dep't

¹ This is particularly true in light of the discussion, infra, concerning the provisions of Family Court Act, §1118 which provide an exemption from the fees upon appeal where an indigent is represented by assigned counsel or a federally funded legal services corporation. We would also note that under section 111-c of the Social Services Law, where a social services district is involved in the enforcement and collection of support, it is required to obtain assignments to the State and to such district of support rights of each applicant for or recipient of aid to dependent children or home relief. In such instances where an indigent spouse is being represented by the corporation counsel or county attorney, it is the municipal government which will actually be receiving most of any monetary recovery and as such it would be the real party in interest in such a proceeding. It is unlikely that the court would allow a municipality to proceed as a "poor person" under section 1101.