
    Shirley H. Cooper, Appellant, v Estate of Irving Cooper, Deceased, Respondent.
    (Appeal No. 1.)
    [778 NYS2d 651]
   Appeal and cross appeal from an order of the Supreme Court, Erie County (Barbara Howe, J.), entered August 11, 2003. The order confirmed the report and recommendation of a Judicial Hearing Officer and denied plaintiffs application for counsel fees and costs.

It is hereby ordered that said appeal from the order insofar as it confirmed the report and recommendation of the Judicial Hearing Officer he and the same hereby is unanimously dismissed (see CPLR 5501 [a] [1]) and the order is modified on the law by granting the application for counsel fees and costs and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: Supreme Court properly confirmed the report and recommendation of a Judicial Hearing Officer (JHO) following a hearing that plaintiff is entitled to spousal support payments from defendant, the estate of her former husband. We thus affirm the judgment for arrears in appeal No. 2. We note that defendant’s contention that continued spousal support is not required by the 1974 judgment of divorce after the death of the former husband is made for the first time on appeal and, in any event, contradicts defendant’s position at the hearing before the JHO. We further conclude with respect to appeal No. 1, however, that the court abused its discretion in denying plaintiffs application for counsel fees and costs. Plaintiff was forced to incur the fees and costs upon defendant’s failure to pay the court-ordered spousal support since January 2002, and that support constitutes this elderly plaintiffs only income other than Social Security (see Able v Able, 222 AD2d 1125 [1995]). We therefore modify the order in appeal No. 1 accordingly, and we remit the matter to Supreme Court to determine the amount of reasonable counsel fees and costs to be awarded. Present—Green, J.P., Wisner, Scudder, Gorski and Lawton, JJ.  