89 A.D.2d 957 | N.Y. App. Div. | 1982
Appeals by defendant from (1) an order of the Supreme Court, Nassau County (Oppido, J.), dated December 18,1981, which denied his motion to set aside an oral decision (made after a hearing on plaintiff’s motion to suspend defendant’s visitation rights for his failure to pay child support) making his right of visitation with two of his children in plaintiff’s custody conditional upon his payment of child support of $100 per week, and (2) a further order of the same court, dated January 15,1982, which denied his motion to suspend child support, on the ground that he had been denied visitation with two of his children. (The order dated Dec. 18, 1981 is deemed to be the order entered on the oral decision.) Order dated December 18, 1981 reversed, on the law and the facts, without costs or disbursements, and plaintiff’s motion is denied. Order dated January 15, 1982 affirmed, without costs or disbursements. The parties were divorced pursuant to a judgment entered June 6, 1978, and plaintiff was awarded custody of two of the three infant issue of the marriage. Defendant was required to pay plaintiff $66 per week per child, but soon found himself in substantial arrears. At the hearing, plaintiff testified that defendant paid no child support from November 30,1979 until March, 1981, and from March, 1981 until October, 1981 paid plaintiff only $20 per week. Plaintiff asked the court to suspend defendant’s visitation rights on the ground that he had failed to make support payments. Special Term granted plaintiff’s motion to the extent that defendant’s right to visit with his children was made contingent upon his payment of $100 per week child support for both children. Thereafter, defendant moved, pursuant to section 241 of the Domestic Relations Law, to terminate his obligation to pay child support on the ground that visitation was withheld. In the order appealed from dated January 15,1982, said motion was denied. There is no evidence in the record that visitation would be harmful to the children and their well-being, nor is there evidence that permitting visitation would cause plaintiff financial hardship. In addition, there is no showing of other facts which would justify making visitation contingent upon payment of support. After the