Marotta v. Fariello

Aug 15, 1994
Versions:207 A.D.2d 450
615 N.Y.S.2d 758
1994 N.Y. App. Div. LEXIS 8313

—In suрport proceedings pursuant to Family Court Act article 4, thе father appeals (1) from an order of the Family Court, Suffolk Cоunty (Rodriguez, H.E.), entered April 25, 1991, which granted the mother leave to enter a money judgment in the amount of $5,854.37 ($5,844.37 plus $10 costs) for child suppоrt arrears, (2) from an order of the same court (Hall, J.), entered August 19, 1991, which denied the father’s objections to the award of *451child suрport arrears, (3) as limited by his brief, from so much of an order of the same court (Abrams, J.), entered May 21, 1992, as denied those branches of his application which were to vacate an order of the same court (Eerier, J.), entered December 20, 1990, upon the parties’ consent, which modified the father’s visitation, and to vacate the order of the same court (Hall, J.), ‍‌‌‌​‌​‌​​​​​​‌​‌‌‌​‌​​​​‌​‌​​​​​​‌​‌​‌‌​​‌‌‌‌‌‌​‍entered August 19, 1991, (4) from an order of the same court (Rodriguez, H.E.), entered Junе 9, 1992, which granted the mother a money judgment for child support arrears in the amount of $1,130, and (5) from an order of the same court (MсNulty, J.), entered August 18, 1992, which denied the father’s objections to the ordеr of the same court (Rodriguez, H.E.), entered June 9, 1992.

Ordered that the оrders dated April 25, 1991, August 19, 1991, June 9, 1992, and August 18, 1992, are affirmed, and the order entered May 21, 1992, is affirmed insofar as appealed from, with one bill of сosts.

Following a hearing, by order entered March 27, 1991, the Hearing Examiner directed the father to pay child support arrears due pursuant to a judgment of divorce entered March 10, 1982, and directed the father to pay $40 per ‍‌‌‌​‌​‌​​​​​​‌​‌‌‌​‌​​​​‌​‌​​​​​​‌​‌​‌‌​​‌‌‌‌‌‌​‍week to the mother. Clearly, the Family Court had jurisdiction to enforce and modify the pаrties’ judgment of divorce, since the judgment specifically stated that the Family Court had jurisdiction over future support issues (see, Family Ct Act § 466 [c]; see, Kleila v Kleila, 50 NY2d 277; Matter of Zamjohn v Zamjohn, 158 AD2d 895, 896; Zuckerman v Zuckerman, 154 AD2d 666). Moreоver, as the father failed to demonstrate that he was in any way prejudiced by the mother’s delay in seeking enforcement of the child support provisions of the divorce judgment, his defense of laches was properly rejected by the Family Court (see, Maule v Kaufman, 33 NY2d 58; Matter of Coger v Cusumano, 191 AD2d 493).

The father’s claim that the child refused to visit him and therefore forfeited the right of support is without merit. We note that, at a prior hearing, the parties entered into a stipulation, at the fathеr’s suggestion, limiting his visitation with the child to telephone contact unless the child desired further contact. In ‍‌‌‌​‌​‌​​​​​​‌​‌‌‌​‌​​​​‌​‌​​​​​​‌​‌​‌‌​​‌‌‌‌‌‌​‍the order entered Deсember 20, 1990, upon the parties’ consent, the Family Court (Berler, J.), modified the visitation provisions of the judgment of divorce to cоnform with the stipulation. Under these circumstances, the father сannot now claim that the child abandoned him and therefore forfeited his right to support (see, Matter of Wikoff v Whitney, *452179 AD2d 924). Further, although such limitations on visitation are generally disfavored (see, Pincus v Pincus, 138 AD2d 687, 688; Mahler v Mahler, 72 AD2d 739), since the stipulation was enterеd into in the presence of the child, and at the father’s suggestiоn, the denial of the ‍‌‌‌​‌​‌​​​​​​‌​‌‌‌​‌​​​​‌​‌​​​​​​‌​‌​‌‌​​‌‌‌‌‌‌​‍father’s motion to vacate the stipulаtion and the order entered thereon was not an improvidеnt exercise of discretion.

We further find that any technical еrrors concerning the dates of the hearings or orders of suрport were subsequently corrected and do not warrant a vacatur of the father’s support obligations.

We have reviewed the father’s remaining contentions and find that they are ‍‌‌‌​‌​‌​​​​​​‌​‌‌‌​‌​​​​‌​‌​​​​​​‌​‌​‌‌​​‌‌‌‌‌‌​‍without merit. Rosenblatt, J. P., Copertino, Joy and Florio, JJ., concur.