W
wjmarano
Guest
NEW YORK
v. Patrice S. Perez, Appellant. (Appeal No. 2.)
Supreme Court, Appellate Division, Fourth Department, New York
(May 30, 1997)
basis in the record' " (Matter of Hill v Rogers, 213 AD2d 1079).
We conclude that the court's determination is in the child's best interests (see generally, Eschbach v Eschbach, 56 NY2d 167, 171). The record establishes that both parties offer a supportive, *869 nurturing, and loving environment for the child. It also establishes that defendant has consistently made derogatory and disparaging remarks about plaintiff, denied plaintiff telephone contact with the child, interfered with plaintiffs visitation with the child and interrogated the child regarding her visitations with plaintiff. By interfering with the child's relationship with plaintiff, defendant acted contrary to the best interests of the child (see, Young v Young, 212 AD2d 114, 122). Indeed, her actions " 'raise a strong probability that [defendant] is unfit to act as custodial parent' " (Daghir v Daghir, 82 AD2d 191, 194, affd 56 NY2d 938). The record further establishes that defendant's conduct has greatly upset the child. Thus, the attitude of defendant toward plaintiff is shown to have "substantially interferefd] with her ability to place the needs of the [child] before her own in fostering a continued relationship with the noncustodial parent" (Janecka v Franklin, 150 AD2d 755, 757). The court's determination to modify the custodial arrangement is further supported by the child's expressed preference to live with plaintiff because of defendant's constant interrogation concerning visitation with plaintiff ( see generally, Kavanakudiyil v Kavanakudiyil, 203 AD2d 250, 252).
The fact that this custody determination results in the separation of the child from her 18-year-old sister does not alter the result. The child's sister has refused to have a relationship with plaintiff, and thus the best interests of the children warrant their residence with different parents (see, Matter of Bilodeau v Bilodeau, 161 AD2d 906; Wurm v Wurm, 87 AD2d 590, 591, appeal dismissed 56 NY2d 886).
We further conclude that the court did not abuse its discretion in refusing to direct a psychological evaluation of the child in the absence of proof that she displayed significant emotional problems (see, Matter of Paul C. v Tracy C., 209 AD2d 955). The court also did not abuse its discretion in limiting the introduction of evidence of domestic violence during the parties' marriage in this postdivorce custody proceeding.
We reject defendant's contention that the court erred in modifying the divorce decree by suspending plaintiffs obligation to pay child support for the parties' older child until further order of the court. The record is replete with evidence that the older child has refused to visit with plaintiff or to have any relationship with him. Because the older child, "a minor of employable age and in full possession of her faculties," has voluntarily refused to have a relationship with plaintiff, she has forfeited her right to support from him (Matter *870 of Roe v Doe, 29 NY2d 188, 192; see, Basi v Basi, 136 AD2d 945, 947, Iv dismissed 72 NY2d 952).
We agree with defendant, however, that the court's directive that she pay $100 per week in child support to plaintiff for the younger child must be vacated. The record establishes that the court failed to determine defendant's child support obligation pursuant to the relevant provisions of the Domestic Relations Law (see, Domestic Relations Law § 240
239 A.D.2d 868
659 N.Y.S.2d 642, 1997 N.Y. Slip Op. 05044
(Cite as: 239 A.D.2d 868)
[1-b] [3]; [c] [2], [3]; [f]; Matter of DeVoe v Erck, 226 AD2d 1111; Riseley v Riseley, 208 AD2d 132, 134-136). We therefore modify the order by deleting from the fourth ordering paragraph the directive that defendant pay plaintiff $100 per week child support for the parties' younger child and remit the matter to Supreme Court to redetermine defendant's child support obligation. We have reviewed defendant's remaining contentions and conclude that they are without merit. (Appeal from Order of Supreme Court, Monroe County, Siracuse, J.-Custody.)
Copr. (c) 2001, Randy A. State, State of New York.
Daniels, Secretary of
Present-Green, J. P., Lawton, Doerr, Balio and N.Y.A.D.,1997.
Perez v Perez
90 Misc.2d 848
396N.Y.S.2d 134
(Cite as: 90 Misc.2d 848)
In the Matter of Nicolette G., Petitioner,
v. Raymond S., Respondent. [FN*]
Family Court, Queens County,
June 14, 1977
Parent and child—support of children—disregard of visitation rights.
(1) There appears to be a complete flouting and disregard of visitation rights granted to respondent father by the Supreme Court in a divorce proceeding. The children adamantly and willfully refused to agree to see their father. Under the circumstances, no child support will be payable for any week in which there is not complete compliance with the order of visitation.
(2) A payroll deduction order is terminated, it appearing that respondent's job may be in jeopardy by reason thereof, but it will be reinstated if there is any further default in support payments.
Joseph O.Melvin Weinberger for Giaimo for respondent.
OPINION OF THE COURT Kenneth W. O'Hare, J.
This court is not disposed to enforce one facet of a Supreme Court determination in a divorce proceeding, that is, child support, when there appears to be a complete flouting and disregard of another facet of that determination, that is, rights of visitation. (See Matter of Bickford v Bickford, 83
Copyright © 2001, Randy A. Daniels, Secretary of State, State of New York.Misc 2d 571; Matter of Roe v Doe, 29 NY2d 188; also Feuer v Feuer, 50 AD2d 772; Abraham v Abraham, 44 AD2d 675; Matter of Fleischer v Fleischer,25AD2d90\.)In May of this year, the Supreme Court issued a lengthy opinion in which it determined that the father was entitled to visitation privileges and this determination was made after a psychiatric evaluation determining that such visitation should be had.On May 23, 1977, an order was entered in the Supreme Court to effect that decision.At the hearing before me, 1 made every attempt to secure the help of the petitioner in seeing that the children, ages 11 and 15. would co-operate in the determination of the Supreme Court. On May 25, 1977, both children were submitted for an interview by the court and the court liaison officer to see if they could be persuaded to see their father under any circumstances at all, and they adamantly and willfully refused to agree thereto.Under these circumstances, I am not inclined to enforce a support order, except if it be on a public charge basis, and could then also consider possible responsibility of the mother and stepfather to contribute to support. A payroll deduction order was made in this matter, when it appeared to me that the father was unduly delaying a hearing in this matter, and had not complied with the order of support entered February 15, 1977. I note that the respondent did follow my directions as to a cash payment of $200 and am now in receipt of a communication that would appear to indicate that his job with American Express Company may be in jeopardy by reason of the payroll deduction order. Accordingly, the payroll deduction order of April 27, 1977 is hereby terminated forthwith, but it will be reinstated if there be any further default in support payments.
The order of support made in this court on the date of February 15, 1977 is hereby modified to provide that no *850 support will be payable for any week in which there is not complete compliance with the Supreme Court order of visitation. ,i•--•
Copr. (c) 2001, Randy A. Daniels, Secretary of
90 Misc.2d 850
396N.Y.S.2d 137
(Cite as: 90 Misc.2d 850)
In the Matter of Benjamin B., Petitioner,
v. Rivka M., Respondent. [FN*]
Family Court, Queens County,
June 16, 1977
FN* Names are fictitious for purposes of publication.
Parent and child-support of children-disregard of visitation rights.
(1) In a proceeding in the Family Court to enforce the visitation provisions of a divorce decree entered by the Supreme Court, petitioner father alleges that respondent has denied him his visitation rights with his daughter. The infant adamantly refuses to visit with petitioner. However, her behavior cannot be condoned. Petitioner is entitled to the visitation rights. The support order is modified to provide that no child support will be payable for any week in which there is not complete compliance with the order of visitation.
Henry R. Eisenberg for petitioner. Miriam Robinson for respondent.
v. Patrice S. Perez, Appellant. (Appeal No. 2.)
Supreme Court, Appellate Division, Fourth Department, New York
(May 30, 1997)
basis in the record' " (Matter of Hill v Rogers, 213 AD2d 1079).
We conclude that the court's determination is in the child's best interests (see generally, Eschbach v Eschbach, 56 NY2d 167, 171). The record establishes that both parties offer a supportive, *869 nurturing, and loving environment for the child. It also establishes that defendant has consistently made derogatory and disparaging remarks about plaintiff, denied plaintiff telephone contact with the child, interfered with plaintiffs visitation with the child and interrogated the child regarding her visitations with plaintiff. By interfering with the child's relationship with plaintiff, defendant acted contrary to the best interests of the child (see, Young v Young, 212 AD2d 114, 122). Indeed, her actions " 'raise a strong probability that [defendant] is unfit to act as custodial parent' " (Daghir v Daghir, 82 AD2d 191, 194, affd 56 NY2d 938). The record further establishes that defendant's conduct has greatly upset the child. Thus, the attitude of defendant toward plaintiff is shown to have "substantially interferefd] with her ability to place the needs of the [child] before her own in fostering a continued relationship with the noncustodial parent" (Janecka v Franklin, 150 AD2d 755, 757). The court's determination to modify the custodial arrangement is further supported by the child's expressed preference to live with plaintiff because of defendant's constant interrogation concerning visitation with plaintiff ( see generally, Kavanakudiyil v Kavanakudiyil, 203 AD2d 250, 252).
The fact that this custody determination results in the separation of the child from her 18-year-old sister does not alter the result. The child's sister has refused to have a relationship with plaintiff, and thus the best interests of the children warrant their residence with different parents (see, Matter of Bilodeau v Bilodeau, 161 AD2d 906; Wurm v Wurm, 87 AD2d 590, 591, appeal dismissed 56 NY2d 886).
We further conclude that the court did not abuse its discretion in refusing to direct a psychological evaluation of the child in the absence of proof that she displayed significant emotional problems (see, Matter of Paul C. v Tracy C., 209 AD2d 955). The court also did not abuse its discretion in limiting the introduction of evidence of domestic violence during the parties' marriage in this postdivorce custody proceeding.
We reject defendant's contention that the court erred in modifying the divorce decree by suspending plaintiffs obligation to pay child support for the parties' older child until further order of the court. The record is replete with evidence that the older child has refused to visit with plaintiff or to have any relationship with him. Because the older child, "a minor of employable age and in full possession of her faculties," has voluntarily refused to have a relationship with plaintiff, she has forfeited her right to support from him (Matter *870 of Roe v Doe, 29 NY2d 188, 192; see, Basi v Basi, 136 AD2d 945, 947, Iv dismissed 72 NY2d 952).
We agree with defendant, however, that the court's directive that she pay $100 per week in child support to plaintiff for the younger child must be vacated. The record establishes that the court failed to determine defendant's child support obligation pursuant to the relevant provisions of the Domestic Relations Law (see, Domestic Relations Law § 240
239 A.D.2d 868
659 N.Y.S.2d 642, 1997 N.Y. Slip Op. 05044
(Cite as: 239 A.D.2d 868)
[1-b] [3]; [c] [2], [3]; [f]; Matter of DeVoe v Erck, 226 AD2d 1111; Riseley v Riseley, 208 AD2d 132, 134-136). We therefore modify the order by deleting from the fourth ordering paragraph the directive that defendant pay plaintiff $100 per week child support for the parties' younger child and remit the matter to Supreme Court to redetermine defendant's child support obligation. We have reviewed defendant's remaining contentions and conclude that they are without merit. (Appeal from Order of Supreme Court, Monroe County, Siracuse, J.-Custody.)
Copr. (c) 2001, Randy A. State, State of New York.
Daniels, Secretary of
Present-Green, J. P., Lawton, Doerr, Balio and N.Y.A.D.,1997.
Perez v Perez
90 Misc.2d 848
396N.Y.S.2d 134
(Cite as: 90 Misc.2d 848)
In the Matter of Nicolette G., Petitioner,
v. Raymond S., Respondent. [FN*]
Family Court, Queens County,
June 14, 1977
Parent and child—support of children—disregard of visitation rights.
(1) There appears to be a complete flouting and disregard of visitation rights granted to respondent father by the Supreme Court in a divorce proceeding. The children adamantly and willfully refused to agree to see their father. Under the circumstances, no child support will be payable for any week in which there is not complete compliance with the order of visitation.
(2) A payroll deduction order is terminated, it appearing that respondent's job may be in jeopardy by reason thereof, but it will be reinstated if there is any further default in support payments.
Joseph O.Melvin Weinberger for Giaimo for respondent.
OPINION OF THE COURT Kenneth W. O'Hare, J.
This court is not disposed to enforce one facet of a Supreme Court determination in a divorce proceeding, that is, child support, when there appears to be a complete flouting and disregard of another facet of that determination, that is, rights of visitation. (See Matter of Bickford v Bickford, 83
Copyright © 2001, Randy A. Daniels, Secretary of State, State of New York.Misc 2d 571; Matter of Roe v Doe, 29 NY2d 188; also Feuer v Feuer, 50 AD2d 772; Abraham v Abraham, 44 AD2d 675; Matter of Fleischer v Fleischer,25AD2d90\.)In May of this year, the Supreme Court issued a lengthy opinion in which it determined that the father was entitled to visitation privileges and this determination was made after a psychiatric evaluation determining that such visitation should be had.On May 23, 1977, an order was entered in the Supreme Court to effect that decision.At the hearing before me, 1 made every attempt to secure the help of the petitioner in seeing that the children, ages 11 and 15. would co-operate in the determination of the Supreme Court. On May 25, 1977, both children were submitted for an interview by the court and the court liaison officer to see if they could be persuaded to see their father under any circumstances at all, and they adamantly and willfully refused to agree thereto.Under these circumstances, I am not inclined to enforce a support order, except if it be on a public charge basis, and could then also consider possible responsibility of the mother and stepfather to contribute to support. A payroll deduction order was made in this matter, when it appeared to me that the father was unduly delaying a hearing in this matter, and had not complied with the order of support entered February 15, 1977. I note that the respondent did follow my directions as to a cash payment of $200 and am now in receipt of a communication that would appear to indicate that his job with American Express Company may be in jeopardy by reason of the payroll deduction order. Accordingly, the payroll deduction order of April 27, 1977 is hereby terminated forthwith, but it will be reinstated if there be any further default in support payments.
The order of support made in this court on the date of February 15, 1977 is hereby modified to provide that no *850 support will be payable for any week in which there is not complete compliance with the Supreme Court order of visitation. ,i•--•
Copr. (c) 2001, Randy A. Daniels, Secretary of
90 Misc.2d 850
396N.Y.S.2d 137
(Cite as: 90 Misc.2d 850)
In the Matter of Benjamin B., Petitioner,
v. Rivka M., Respondent. [FN*]
Family Court, Queens County,
June 16, 1977
FN* Names are fictitious for purposes of publication.
Parent and child-support of children-disregard of visitation rights.
(1) In a proceeding in the Family Court to enforce the visitation provisions of a divorce decree entered by the Supreme Court, petitioner father alleges that respondent has denied him his visitation rights with his daughter. The infant adamantly refuses to visit with petitioner. However, her behavior cannot be condoned. Petitioner is entitled to the visitation rights. The support order is modified to provide that no child support will be payable for any week in which there is not complete compliance with the order of visitation.
Henry R. Eisenberg for petitioner. Miriam Robinson for respondent.