| Matter of Chestara v Chestara |
| 2008 NY Slip Op 00151 [47 AD3d 1046] |
| January 10, 2008 |
| Appellate Division, Third Department |
| In the Matter of John D. Chestara, Appellant, v Mary Lou Chestara,Respondent. |
—[*1] Mary Lou Chestara, Ghent, respondent pro se.
Lahtinen, J. Appeal from an order of the Family Court of Columbia County (Czajka, J.),entered May 17, 2007, which, among other things, dismissed petitioner's application, in aproceeding pursuant to Family Ct Act article 4, to modify an order of child support.
The parties are the parents of a daughter (born in 1988). Petitioner, who was a practicingattorney, converted substantial funds from his clients resulting in disbarment (Matter ofChestara, 244 AD2d 699 [1997]) and incarceration. After being released from jail in 1999,he allegedly had little contact with his daughter and eventually stipulated to terms which wereincorporated into a divorce judgment, including that respondent had sole custody of the child andwould receive child support from petitioner. In 2005, petitioner sought visitation with his then17-year-old child. Family Court (Griffin, J.) denied the request noting, among other things, theundisputed fact that petitioner had no contact with his child for numerous years, the child's desirenot to start visitation and the Law Guardian's opinion that compelled visitation was not in thechild's best interest. Shortly thereafter, petitioner commenced this proceeding seeking toterminate his child support obligation alleging that his daughter, now over 18 years old, hadunjustifiably terminated the parent-child relationship and emancipated herself from him. FamilyCourt (Czajka, J.) dismissed the petition. Petitioner appeals.
We affirm. "[W]hile a parent has a statutory duty to support his or her child until the age of21 (see, Family Ct Act § 413 [1] [a]), the child's right to support and the parent'sright to [*2]custody and services are reciprocal" (Matter ofSmith v Bombard, 294 AD2d 673, 675 [2002], lv denied 98 NY2d 609 [2002][internal quotation marks and citations omitted]; see Matter of Chambers v Chambers,295 AD2d 654, 654 [2002]). "[A] child of employable age, who actively abandons thenoncustodial parent by refusing all contact and visitation, without cause, may be deemed to haveforfeited his or her right to support" (Matter of Chamberlin v Chamberlin, 240 AD2d908, 909 [1997]; see Foster vDaigle, 25 AD3d 1002, 1004 [2006], appeal dismissed 6 NY3d 890 [2006]).
Here, the parties agreed to have Family Court decide the application based upon the paperssubmitted to the court. Those papers included evidence that petitioner failed to maintain contactwith the child for a significant period of time and engaged in conduct that fractured thechild-parent relationship. The child is currently in college and not financially independent. Wefind no basis to reverse, as urged by petitioner, based upon Family Court's reference to andreliance in part upon factual findings in the earlier Family Court (Griffin, J.) decision in thevisitation petition. It was petitioner who placed that decision before the court by attaching it tohis papers and, in fact, he quoted in his petition parts of the decision. Even if the findings in suchdecision were not considered, the record supports Family Court's (Czajka, J.) conclusion thatpetitioner failed to meet his burden of establishing that the breakdown in the child-parentrelationship was not the result of his own conduct (see Matter of Kinney v Simonds, 276AD2d 882, 883-884 [2000]; Matter of Ogborn v Hilts, 269 AD2d 679, 680 [2000];Matter of Wiegert v Wiegert, 267 AD2d 620, 621 [1999]). The remaining argumentshave been considered and found unavailing.
Mercure, J.P., Peters and Carpinello, JJ., concur. Ordered that the order is affirmed, withoutcosts.