| Matter of Emmitt-Klinger v Klinger |
| 2008 NY Slip Op 01664 [48 AD3d 992] |
| February 28, 2008 |
| Appellate Division, Third Department |
| In the Matter of Sharon Emmitt-Klinger, Respondent, v Robert M.Klinger, Appellant. |
—[*1] Frederick J. Neroni, Delhi, for respondent.
Cardona, P.J. Appeals (1) from an order of the Supreme Court (Peckham, J.), enteredNovember 16, 2006 in Delaware County, which, among other things, granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 4, to direct respondent to pay childsupport and arrears, and (2) from an order of said court, entered May 9, 2007 in DelawareCounty, which denied respondent's motion for leave to renew.
In February 2005, the parties entered into a separation agreement whereby respondent agreedto, among other things, pay child support. The separation agreement was incorporated but notmerged into the parties' March 2005 judgment of divorce. Petitioner commenced this proceedingin March 2006 seeking to enforce the child support provisions of the agreement claiming thatrespondent had not made any payments. Following a hearing, Supreme Court, among otherthings, ordered respondent to pay $150 per week in child support as set forth in the separationagreement and $100 per week toward the arrears. Supreme Court denied respondent's subsequentmotion for leave to renew, prompting these appeals.
Respondent specifically contends that Supreme Court erred in ordering him to pay childsupport arrears, claiming that the separation agreement upon which the judgment and order werebased is invalid inasmuch as it was fraudulently procured. He argues that the parties neverintended to enforce the separation agreement because the divorce proceeding was, in fact, part of[*2]a joint scheme to avoid bankruptcy. However, a review of therecord fails to establish that respondent was fraudulently induced to execute the separationagreement. Rather, the court resolved the conflicting testimonies in favor of petitioner whoindicated that she informed respondent that she intended to divorce him, and we find no reason inthis record to disturb the court's credibility determinations (see Broer v Hellermann, 2AD3d 1247, 1248 [2003]). Furthermore, to the extent that respondent contends that the courterred in failing to admit into evidence a journal entry written by petitioner that respondent claimsevinces the parties' alleged scheme and casts doubt on the validity of the separation agreement,any error in the court's ruling is harmless inasmuch as petitioner was cross-examined regardingthe journal entry. Moreover, a review of the record does not establish that the admission of thatdocument would have substantially influenced the outcome herein (see CPLR 2002;Khan v Galvin, 206 AD2d 776, 777 [1994]; Dizak v State of New York, 124AD2d 329, 330-331 [1986]).
Finally, we find no error in Supreme Court denying respondent's motion to renew.Respondent failed to establish that the information was previously unknown nor did he present ajustifiable excuse for not having submitted such information at the time of the hearing (see Cerasaro v Cerasaro, 9 AD3d663, 666 [2004]; Wahl v Grippen, 305 AD2d 707, 707 [2003]).
Peters, Spain, Lahtinen and Kane, JJ., concur. Ordered that the orders are affirmed, withoutcosts.