| Matter of Russo v Irwin |
| 2008 NY Slip Op 02518 [49 AD3d 1039] |
| March 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Michael J. Russo, Appellant, v Tobi J. Irwin,Respondent. |
—[*1] Kenneally & Tarantino, Glens Falls (Dennis J. Tarantino of counsel), forrespondent.
Spain, J. Appeal from an order of the Family Court of Warren County (Breen, J.), enteredOctober 20, 2006, which dismissed petitioner's application, in a proceeding pursuant to FamilyCt Act article 4, to modify a prior order of support.
Petitioner and respondent are the parents of a daughter (born in 1986). The marriage betweenthe parties was terminated by judgment of divorce on December 16, 1988 and, as part of aproperty settlement agreement incorporated into the judgment of divorce, petitioner agreed to pay$65 per week for the support of the child. Sometime in late 1991, the parties reconciled andbegan residing together as a family and sharing assets. Petitioner claims that, shortly after theparties reconciled, respondent informed him that child support was unnecessary because theparties were residing together as a family unit and commingling assets, and that petitioner'scontribution to the care and support of the child and maintenance of respondent exceeded theamount of his support obligation.
The support order was not suspended, however, until 1998, after respondent received a letterfrom the Warren County Support Collection Unit informing her that it had come to its attentionthat the child support order of $65 per week had a delinquency of $28,811.49. Upon learning ofthe parties' reconciliation, the coordinator of the child support unit filed a petition on behalf ofrespondent, which stated that "the parties have reconciled and that [respondent] does not wish toenforce the Order of Support." On March 10, 1998, Family Court entered an order on [*2]consent of the parties suspending petitioner's support obligation,fixing arrears in the amount of $29,851.49 and vacating the "balance of Judgment due[respondent] with consent from both parties." Petitioner was not represented by counsel at thattime, and he asserts that it was his understanding that the arrears amount referenced in the March1998 order was extinguished.
The parties again separated sometime in 1999 and the child resumed living solely withrespondent. In 2001, respondent sought to reinstate child support and immediate payment of the$29,851.49 due from petitioner in arrears, as arguably established by the March 1998 order.Petitioner was represented by counsel in that proceeding. A March 27, 2002 order foundpetitioner in violation of a prior, temporary support order, fixed arrears at $30,386.49 anddirected petitioner to pay $65 per week for child support and $35 per week to be applied to thearrears. Petitioner did not comply with the March 2002 order and, by order dated January 30,2003, a Support Magistrate calculated new arrears at $419, plus interest, for a total of $32,721.08in arrears owed by petitioner.
After a series of petitions and resulting orders altering the parties' support obligations due tochanges in the physical custody of the child, in all of which the arrears owed by petitionercontinued to be reflected, an order was entered dated July 21, 2005 whereby petitioner wasdirected to pay $75 weekly to satisfy arrears still owing to respondent of $26,776.76. At thatpoint, the child was, and apparently still is, living independently and no child support obligationwas in effect. Petitioner, pro se, filed an objection to the entry of the judgment and requested anew hearing to present evidence that the arrears had been improperly assessed against himbecause respondent had waived child support during the time that the parties resided together. Ina decision and order on the objections, Family Court found that petitioner had previously had theopportunity to object to the arrears, that his objections at this point were untimely and thatFamily Ct Act § 451 prohibits the reduction or cancellation of child support arrears.
Petitioner commenced this proceeding in March 2006 by petition seeking to expunge thechild support arrears and again requesting a trial on the issue. A Support Magistrate dismissedthat petition on collateral estoppel grounds. Petitioner filed objections, which were denied byFamily Court. In its October 20, 2006 order, the court agreed with the Support Magistrate thatcollateral estoppel barred petitioner from raising the issue of arrears. Petitioner now appeals fromFamily Court's order.
"[W]hether to apply collateral estoppel in a particular case depends upon 'general notions offairness involving a practical inquiry into the realities of the litigation' " (Jeffreys v Griffin, 1 NY3d 34, 41[2003], quoting Matter of Halyalkar v Board of Regents of State of N.Y., 72 NY2d 261,268 [1988]; see Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535US 1096 [2002]). The doctrine is discretionary and "should not be applied rigidly ormechanically" (Martin v Reedy, 194 AD2d 255, 259 [1994]; see D'Arata v New YorkCent. Mut. Fire Ins. Co., 76 NY2d 659, 668 [1990]; Matter of Halyalkar v Board ofRegents of State of N.Y., 72 NY2d at 268). The decision to apply collateral estoppel in anyparticular case should be based upon " 'what are often competing policy considerations, includingfairness to the parties, conservation of the resources of the court and the litigants, and the societalinterests in consistent and accurate results' " (Martin v Reedy, 194 AD2d at 259-260,quoting Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 153 [1988]; see Brown v State of New York, 9AD3d 23, 26-27 [2004]).
Here, the prerequisites to application of the doctrine—that the issue is identical to one[*3]previously and necessarily resolved and that petitioner had afull and fair opportunity to contest it (see Buechel v Bain, 97 NY2d at303-304)—arguably have been met in that petitioner's liability for arrears was establishedin several court orders dating back as far as 1998 and, since then, the amount of arrears has beenaddressed in numerous proceedings in which petitioner could have raised an objection. We areunpersuaded, however, that the equitable and discretionary doctrine should be applied under thecircumstances of this particular case. The 1998 order which first established arrears wasambiguous, petitioner was not at that point represented by counsel and, significantly, no hearingwas ever held on the issue. Further, petitioner's position has arguable merit; he claims that oncethe parties reconciled in 1991, they continually resided as a family, operated a business togetherand shared all expenses. He asserts that, at the beginning of this period, respondent expresslywaived child support. Respondent's waiver of child support as reflected in the 1998 order onconsent provides some support to petitioner's version of events.
Significantly, this is not a case where a party is seeking to have arrears forgiven on the basisof waiver after the arrears validly accrued (cf. Matter of Dox v Tynon, 90 NY2d 166,175-176 [1997]; see Family Ct Act § 451). Instead, petitioner is contending thatrespondent expressly and prospectively waived child support when they reconciled and,therefore, petitioner is seeking to establish that arrears never accrued rather than that any arrearsshould be forgiven (see Matter ofWilliams v Chapman, 22 AD3d 1015, 1016 [2005]; Matter of O'Connor vCurcio, 281 AD2d 100, 105 [2001]; Matter of Grant v Grant, 265 AD2d 19, 23[2000]). Accordingly, upon consideration of the facts of this matter, we conclude that petitionershould not be barred from litigating the issue (see Jeffreys v Griffin, 1 NY3d at 42-43; Matter of NYCO Mins., Inc. v Town ofLewis, 42 AD3d 841, 842-843 [2007], lv denied 9 NY3d 814 [2007]).
Mercure, J.P., Carpinello, Rose and Kavanagh, JJ., concur. Ordered that the order isreversed, on the law and facts, without costs, and matter remitted to the Family Court of WarrenCounty for further proceedings not inconsistent with this Court's decision.