| Matter of Juneau v Morzillo |
| 2008 NY Slip Op 09316 [56 AD3d 1082] |
| November 26, 2008 |
| Appellate Division, Third Department |
| In the Matter of Alfred Juneau, Respondent, v Joanne Morzillo,Appellant. |
—[*1] William V. O'Leary, Albany, for respondent.
Kavanagh, J. Appeal from an order of the Family Court of Albany County (Walsh, J.),entered January 16, 2007, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 4, for modification of a prior child support order.
In 1993, the parties were divorced and petitioner (hereinafter the father) was granted custodyof their two daughters (born in 1986 and 1988). A child support order was issued and lateramended several times, which required respondent (hereinafter the mother) to pay the father childsupport. In December 2005, the father filed a petition to modify the support order to include aprovision directing the mother to contribute to the payment of their children's college expenses.The mother filed a motion seeking the recusal of the Support Magistrate from the proceedingbased upon the Support Magistrate's prior involvement with the parties.[FN1] The Support Magistrate denied the mother's motion and, after a hearing on the petition, issuedfindings of fact and an order requiring the mother to contribute to the payment of collegeexpenses for the children, as well as an award of counsel fees to the father. The mother filed[*2]objections to the Support Magistrate's determinations. FamilyCourt upheld the findings and denied the mother's objections. The mother now appeals.
In this appeal, the mother raises three issues. First, she argues that the Support Magistrateerred by refusing to allow her to call the parties' two children as witnesses at the hearing. Second,she argues that it was unjust and inappropriate to require her to pay any of the college expensesincurred on behalf of the children. Finally, the mother claims that the Support Magistrate wasbiased and should have recused herself from this proceeding. We disagree with the mother'sposition on each of these issues and affirm Family Court's order.
First, we find no error in the Support Magistrate's decision denying the mother's applicationto call her daughters as witnesses. In her offer of proof made in support of this request, themother claimed that the children's testimony was relevant to establish that (1) the father hadpurposely engaged in conduct designed to alienate the children from her, (2) the children hadvoluntarily chosen to abandon the mother and terminate any contact they might otherwise havehad with her, (3) the mother was not permitted to have any input or in any way participate in thechildren's college selection process, and (4) the children were emancipated or, alternatively, hadsufficient income at their disposal to contribute towards the payment of their college expenses.
Initially, we note that the mother has offered no testimony, including her own, in support ofher contention that the father deliberately interfered with her efforts to visit with the children orthat the children voluntarily decided to end any relationship they might otherwise have had withher. Absent some competent evidence to support either of these claims, and taking into accountthe potential impact on each child that would almost certainly result from their having to testifyat this proceeding, it cannot be said that the Support Magistrate abused her discretion in denyingthe mother's request that each child be compelled to testify (see Matter of Imman H., 49 AD3d 879, 880 [2008]).
As for the mother's claim that she was excluded from the college selection process, the fatherconcedes that she was not consulted, but explains that this was only after the mother had, for anextended period of time, shown no interest in either child and, when asked about these expenses,had stated that she would not contribute toward the expenses and was not to be contacted in thefuture about them. In short, there is no doubt but that the mother was not involved in this process,and the children's testimony on this issue would have added nothing that was not alreadyestablished in the record. As for the mother's suggestion that the children had access to incomethat could be used for the payment of these expenses, not only did the mother fail to present anyevidence to support this contention, but the father's testimony that he paid all of these expenses isessentially uncontroverted (see Matter of Imman H., 49 AD3d at 879).
Next, we address the mother's claim that she should not be required to contribute to thecollege expenses. While it is clear that the parties never entered into an express agreement toshare the payment of these expenses, such an expectation can be found to exist if, "having regardfor the circumstances of the case and of the respective parties and in the best interests of thechild, and as justice requires, [a college] education for the child is appropriate" (Family Ct Act§ 413 [1] [c] [7]; accord Matter ofNaylor v Galster, 48 AD3d 951, 952 [2008]). The factors to be considered include "thechild[ren's] academic ability, the parents' educational background and the ability to pay"(id. at 953; Brough v Brough, 285 AD2d 913, 917 [2001]; Matter of Haesslyv Haessly, 203 AD2d 700, 701-702 [1994]). Here, early in the marriage, the partiesestablished a [*3]college fund for each child and, at that time, itwas the family's expectation that the children would attend college. However, the mother claimsthat circumstances have changed, and she does not now have at her disposal the financialresources to make such a contribution and, further, that given the strained relationship she haswith each child, no such obligation should be found to exist.
As for the mother's ability to pay, the Support Magistrate appropriately considered thedisparity in the parties' income, and allocated the lion's share of the total cost of this expense tothe father. The mother's total obligation for the payment of these expenses was capped at$5,000—far less than the $23,000 yearly tuition that is presently being incurred by thefather for the eldest child. Moreover, given the mother's failure to present any competentevidence that she is financially unable to contribute to the payment of these expenses, such anaward is both appropriate and just (see Matter of Naylor v Galster, 48 AD3d at952).[FN2]
The mother contends that even if it is found that such an obligation does indeed exist, it hasbeen negated by the father's ongoing efforts to alienate the children from her, as well as by thechildren's adamant refusal to have anything to do with her (see id.). We recognize that aparent may seek a suspension of an obligation to support a child "where 'the custodial parent hasunjustifiably frustrated the noncustodial parent's right of reasonable access' " (Labanowski v Labanowski, 49 AD3d1051, 1054 [2008], quoting Matter of Smith v Bombard, 294 AD2d 673, 675 [2002],lv denied 98 NY2d 609 [2002]; see Matter of Wiegert v Wiegert, 267 AD2d 620,621 [1999]). In addition, " 'a child of employable age, who actively abandons the noncustodialparent by refusing all contact and visitation, without cause, may be deemed to have forfeited hisor her right to support' " (Labanowski vLabanowski, 4 AD3d 690, 695 [2004], quoting Matter of Chamberlin vChamberlin, 240 AD2d 908, 909 [1997]). However, to prevail on this issue, the mother mustestablish that her children's refusal to have any contact with her is totally unjustified (seeLabanowski v Labanowski, 49 AD3d at 1054).
Here, the evidence did not establish that the father interfered with the mother's efforts tomaintain contact with the children or that the children abandoned her. In July 1999, after thefather was awarded custody of the children, the mother's visitation was suspended only after shefiled an application to "rescind" any right or obligation to visit with the children. This suspensionorder was issued without prejudice yet, in the six years that have passed since its entry, themother has made no attempt, legal or otherwise, to visit with the children and, until recently, hashad little contact with them. Under the circumstances, the mother's own conduct hasplayed a significant, if not determinative, role in the alienation of her children's affections andcannot now be used to negate a parental obligation that otherwise exists, requiring her to [*4]assist in the payment of their college education.
Finally, the mother failed to file a specific objection to the Support Magistrate's refusal torecuse herself from presiding over this proceeding and, therefore, this issue was not properlypreserved (see Family Ct Act § 439 [e]; Matter of Renee XX. v John ZZ., 51 AD3d 1090, 1092 [2008]; Matter of Constance NN., 47 AD3d986, 986 [2008]).
Mercure, J.P., Peters, Lahtinen and Malone Jr., JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: The Support Magistrate hadworked as the law clerk for a Family Court judge who had presided over prior proceedingsinvolving the parties.
Footnote 2: While she has her own income,the mother has provided little insight into her own financial circumstances, alleging that hercurrent husband has full control over their finances and that she is not involved in them. In heroriginal net worth statement, the mother declared that she has no monthly expenses, yet thenrevised that statement, without any explanation, to claim that she has $2,000 in monthlyexpenses. Moreover, the mother characterized her ongoing payment of child support as having"already prepaid" their college expenses and claimed that the father owed her a "big time creditback."