| Matter of Boccalino v Boccalino |
| 2009 NY Slip Op 01383 [59 AD3d 901] |
| February 26, 2009 |
| Appellate Division, Third Department |
| In the Matter of Paul P. Boccalino, Appellant, v Rossana C.Boccalino, Respondent. |
—[*1] Kristin L. Garland, Delaware County Department of Social Services, Delhi, forrespondent.
Peters, J. Appeal from an order of the Family Court of Delaware County (Becker, J.), enteredOctober 16, 2007, which dismissed petitioner's application, in a proceeding pursuant to FamilyCt Act article 4, for modification of a prior support order.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) were divorced inMarch 2000. Pursuant to a stipulation of settlement that was incorporated, but not merged, intothe judgment of divorce, they agreed to share joint legal custody of their daughter (born in 1989),with the mother having primary physical custody in Florida and the father receiving extensivevisitation in Florida, as well as limited visitation in New York. The agreement also provided thatthe father pay child support in the amount of $817 per month. In September 2006, upon thefather's objection to a cost of living adjustment to the support order, his child support obligationwas reduced to $772 a month. Thereafter, he commenced this proceeding seeking to terminatehis support obligation on the grounds that the child abandoned him and the mother unjustifiablydenied him access to and contact with the child. Following a hearing, Family Court dismissedthe petition. The father appeals and we affirm.
Generally, a parent has a statutory obligation to support his or her child until the childreaches the age of 21 (see Family Ct Act § 413 [1] [a]). However, child supportpayments may be suspended "where the noncustodial parent establishes that his or her right ofreasonable access to the child has been unjustifiably frustrated by the custodial parent"(Matter of Crouse v Crouse, [*2]53 AD3d 750, 751[2008]; see Labanowski vLabanowski, 49 AD3d 1051, 1054 [2008]; Matter of Smith v Bombard, 294AD2d 673, 675 [2002], lv denied 98 NY2d 609 [2002]). On the record before us, we findthat the father failed to sustain his burden of demonstrating that the mother interfered with hisefforts to maintain contact with his daughter or promoted the alienation of the father from thechild.
The evidence at the hearing established that there was very little contact between the fatherand his daughter from 2000 until 2006. The mother testified that she encouraged the child torespond to the father's letters and return his telephone calls, but was unsure if the child ever didso respond to the father. Despite the father's assertions to the contrary, the mother deniedencouraging the child to refer to him as "Paul" rather than "Dad," and the father's allegation thatthe mother attempted to change the child's last name on school and medical records is contrary tothe evidence. The credible evidence did establish that the mother traveled to New York in 2005without providing the father an opportunity for visitation. While the mother could have donemore to assure meaningful contact between the child and the father, the record as a whole doesnot support the conclusion that she "intentionally orchestrated and encouraged the estrangementof [the father] from the child[ ] or that she actively interfered with or deliberately frustrated hisvisitation rights" (Matter of Crouse v Crouse, 53 AD3d at 752 [internal quotation marksand citations omitted]; see Foster vDaigle, 25 AD3d 1002, 1004 [2006], lv dismissed 6 NY3d 890 [2006]).
Nor does the record support a finding that the child abandoned the father. While it is wellsettled that " 'a child of employable age, who actively abandons the noncustodial parent byrefusing all contact and visitation, without cause, may be deemed to have forfeited his or herright to support' " (Labanowski v Labanowski, 49 AD3d at 1053, quoting Matter ofChamberlin v Chamberlin, 240 AD2d 908, 909 [1997]), "where it is the parent who causes abreakdown in communication with his [or her] child, or has made no serious effort to contact thechild and exercise his [or her] visitation rights, the child will not be deemed to have abandonedthe parent" (Matter of Alice C. v Bernard G.C., 193 AD2d 97, 109 [1993]; see Matterof Ogborn v Hilts, 269 AD2d 679, 680 [2000]). By his own admission, at no point followingthe parties' divorce did the father exercise his right to visitation as provided for in the stipulationof settlement by either visiting his daughter in Florida or offering to transport her to New York(compare Matter of Chamberlin v Chamberlin, 240 AD2d at 910). Nor can the father'ssporadic telephone calls and the handful of letters he wrote to the child between 2000 and 2007be construed as serious attempts to establish contact with his daughter (see Radin vRadin, 209 AD2d 396, 396 [1994]; Matter of Wikoff v Whitney, 179 AD2d 924, 926[1992]). Moreover, he failed to initiate a court proceeding to enforce his visitation rights (see Matter of Juneau v Morzillo, 56AD3d 1082, 1086 [2008]; Matter of Crouse v Crouse, 53 AD3d at 752). Accordinggreat weight to Family Court's credibility assessments (see Matter of Kinney v Simonds,276 AD2d 882, 883-884 [2000]; Matter of Ogborn v Hilts, 269 AD2d at 680), we discernno basis to disturb its conclusion that the father's own conduct caused or contributed to thebreakdown in communication and visitation with his daughter.
The father's remaining contentions, including his argument that certain evidentiary rulingsmade by Family Court were improper, have been considered and found unavailing.
Cardona, P.J., Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.