| Matter of Dempsey v Arreglado |
| 2012 NY Slip Op 03488 [95 AD3d 1388] |
| May 3, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Michael Andrew Dempsey, Respondent,v Tatiana Marie Arreglado, Appellant. (And Another RelatedProceeding.) |
—[*1] Brett H. Kimmel, New York City, for respondent. Ted J. Stein, Woodstock, attorney for the child.
Lahtinen, J. Appeals (1) from an order of the Family Court of Ulster County (Mizel, J.),entered October 12, 2010, which, in two proceedings pursuant to Family Ct Act article 4, amongother things, granted petitioner's motion to dismiss respondent's affirmative defenses, and (2)from an order of said court, entered June 9, 2011, which, among other things, granted petitioner'smotion for an award of counsel fees.
The parties are the parents of one child (born in 1993) and, following several years of bitterlitigation, their marriage ended in a 2004 divorce judgment that provided for joint legal custodyas well as shared parenting time. Less than a year after their divorce, the attorney for the childmade an emergency application seeking to place physical custody with petitioner (hereinafter thefather) and to limit visitation by respondent (hereinafter the mother) because of apparent severeemotional stress suffered by the child when residing with the mother and her boyfriend. SupremeCourt (Silbermann, J.) granted temporary sole custody to the father and, [*2]recognizing the "fractured relationship" between the child and themother, directed the parents to see a counselor. In 2006, Supreme Court, among other things,continued sole custody of the child with the father and indicated that the mother shouldcommence therapy aimed at restoring the parent/child relationship. Since that time, the partieshave been involved in continuous litigation, and the child, who is now in college, has refusedcontact with the mother.
The father commenced the current proceedings in 2009 seeking an order of support and alsocontribution towards the child's therapy costs under a provision in the parties' divorce judgmentregarding payment of 50% of the child's "add-on" expenses. Affirmative defenses by the motherincluded a contention that the child had been alienated from her by the father. In light of theallegation of interference with visitation, the Support Magistrate referred the matters to FamilyCourt. Family Court rendered a detailed written decision on the father's motion to dismiss theaffirmative defenses setting forth some of the lengthy litigation history and identifying factualissues regarding, among other things, whether the father had interfered with visitation andwhether the child had constructively emancipated himself from the mother. After a hearing,Family Court found in October 2010 that the mother's affirmative defenses lacked merit, grantedthe father's motion to dismiss those defenses, and referred the matter back to the SupportMagistrate. Thereafter, the father moved for counsel fees and the mother cross-moved forcounsel fees. In June 2011, Family Court granted the father's motion, awarding $24,306.89 incounsel fees, and denied the mother's cross motion. The mother appeals from the October 2010and June 2011 orders.
A parent has a statutory duty to support a child until the child reaches the age of 21(see Family Ct Act § 413 [1] [a]). Child support payments may be suspendedwhere the custodial parent unjustifiably frustrates the noncustodial parent's right of reasonableaccess (see Labanowski vLabanowski, 49 AD3d 1051, 1054 [2008]; Matter of Smith v Bombard, 294AD2d 673, 675 [2002], lv denied 98 NY2d 609 [2002]). Further, a child's right to supportmay be forfeited if the child is of employable age and the child actively abandons thenoncustodial parent by, without cause, refusing contact (see Matter of Naylor v Galster, 48 AD3d 951, 952 [2008]; Matter of Chestara v Chestara, 47AD3d 1046, 1047 [2008]). To prevail on the issue of abandonment, a parent must show thatthe child's refusal of contact "is totally unjustified" (Matter of Juneau v Morzillo, 56 AD3d 1082, 1086 [2008]; seeLabanowski v Labanowski, 49 AD3d at 1053-1054). When conflicting proof is presented,we accord deference to the credibility determinations of the trier of fact (see Matter ofColumbia County Dept. of Social Servs. v Richard O., 262 AD2d 913, 916 [1999]).
There is ample evidence in the record that the mother's own conduct was the cause of thebroken relationship with her son. Moreover, despite the fact that she was informed shortly afterthe change in custody to the father that her actions were severely traumatizing the child and thatproper counseling would be important to resuming visitation, she did not follow through withsuch counseling. Instead, she continued to blame others and failed to appreciate her own role inalienating her child. The mother did not sustain her burden of showing a lack of justification forthe child's refusal to maintain contact with her. Further, although the father was not a modelcooperative parent, the record supports Family Court's finding that he did not unjustifiablyinterfere with the mother's rights regarding the child nor was he the cause of the fracturedrelationship.
Family Court did not commit reversible error by limiting the proof to events occurring afterDecember 1, 2008 and in denying the mother's request to compel the child to testify. Given [*3]the long litigation history and numerous prior court orders, it waswell within Family Court's discretion to place relevant parameters on the time frame of proofpermitted (see Matter of Cool vMalone, 66 AD3d 1171, 1173 [2009]). Moreover, Family Court did not abuse itsdiscretion in refusing to make the child testify in light of the mother's lack of proof regarding herclaim of alienation and, as explained by the attorney for the child in objecting to this testimony,the potential for significant negative impact on the child of requiring him to testify (seeMatter of Juneau v Morzillo, 56 AD3d at 1084).
The mother's challenge to the award of counsel fees to the father has merit. The father'smotion was made pursuant to Family Ct Act § 438 (a). While Family Court is accordeddiscretion and many factors can be weighed in an application for counsel fees pursuant to FamilyCt Act § 438 (a), a primary consideration is each party's financial circumstance (see Matter of Nieves-Ford v Gordon,47 AD3d 936, 937 [2008]; Matterof Yarinsky v Yarinsky, 36 AD3d 1135, 1140-1141 [2007]; Moffre v Moffre, 29 AD3d 1149,1152 [2006]; see also O'Shea v O'Shea, 93 NY2d 187, 193-194 [1999]). Here, althoughhe had significant debts, the father—a medical doctor—had annual incomeexceeding $270,000. The mother earned income in excess of $110,000 a year as a nurse. It isapparent that these individuals had ample income to pay their own attorneys and, in fact, thefather had already paid his attorney. Family Court discussed (but did not directly decide) counselfees as a potential sanction under 22 NYCRR 130-1.1, where a party's financial circumstance isnot necessarily an important factor. However, the father's motion was premised upon Family CtAct § 438 (a) and did not expressly request sanctions under 22 NYCRR 130-1.1; thus,ample notice was not accorded regarding a potential sanction under the regulation (see 22NYCRR 130-1.1 [d]; cf. Matter ofLawrence, 79 AD3d 417, 417 [2010]; De Ruzzio v De Ruzzio, 287 AD2d 896,897 [2001]).
Peters, P.J., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order enteredOctober 12, 2010 is affirmed, without costs. Ordered that the order entered June 9, 2011 ismodified, on the law, without costs, by reversing so much thereof as granted petitioner's motionfor counsel fees; said motion denied; and, as so modified, affirmed.