| Matter of Barney v Van Auken |
| 2012 NY Slip Op 05592 [97 AD3d 959] |
| July 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Susan R. Barney, Respondent, v Dennis G. VanAuken, Appellant. |
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Lahtinen, J. Appeals (1) from an order of the Family Court of Cortland County (Ames, J.),entered June 10, 2011, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 4, to direct respondent to pay child support, and (2) from an order of said court,entered June 10, 2011, which denied respondent's motion for an award of counsel fees.
The parties' daughter (born in 1990) moved from respondent's residence to petitioner's homewhen she turned 18 in November 2008, and in May 2009 petitioner commenced this proceedingseeking child support. Respondent's defenses included visitation as a defense, alleged asabandonment. Since the Support Magistrate improperly ruled upon such issue without referring itto Family Court, we reversed and remitted (81 AD3d 1129 [2011]). Upon remittal, and after ahearing in May 2011 at which the parties appeared pro se, Family Court found that respondentfailed to sustain his burden of proving the affirmative defenses. The court directed him to, amongother things, pay $170 biweekly in child support for the period from May 2009 when the petitionwas filed until April 2010 when the child became emancipated. Respondent appeals from thatorder, as well as from Family Court's order denying his motion for an award of counsel feesincurred up to the time of the earlier appeal.
Respondent initially contends that the Family Court Judge should have recused himself."Absent a legal disqualification under Judiciary Law § 14, which is not at issue here, a trialjudge is the sole arbiter of recusal and his or her decision, which lies within the personalconscience of the court, will not be disturbed absent an abuse of discretion" (Kampfer v Rase, 56 AD3d 926,926 [2008], lv denied 11 NY3d 716 [2009] [internal quotation marks and citationsomitted]; see Matter of Kelley vVanDee, 61 AD3d 1281, 1284 [2009]). Although the Family Court Judge [*2]indicated at a pretrial conference that he might refer the matter toanother judge since he had read the transcript from the August 2009 fact-finding hearing andaffirmed the Support Magistrate's findings, he also stated that his decision could be differentfollowing this hearing as a result of seeing and hearing the witnesses. The potential reason forrecusal was weighed by the Judge and he determined that he could consider the case fairly. Weare unpersuaded that his determination constituted an abuse of discretion.
Next, respondent argues that testimony regarding events occurring after the earlier hearing inAugust 2009 should not have been permitted at the May 2011 hearing. He further asserts that thefinancial information from that earlier hearing should have been updated. Although both pro selitigants offered some evidence of events occurring after the petition was filed and no motion wasmade to conform the pleadings to the proof (see Matter of Martin v Mills, 94 AD3d 1364, 1365 n [2012]),Family Court's determination ultimately was not premised upon such evidence. Further, theparties' financial information from 2009 was properly considered for the child support obligation,which ran from May 2009 to April 2010 and, in any event, it does not appear that the partiesoffered any updated financial information at the May 2011 hearing.
Family Court's finding that respondent failed to satisfy his burden with regard to theaffirmative defenses of abandonment and alienation was based in part upon its assessment ofcredibility. Although respondent urges that petitioner was not a credible witness, we generally"[a]ccord[ ] great weight to Family Court's credibility assessments" (Matter of Boccalino v Boccalino, 59AD3d 901, 903 [2009]). We discern no reason to reject Family Court's assessment ofcredibility here. Accepting those assessments, the record supports Family Court's determinationthat respondent's affirmative defenses were not sufficiently proven.
Family Court was well within its discretion in not awarding counsel fees to respondent, whohad considerably higher earnings than petitioner (see e.g. Halse v Halse, 93 AD3d 1003, 1006 [2012]).
Peters, P.J., Spain, Malone Jr. and Garry, JJ., concur. Ordered that the orders are affirmed,without costs.