| Matter of Tafuro v Tafuro |
| 2013 NY Slip Op 00343 [102 AD3d 877] |
| January 23, 2013 |
| Appellate Division, Second Department |
| In the Matter of Gerald A. Tafuro,Appellant, v Laurie Beth Tafuro, Respondent. |
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In a child support proceeding pursuant to Family Court Act article 4, the fatherappeals from an order of the Family Court, Orange County (Klein, J.), dated September15, 2011, which denied his objections to so much of an order of the same court (Braxton,S.M.) dated July 7, 2011, as, after a hearing, fixed his child support arrears in the sum of$15,314 for the parties' three children.
Ordered that the order dated September 15, 2011, is modified, on the law, by deletingthe provision thereof denying the father's objection to so much of the order dated July 7,2011, as awarded child support arrears for the parties' child H., and substituting therefora provision granting that objection to the extent of vacating so much of the order datedJuly 7, 2011, as awarded child support arrears for the parties' child H. from September28, 2008; as so modified, the order dated September 15, 2011, is affirmed, without costsor disbursements, and the matter is remitted to the Family Court, Orange County, for arecalculation of the amount of the father's child support arrears.
The parties were divorced in 2004 and the mother was awarded residential custodyof their three children. The father was directed to pay biweekly child support to themother in the sum of $522. In September 2008, the parties' child H. began living with thefather. The parties' two other children, at various times from 2008 until the date of thepetition, also lived with the father. In November 2010, the father petitioned for atermination of the child support order on the ground that the children, in fact, residedwith him. The parties thereafter agreed that the child support payments from the father tothe mother should cease on the ground that the father had residential custody of thechildren. Accordingly, the Family Court terminated the child support order.
The mother subsequently filed a petition to recover child support arrears in the sumof $15,314. After a hearing, the Support Magistrate granted the petition and fixed thefather's child support arrears in the sum of $15,314 for the parties' three children. Thefather objected on the ground that the mother had waived prospective child supportpayments after the children began living with him. The Supreme Court denied thefather's objections.
"Child support payments may be waived prospectively, before the obligation to makesuch payments has accrued" (Stevens v Stevens, 82 AD3d 873, 874 [2011]; see Matter of Savini vBurgaleta, 69 AD3d 734, 735 [2010]; Matter of O'Connor v Curcio, 281AD2d 100, 105 [2001]). "[A] mere change in [*2]custodyis insufficient to constitute a waiver of child support" (Matter of O'Connor vCurcio, 281 AD2d at 105). Rather, "[t]he party claiming a waiver must comeforward with evidence of a voluntary and intentional relinquishment of a known andotherwise enforceable right to child support" (Stevens v Stevens, 82 AD3d at874; see Matter of Barrio vMontanez, 71 AD3d 1140, 1140 [2010]; Matter of O'Connor v Curcio,281 AD2d at 105).
Here, the record demonstrated, and the mother did not dispute, that H. lived with thefather beginning in September 2008. The father presented a letter dated September 28,2008, which was signed by the mother, in which the parties agreed that the mother wouldnot seek child support for H. and that the father, in turn, would not seek child supportfrom the mother. Contrary to the Support Magistrate's contention, the mother's expresswaiver of her future child support payments for H. was valid and enforceable (seeStevens v Stevens, 82 AD3d at 874; Matter of Savini v Burgaleta, 69 AD3dat 735; Matter of O'Connor v Curcio, 281 AD2d 100, 105 [2001]). However, theevidence adduced at the hearing does not warrant the conclusion that the mother waivedher future child support payments as to the parties' other two children (see Matter ofRzemieniewska-Bugnacki v Bugnacki, 51 AD3d 1029, 1029 [2008]).
In light of the foregoing, the father's objection to so much of the Support Magistrate'sorder as awarded child support arrears for H. should have been granted to the extent ofvacating so much of that order as awarded child support arrears for H. from September28, 2008. Accordingly, the matter must be remitted to the Family Court, Orange County,for a recalculation of the amount of the father's child support arrears. Angiolillo, J.P.,Dickerson, Miller and Hinds-Radix, JJ., concur.