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Home / Expert Opinion / Matrimonial Matters: Recent AD, Fourth Department decisions

Matrimonial Matters: Recent AD, Fourth Department decisions

Sara Stout Ashcraft

Sara Stout Ashcraft

The following case synopses cover decisions released by the Fourth Department Appellate Division in September and October.

Child custody

White v. Wilcox (CAF 12-01205, Sept. 27): This is a case in which the petitioner and the Attorney for the Child appealed the dismissal of the paternity petition by the Family Court. The appellants contended that the doctrine of equitable estoppel should have been applied to keep the mother from denying the paternity of the petitioner regarding the child.

The Fourth Department affirmed the dismissal, stating, “It is well settled ‘that parentage’ under New York law derives from biology or adoption.” The court further quoted the Court of Appeals, saying, “any change in the meaning of ‘parent’ under our law should come by way of legislative enactment rather than judicial revamping of precedent.”

Button v. Allen (CAF 12-00627, Sept. 27): Petitioner-mother appealed an order which awarded the parents joint legal custody of the children, awarded primary residency of the daughter to the mother, and awarded primary residency of the sons to the father. The mother contended that splitting the physical residency was not in the children’s best interests.

The Appellate Court affirmed the Family Court’s placement decision, stating, “We will not disturb the custody determination here inasmuch as the court made extensive factual findings that are supported by the record,” and “the needs of each of the children will best be met by the court’s disposition.”

Child support

Johnson v. Johnson (CA 12-0751, Sept. 27): Among other issues, the defendant appealed the Supreme Court’s determination that his failure to pay child support was willful. The defendant (apparently an Idaho resident) admitted at the hearing that he had not paid child support pursuant to the judgment of divorce, but claimed that an Idaho statute which required child support be paid directly to the Idaho Department of Health and welfare justified his failure to pay child support to the plaintiff.

The Fourth Department held that because the judgment of divorce was issued in New York and the Uniform Interstate Family Support Act provides that, “the law of the issuing state governs the natures, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order,” New York law applied.

Roshia v. Thiel (CAF 12-01061, Oct. 4): Among other appeals, the respondent appealed a Family Court order denying his objections to the Support Magistrate’s order denying the respondent’s motions to vacate the support order entered upon the respondent’s default.

The Appellate Court stated, “although default orders are disfavored in cases involving the… support of children … that policy does not relive the defaulting party of the burden of establishing a reasonable excuse for the default.” The court did not find the respondent’s excuse for the default reasonable, since although the respondent claimed that the parties had agreed that neither parent would owe the other child support, the father had “consistently paid child support for the subject child … for two years after the [underlying support] order was entered.”

The Fourth Department also stated that the respondent had not demonstrated a meritorious defense to the default. The respondent’s claimed defense included a rather unique allegation that the underlying support order was invalid because it did not comply with the statutory requirement in Family Court Act §413(1)(h) that there must be provision in a stipulation or agreement setting forth the presumptively correct amount of child support.” The court found the argument without merit as there was no stipulation or agreement between the parties and the child support order was entered on default.

The Fourth Department’s 2013 calendar has been occupied with a number of family law issues and future columns will delve further into these cases.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

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