New York Family Law Blog
A New York Family Lawyer said that, in a matrimonial action in which the parties were divorced by a judgment dated April 12, 1985, the defendant former husband appeals from a judgment of the Supreme Court, Nassau County, dated April 16, 1991, which, after a hearing, inter alia, found him in contempt of court and granted the plaintiff former wife a judgment for child support arrears in the amount of $17,040.
A New York Child Custody Lawyer said that, the parties were divorced in April 1985 in Nassau County and, pursuant to the terms of the divorce judgment, the former wife was granted sole custody of the parties’ two children, and the former husband was required to pay child support of $60 a week. In 1990, the former wife brought a motion to hold the former husband in contempt based on his failure to pay child support for approximately five years. At a hearing on the contempt motion, the former husband did not dispute that the arrears amounted to $17,040. He argued, however, that the court should consider his application, allegedly pending since 1985, for the elimination of his child support obligation. A Nassau Order of Protection Lawyer said that, in his 1985 motion, the former husband sought, inter alia, transfer of custody of the children and the elimination of his child support obligation based on his allegation that the former wife’s relocation to Dutchess County interfered with his visitation rights. Following a hearing on the motion in 1987, the court determined that the former wife’s relocation did not interfere with his visitation rights and that a transfer of custody was not in the best interest of the children. Because the court did not specifically address the issue of child support in its 1987 decision and order, the former husband now contends that his application to eliminate child support remained pending at the time of the contempt hearing.
A Suffolk County Family Lawyer said the issue in this case is whether the court erred in citing defendant in contempt of court and granted the plaintiff former wife a judgment for child support arrears in the amount of $17,040.
A Suffolk County Child Custody Lawyer said that the court finds that the court did not err in precluding the former husband from raising that issue in the contempt proceeding. The court finds no merit to this contention and concludes that the former husband’s application was denied sub silentio in the 1987 order. Pursuant to Domestic Relations Law § 241, as amended effective August 5, 1986, interference with visitation rights is not a ground for the cancellation of child support arrears, although such interference may provide a basis for the prospective suspension of child support. Here, in view of the court’s determination that the former wife had not interfered with the former husband’s visitation rights, his application to suspend his child support obligation on that ground was necessarily denied. The former husband thereafter sought to expand his visitation rights, but he did not specifically request the elimination or modification of his child support obligation in his motion papers. Consequently, since the former husband did not obtain an order suspending his child support obligation prior to the contempt hearing, the court properly granted the former wife a judgment for the arrears. We further find that the record supports the court’s determination that the former husband’s failure to pay child support was willful.
The court correctly determined that there should be no change of custody of the parties’ two children. Although it was improper for the mother to adhere to the children’s expressed wishes to forego visitation with their father, the father has also contributed to the problems surrounding visitation. Therefore, the court properly refused to transfer custody to him, or increase his visitation. Nor was it improper for the court to deny the husband’s request to suspend or reduce his child support payments. The mother’s position with regard to visitation did not rise to the level of active interference with or deliberate frustration of the husband’s visitation rights.
Accordingly, the court held that the judgment is affirmed, with costs. We have examined the husband’s remaining contentions and find that they lack merit.
If you are in similar situation in the case at bar, seek the help of a Nassau Visitation Attorney and Nassau Child Support Attorney at Stephen Bilkis and Associates. Call us for free legal advice.