Holm-Beer v. Holm

• Court: New York Supreme Court — Appellate Division
• Citation: Holm-Beer v. Holm, 588 N.Y.S.2d 501, 186 A.D.2d 1084 (N.Y. App. Div. 1992)
• Decision Date: 07 October 1992
• Docket Number: A,HOLM-BEE
• Parties: Matter of Ursulappellant, v. Gilbert HOLM, Respondent.

Page 501

588 N.Y.S.2d 501

186 A.D.2d 1084

Matter of Ursula HOLM-BEER, Appellant, v. Gilbert HOLM, Respondent.

Supreme Court, Appellate Division Fourth Department.

Oct. 7, 1992.

Clifford Forstadt, East Syracuse, for appellant.

Maureen K. Walsh by Gilbert Holm, Syracuse, for respondent.

Before DENMAN, P.J., and PINE, LAWTON, BOEHM and DOERR, JJ.

MEMORANDUM:

Family Court erred by entering an order, pursuant to CPLR 9002, on behalf of retired Family Court Judge Barth, suspending the original respondent's child support obligation as of February 6, 1980. There is no evidence in the record that Judge Barth ever rendered a decision determining the issue raised in the 1980 petition. In fact, the record is insufficient to support a conclusion that the matter was ever assigned to Judge Barth. In our view, a letter from a collection officer in the Child Support Collection Unit to the original petitioner, dated November 19, 1980, indicating that "current care was suspended" as of February 6, 1980, without more, does not provide sufficient proof that Judge Barth decided the matter so as to entitle a present Family Court Judge to "give effect" to that decision (CPLR 9002; cf., Metropolitan Life Ins. Co. v. Union Trust Co., 294 N.Y. 254, 62 N.E.2d 59; Schammel v. Schammel, 161 A.D.2d 407, 555 N.Y.S.2d 336; Lindt v. Guggenheim Foundation, 24 A.D.2d 944, 265 N.Y.S.2d 144, revd. on other grounds 25 N.Y.2d 357, 306 N.Y.S.2d 436, 254 N.E.2d 746; Rosenshein v. Guillen, 92 Misc.2d 217, 400 N.Y.S.2d 33).

Family Court further erred by entering an order determining respondent's 1980 petition because the opposing affidavit of petitioner raises a sufficient issue concerning whether she ever received notice of the petition to preclude summary determination. Consequently, the order is reversed and the matter remitted to Onondaga County Family...