Janousek v. Janousek

• Decision Date: 11 February 1985
• Parties: Madeline JANOUSEK, Respondent, v. Stanislav JANOUSEK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 305

485 N.Y.S.2d 305

108 A.D.2d 782

Madeline JANOUSEK, Respondent, v. Stanislav JANOUSEK, Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 11, 1985.

Taylor Walker, Garden City (Jody Pugach, Garden City, of counsel), for appellant.

Giaimo & Vreeburg, Forest Hills (Elisabeth A. Vreeburg, Forest Hills, of counsel), for respondent.

Before LAZER, J.P., and MANGANO, GIBBONS and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the defendant husband appeals from (1) an order of the Supreme Court, Queens County, dated May 11, 1984, which, after a hearing, denied his motion, inter alia, to modify a judgment of divorce to increase his visitation rights and, sua sponte, denied him any further contact with the child, and (2) a judgment of the same court dated May 14, 1984, which, after a hearing, granted the plaintiff wife's motion for an award of arrears for child support and counsel fees as provided in a prior judgment of divorce, a wage-deduction order to pay the arrears and future child support, and counsel fees.

Judgment affirmed, without costs or disbursements.

Order reversed, without costs or disbursements, and matter remitted to Special Term to a Judge other than the Judge who previously heard this matter for further proceedings in accordance herewith.

In September of 1983, plaintiff was granted a divorce against defendant. The judgment awarded plaintiff child support and counsel fees and made specific provisions for defendant's visitation with the parties' son, who was born in 1978. Shortly thereafter, plaintiff moved for a judgment for arrears due for child support and counsel fees, as well as a wage-deduction order and further counsel fees. In an affidavit in opposition, defendant admitted that he was in arrears, but claimed that he was unable to afford the child support payments and requested a downward modification. He did not contend that he refused to pay the support due to interference with his visitation rights. However, defendant later moved for an order directing plaintiff and her parents to stop interfering with his visitation and telephone contact with the child. He also requested a modification of the visitation provisions of the judgment of divorce, allowing him increased visitation rights.

On March 28, 1984, separate hearings were held for each matter. At the hearing concerning the arrears the court refused to allow defendant to testify about the issue of visitation. After all the testimony, it basically granted plaintiff the relief she requested.

Defendant appeals from the judgment granting the plaintiff's motion, stating that Special Term erred when it refused to allow him to testify concerning visitation. Defendant is correct in stating that visitation and support provisions are dependent (see Borax v. Borax, 4 N.Y.2d 113, 116, 172 N.Y.S.2d 805, 149 N.E.2d 326; Sipos v. Sipos, 73 A.D.2d 1055, 425 N.Y.S.2d 414). However, in the case at bar, it is clear that defendant's visitation rights were not entirely precluded (see Matter of Lee v. De Haven, 87 A.D.2d 576, 447 N.Y.S.2d 739). In addition, defendant made it clear that he was not withholding payment as a form of self-help to enforce visitation rights. He admitted that he was in arrears and claimed that the reason for his arrears was that he was unable to pay. Thus, Special Term was within its discretion when it limited defendant's testimony. Special Term's issuance of a wage-deduction order was also proper, since the evidence indicated that defendant was delinquent on at least three child support payments and had the ability to make the payments (Personal Property Law, § 49-b, subd. 1, par. Levinson v. Levinson, 97 A.D.2d 458, 467 N.Y.S.2d 427).

Defendant also objects to the award of counsel fees. Special Term requested that instead of testimony concerning counsel fees, it be supplied with an affirmation by plaintiff's attorney. While ordinarily testimonial or other trial evidence is required to support a claim for counsel fees, so that the relative financial positions of the parties and the value of the counsel's services can be examined (Entwistle v. Entwistle, 92 A.D.2d 879, 459 N.Y.S.2d 862), in the case at bar defendant failed to object to the procedure requested by the court, nor did he submit any opposition to the affirmation for counsel fees which was subsequently submitted. He therefore, waived his right to any further hearing concerning counsel fees and Special Term did not abuse its discretion by awarding counsel fees without hearing testimony (Lynch v. Lynch, 97 A.D.2d 814, 468 N.Y.S.2d 686). Accordingly, the judgment is affirmed.

Following the announcement of Special Term's findings at the arrears hearing, plaintiff's attorney informed the court that defendant had just cursed at plaintiff. The court then castigated defendant and threatened to charge him with contempt. It noted that defendant was a parole (sic ) officer and stated that he brought "dishonor" and "discredit" to the entire court system.

Immediately following this, the hearing on visitation commenced. Plaintiff testified that she was being continually harassed by defendant, that defendant made threats of violence against her and her parents, that defendant had assaulted her mother causing bruises on her mother's arm and that he had threatened to kidnap the child....