Lee v. De Haven
| Decision Date | 01 March 1982 |
| Citation | 447 N.Y.S.2d 739,87 A.D.2d 576 |
| Parties | In the Matter of Madelyn LEE, Respondent, v. Harry DE HAVEN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Elihu Hendon, Freeport, for appellant.
Ross, Genser, Stone & Levine, Garden City (Arthur Levine, Garden City, of counsel), for respondent.
Edward G. McCabe, County Atty., Mineola (Kathryn Driscoll Hopkins, Deputy County Atty., Mineola, of counsel), for County of Nassau.
Before DAMIANI, J. P., and TITONE, MANGANO and WEINSTEIN, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to the Uniform Support of Dependents Law, (Domestic Relations Law, art. 3-A), the father appeals from an order of the Family Court, Nassau County, entered September 25, 1980, which, after a hearing, (1) reduced his liability for support of the parties' two children from $110 per week to $90 per week, (2) directed him to pay $3,300 in arrears for support of the children, at the rate of $30 per week, and (3) modified his visitation rights under the prior judgment of divorce.
Order modified, on the law, by striking the provision fixing visitation. As so modified, order affirmed, without costs or disbursements, and the visitation provisions of the judgment of divorce are reinstated.
The appellant, without authorization from a court, ceased making support payments when petitioner remarried and relocated, with the children, in Georgia. Petitioner then brought this proceeding to enforce the support provisions of the divorce decree. While a noncustodial parent's support obligation may be suspended when the custodial parent removes the children to a distant location without justification (see Abraham v. Abraham, 44 A.D.2d 675, 353 N.Y.S.2d 794; Callender v. Callender, 37 A.D.2d 360, 325 N.Y.S.2d 420), such a suspension is not automatic, and depends upon the circumstances of the particular case (see Matter of Giacopelli v. Giacopelli, 62 A.D.2d 999, 403 N.Y.S.2d 303; Matter of Sawyer v. Larkin, 37 A.D.2d 929, 326 N.Y.S.2d 270). We find that in this case, petitioner's relocation, which was a consequence of her remarriage, and which was not prohibited by the divorce decree, was justifiable. This relocation, while rendering visitation more expensive for appellant, did not entirely preclude the exercise of his visitation rights. Appellant was not authorized to cease making support payments without a court order (see Murza v. Murza, 85 A.D.2d 687, 445 N.Y.S.2d 495 ). We note that the Family Court took...
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