Matter of Martin, Jr. v. Martin

• Decision Date: 27 December 2007
• Docket Number: 500659.,501840.
• Citation: 46 A.D.3d 1243,2007 NY Slip Op 10422,848 N.Y.S.2d 433
• Parties: In the Matter of JOHN H. MARTIN, JR., Appellant, v. CAROL A. MARTIN, Respondent. (And Two Other Related Proceedings.)
• Court: New York Supreme Court — Appellate Division

46 A.D.3d 1243

848 N.Y.S.2d 433

2007 NY Slip Op 10422

In the Matter of JOHN H. MARTIN, JR., Appellant, v. CAROL A. MARTIN, Respondent. (And Two Other Related Proceedings.)

500659.

501840.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided December 27, 2007.

Appeals (1) from an order of the Family Court of Schenectady County (Powers, J.), entered December 29, 2005, which, among other things, dismissed petitioner's applications, in three proceedings pursuant to Family Ct Act article 4, for modification of a prior order of support, and (2) from an order of said court, entered October 26, 2006, which granted respondent's application for counsel fees.

Spain, J.

The parties are the parents of two children (born in 1990 and 1995). In 2002, petitioner (hereinafter the father) and respondent (hereinafter the mother) were divorced and stipulated to a joint custody arrangement, whereby the father would, among other things, pay child support in the sum of $200 per week. In 2004, the parties each filed petitions on the same day in Family Court, the mother seeking a finding that the father had willfully violated the order of support and the father seeking a modification of his support obligation. In his petition, the father listed verbal agreements and health as the change in circumstances justifying modification. In June 2005, while the trial was in progress, the father filed a second petition seeking modification of child support based on his incarceration in the Albany County Jail.

A three-day trial—ultimately covering all three petitions— was held before a Support Magistrate on January 11, 2005, February 4, 2005 and June 28, 2005. On the first day of trial, the father's attorney attempted to introduce medical records but, after the mother objected, the Support Magistrate refused to receive the records "at this time," apparently in the absence of proper authentication. The father testified that in the spring and summer of 2003 his business collapsed, he was diagnosed with an illness which crippled his ability to work until approximately January 2005 and, between September 2003 and May 2004, he lived with the mother and their children under an agreement that he would perform the duties of a "stay-at-home parent" in lieu of support payments.

On the second day of trial a month later, the father attempted to introduce the testimony of his therapist who was apparently prepared to testify that during an addiction counseling session the parties had "agreed to have [the father] provide services instead of providing child support dollars." However, the mother objected to such testimony on the ground that it was privileged. The Support Magistrate adjourned the trial for research on the issue of whether the mother was entitled to assert a therapist/social worker-client privilege. Thereafter, by written decision, the Support Magistrate determined that the mother was involved in the counseling only for the purpose of assisting with the father's therapy and, therefore, the therapist would be permitted to testify as a fact witness regarding the alleged agreement. On the date of that decision—May 5, 2005—the Support Magistrate set the next date for the continuation of the trial for June 28, 2005.

On June 28, 2005, almost eight weeks after her decision, the Support Magistrate was prepared to accept the therapist's testimony. The father's attorney, however, reported to the court that the therapist was not available and requested that another date be set for the therapist's testimony or, in the alternative, that the mother consent to the receipt in evidence of the therapist's affidavit, which had been submitted previously in support of the father's earlier assertion that the therapist should be allowed to testify. The mother objected to both of these options, and the Support Magistrate agreed.

The father's testimony resumed and it was revealed that he had recently been incarcerated on pending criminal charges. He also restated or elaborated on much of his earlier testimony regarding his health problems, work history, and the alleged agreement with the mother to temporarily suspend payments in return for his childcare assistance. The mother testified that the father had indeed resided with her and the children at times and that she had attended therapy sessions with him, but she asserted that they had not entered into any agreement to suspend child support.

After again denying the father's requests for an opportunity to call the therapist or introduce the therapist's affidavit, the Support Magistrate ruled from the bench dismissing both modification petitions based on the father's failure to establish a change in circumstances and finding that he had willfully violated a support order. In her ruling, the Support Magistrate noted, among other things, that no medical evidence of the father's alleged inability to work due to diminished health was introduced, incarceration is not a basis to modify an order of support,^* and no credible evidence supported his claims regarding the alleged arrangement between the parties. She ultimately issued an order crediting various payments to the father, but finding that he willfully violated an order of support.

Family Court subsequently affirmed the findings of the Support Magistrate and directed that, given...