Matter of Travell, Jr. v. Travell

• Decision Date: 26 October 2006
• Docket Number: 98748
• Parties: In the Matter of ALBERT C. TRAVELL, JR., Appellant, v. SANYA TRAVELL, Respondent. (Proceeding No. 1.) In the Matter of ALBERT C. TRAVELL JR., Appellant, v. HEATHER FANCHER, Respondent. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

33 A.D.3d 1169

823 N.Y.S.2d 273

2006 NY Slip Op 7665

In the Matter of ALBERT C. TRAVELL, JR., Appellant, v. SANYA TRAVELL, Respondent. (Proceeding No. 1.)

In the Matter of ALBERT C. TRAVELL JR., Appellant, v. HEATHER FANCHER, Respondent. (Proceeding No. 2.)

98748

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

Decided October 26, 2006.

Appeal from an order of the Family Court of Schoharie County (Bartlett, III, J.), entered May 26, 2005, which, inter alia, dismissed petitioner's applications, in two proceedings pursuant to Family Ct Act article 4, for relief from support payments and commitment.

Lahtinen, J.

Petitioner was found to be in willful violation of Family Court orders directing him to pay $60 a month for child support to respondent Sanya Travell and $85 every two weeks for child support to respondent Heather Fancher and was sentenced to jail terms of 30 days and 15 days for the respective violations. Each sentence was suspended on the condition that petitioner make his future court-ordered payments. Petitioner did not make any payments but was granted additional time to commence payments in anticipation of a favorable decision on his pending workers' compensation and Social Security disability claims. On November 12, 2004, when it appeared that neither claim would produce imminent payment of benefits, petitioner filed for relief from the orders of support and commitment. Affidavits for orders of commitment were then filed by the Support Collection Unit. A hearing on the four applications resulted in Family Court denying both of petitioner's requests for relief and granting the Support Collection Unit's applications, but staying enforcement for an additional period of 60 days upon the condition that petitioner timely comply with each order. Petitioner appeals.

In order to be entitled to relief, petitioner is required to show by competent proof that he is financially unable to comply with the orders of support issued by Family Court (see Family Ct Act § 455 [2]). Petitioner claims that his medical disabilities, resulting from an on-the-job injury to his neck in 2002, prevent him from working. Petitioner was apparently able to continue working for six months until numbness, tingling and sharp pain in his arm and neck caused him to see Bruce Russell, a family practice physician, in March 2003. Russell testified at the hearing that he diagnosed petitioner with cervical radiculopathy. After an MRI confirmed a narrowing of the canal where the spinal cord goes through the neck, Russell referred petitioner to a neurosurgeon who recommended surgery. Surgery was eventually performed in March 2004. Petitioner then claims that he...