Matter of Walsh v. Karamitis

• Decision Date: 28 February 2002
• Docket Number: 3,89528
• Parties: In the Matter of CECILIA WALSH, Respondent, v WILLIAM KARAMITIS, Appellant. 89528 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

In the Matter of CECILIA WALSH, Respondent v WILLIAM KARAMITIS, Appellant

89528

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: January 17, 2002

Decided and Entered: February 28, 2002

Henry La Cap, New City, for appellant.

Finn & McAllister P.C., Monticello (Elizabeth McAllister of counsel), for respondent.

Daniel Gartenstein, Law Guardian, Kingston.

MEMORANDUM AND ORDER

Before: Mercure, J.P., Crew III, Spain, Carpinello and Mugglin, JJ.

Carpinello, J.

Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.), entered July 11, 2000, which, inter alia, granted petitioner's application, in a proceeding pursuant to Family Court Act article 4, to hold respondent in willful violation of a prior order of support.

The instant appeal is yet another chapter in years of litigation between these divorced parties, who are the parents of four children. Primarily at issue on this appeal is a finding by a Hearing Examiner, affirmed by Family Court, that respondent, himself a former attorney, willfully violated prior court orders defining his obligation to financially support his children, namely, to reimburse petitioner for unreimbursed medical expenses and college expenses.¹ Also at issue is whether petitioner presented sufficient factual evidence to support the amount awarded to her for college expenses, whether respondent's obligation to pay child support for an unemancipated child should be suspended because petitioner engaged in a course of conduct to interfere with his visitation, whether Family Court erred in not ordering a psychological evaluation of this child and certain evidentiary rulings. Finding each of respondent's arguments to be without merit, we affirm.

Respondent challenges the finding of contempt against him as "erroneous as a matter of law". He asserts that no order directs him to reimburse petitioner for uninsured medical, dental and/or orthodontic expenses and that no order informed him that he had a duty to respond to petitioner's requests for reimbursement of his children's college expenses. Suffice it to say, the parties' 1985 separation agreement, which is incorporated but not merged into their judgment of divorce, as well as Family Court orders entered March 6, 1992 and December 2, 1994, clearly and unambiguously obligated respondent to satisfy each of these financial obligations, and respondent's attempts to suggest otherwise are patently meritless. The separation agreement acknowledges the "utmost importance" of a college education for the parties' children, as well as each parties' "intention to provide such educational opportunities to the children subject to their respective financial ability to do so at the time". It further provides that "[t]he parties agree to share equally to the extent they are able to do so the financial responsibility to provide each child with up to four (4) years of full-time undergraduate study". Under the final version of the separation agreement, respondent also agreed to cover all "excess" medical costs.² Moreover, the March 6, 1992 order unequivocally states that "[r]espondent is responsible to pay to * * * [p]etitioner, a minimum of one-half of all of the parties['] children's college expenses for that amount which is required for the children to attend at a State University of New York college campus" and the December 2, 1994 order notes that respondent "has not paid college, medical and dental expenses" to petitioner. Thus, there is more than adequate record support confirming respondent's legal obligation to reimburse petitioner for these expenses.

Turning to the finding of willfulness, we note that "[a] finding of a willful violation of a child support order 'requires proof of both the ability to pay support and the failure to do so'" (Matter of Nickerson v Bellinger, 258 A.D.2d 688, 688, quoting Matter of Powers v Powers, 86 N.Y.2d 63, 68). Here, petitioner established her direct case of a willful violation with proof that respondent failed to reimburse her for college expenses and unreimbursed medical expenses, thus shifting the burden to him "to offer some competent, credible evidence of his inability to make the required payments" (Matter of Powers v Powers, supra, at 69-70). We need look no further than respondent's own objections to the Hearing Examiner's decision in this case to conclude that he failed in this burden since he himself concedes that he is financially able to pay.³ Since there can be no doubt that respondent had legitimate child support obligations which he was lawfully obligated to pay...