Resnick v. Zoldan

• Decision Date: 02 November 1987
• Docket Number: No. 1,No. 2,1,2
• Citation: 520 N.Y.S.2d 434,134 A.D.2d 246
• Parties: Martin J. RESNICK, Appellant-Respondent, v. Barbara (Resnick) ZOLDAN, Respondent-Appellant. (Action) Barbara (Resnick) ZOLDAN, Respondent, v. Martin J. RESNICK, Appellant. (Action)
• Court: New York Supreme Court — Appellate Division

Page 434

520 N.Y.S.2d 434

134 A.D.2d 246

Martin J. RESNICK, Appellant-Respondent, v. Barbara (Resnick) ZOLDAN, Respondent-Appellant. (Action No. 1)

Barbara (Resnick) ZOLDAN, Respondent, v. Martin J. RESNICK, Appellant. (Action No. 2)

Supreme Court, Appellate Division,

Second Department.

Nov. 2, 1987.

Kolleeny, Kitay & Hort, New York City (Leonard Kolleeny and Harvey R. Kitay, of counsel), for appellant-respondent in Action No. 1 and appellant in Action No. 2.

Albert J. Emanuelli, White Plains, for respondent-appellant in Action No. 1 and respondent in Action No. 2.

Before NIEHOFF, J.P., and WEINSTEIN, KUNZEMAN and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeals by Martin J. Resnick (hereafter the father) from (1) an order of the Supreme Court, Westchester County (Rubenfeld, J.), entered July 3, 1986, which denied his application, inter alia, to restrain Barbara (Resnick) Zoldan (hereinafter the mother) from allegedly interfering with the father's visitation rights with the parties' daughter, and (2) from an order of the same court (Martin, J.), entered October 17, 1986, which, inter alia, awarded the mother a money judgment in the amount of $22,923.31 as and for child support arrears, awarded her $3,500 in counsel fees, and denied the father's cross application to direct reasonable visitation with the parties' child. The mother cross-appeals from so much of the same order entered July 3, 1986, as failed to award her certain moneys held in escrow pursuant to a stipulation of the parties.

ORDERED that the order entered July 3, 1986, is reversed, on the law and the facts, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith; and it is further,

ORDERED that the order entered October 17, 1986, is affirmed, without costs or disbursements.

Contrary to the mother's present contention, the court acted properly in denying her motion to dismiss the father's application under the rule of Baker v. Baker, 66 N.Y.2d 649, 495 N.Y.S.2d 959, 486 N.E.2d 817, as the application was properly brought on pursuant to Domestic Relations Law § 240 by order to show cause, and, in any event, the original judgment of divorce specifically provides for visitation (cf., Sileo v. Sileo, 115 A.D.2d 535, 495 N.Y.S.2d 728).

However, while we agree with the court's determination that the mother did not actively interfere with or deny visitation, we conclude that the court should have ordered the parties and their daughter to undergo a program of psychiatric counseling under the court's direction and supervision in an effort to attempt a gradual resumption of visitation (see generally, Bubbins v. Bubbins, 114 A.D.2d 346, 493 N.Y.S.2d 869; Wostl v. Wostl, 75 A.D.2d 1013, 429 N.Y.S.2d 328, appeal dismissed 52 N.Y.2d 787, 436 N.Y.S.2d 624, 417 N.E.2d 1012). The natural right of visitation jointly enjoyed by the noncustodial parent and the child is more precious than any property right (see, Biamby v. Biamby, 114 A.D.2d 830, 494 N.Y.S.2d 741), and it may not be denied absent a showing that visitation would be inimical to the child's welfare (see, Kozak v. Kozak, 111 A.D.2d 842, 490 N.Y.S.2d 583, appeal dismissed 66 N.Y.2d 913, 498 N.Y.S.2d 794, 489 N.E.2d 763; Daghir v. Daghir, 82 A.D.2d 191, 441 N.Y.S.2d 494, affd. 56 N.Y.2d 938, 453 N.Y.S.2d 609, 439 N.E.2d 324). There is no evidence in the instant record that the father is an abusive or unfit parent, and it appears that the child's reluctance to visit with him has resulted from the combined effects of her confusion regarding the roles of her natural father and her stepfather, her mother's failure to affirmatively encourage visitation, and the combative relationship between her parents which has occasionally manifested itself in inappropriate remarks made by the natural father to the child. While the child's feelings and attitudes are no doubt relevant (see generally, Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659), they are not determinative of the...