Scholet v. Newell
| Decision Date | 03 July 1996 |
| Citation | 644 N.Y.S.2d 858,229 A.D.2d 621 |
| Parties | In the Matter of Helen SCHOLET, Respondent, v. G. Michael NEWELL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
G. Michael Newell, Hartwick, appellant in person.
Lonalee Berkowitz, Upper Nyack, for respondent.
Before MIKOLL, J.P., and CREW, YESAWICH, PETERS and SPAIN, JJ.
Appeals (1) from an order of the Family Court of Otsego County (Pines, J.), entered January 11, 1995, which, in a proceeding pursuant to Family Court Act article 4, inter alia, dismissed as untimely respondent's objections to the Hearing Examiner's dismissal of his petition for modification of a prior order of child support and imposed sanctions against respondent, and (2) from an amended order of said court, entered March 15, 1995, which modified the court's prior order with respect to the payment of sanctions.
In September 1994 respondent, pro se, petitioned Family Court for a downward modification of a previous child support order, claiming a change in circumstances. Petitioner answered and moved for dismissal of respondent's petition, as well as counsel fees and sanctions against respondent for frivolous litigation. Following an appearance by the parties the Hearing Examiner, by decision and order entered November 1, 1994, dismissed respondent's petition, reserved decision regarding petitioner's request for counsel fees and recommended to Family Court that sanctions be imposed upon respondent for frivolous litigation. The Hearing Examiner determined that the savings educational grants and educational loans of the parties' college-aged daughter did not provide a basis for modifying respondent's share of support and that respondent had failed to offer any evidence to support his claims regarding extended visitation and nonmonetary contributions.
At the request of respondent, a stenographer employed at Family Court provided him with a copy of a tape recording of the hearing and, due to a misunderstanding, also provided respondent with a written notice that his deadline to object to the Hearing Examiner's order was extended to December 19, 1994. On December 13, 1994, respondent filed his objections to the Hearing Examiner's order of November 1, 1994. Petitioner filed an affirmation in support of her request for counsel fees, which respondent opposed. Thereafter, the Hearing Examiner entered an order fixing counsel fees.
In January 1995 Family Court dismissed respondent's objections as untimely and sanctioned respondent $500 for frivolous litigation. By amended decision and order entered in March 1995, Family Court ordered that the sanctions be paid within 30 days. Respondent appealed both orders of Family Court and this court granted a motion for consolidation of the appeals. 1
We affirm. Initially, however, we find merit to respondent's contention that Family Court erred in dismissing as untimely his objections to the order of November 1, 1994 (see, Family Ct.Act § 439[e] ). In our view, respondent correctly and understandably relied on a written notice from Family Court on which appears the title of the proceedings, which is signed by a court employee on behalf of the Clerk of the Family Court and which states that "the time for the respondent to file the written objection has been extended to December 19, 1994". Accordingly, we will review the record and address the merits of respondent's modification petition.
Pursuant to Domestic Relations Law § 236(B)(9)(b), a party is entitled to a modification of a child support award if it can be demonstrated that there has been a substantial change in circumstances (see, Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791). It is incumbent upon the movant to demonstrate that there has been a change in financial circumstances which necessitates a reduction in the award of child support. Further, if the movant fails to raise issues of material fact the court may dispense with an evidentiary hearing and dismiss the petition (see, Trainor v. Trainor, 188 A.D.2d 461, 590 N.Y.S.2d 910; Smith v. Smith, 174 A.D.2d 818, 571 N.Y.S.2d 127). Here, respondent's modification petition is based upon, inter alia, the child's summer-time earnings, a college grant that was awarded the child, college loans secured by the...
To continue reading
Request your trial
-
McDonald v. McDonald
...not be forced to diminish his or her own assets for basic necessities absent a showing of real need ( see Matter of Scholet v. Newell, 229 A.D.2d 621, 622, 644 N.Y.S.2d 858 [1996] ). The father only addressed the financial resources of the parents and one child, not any of the other factors......
-
Adefunke A. v. Adeniyi A.
...Lippman, 2012 State of the Judiciary Address at 3; Matter of Pizzo v. Pizzo, 47 A.D.2d 948, 367 N.Y.S.2d 310;Matter of Scholet v. Newell, 229 A.D.2d 621, 623, 644 N.Y.S.2d 858;Matter of Manwani v. Manwani, 286 A.D.2d 767, 768, 730 N.Y.S.2d 520). Indeed, the Family Court's caseload has been ......
-
Kotlyar v. Burshtein
...hearing on the matter, the father, as the movant, had to show the existence of a material issue of fact (see, Matter of Scholet v. Newell, 229 A.D.2d 621, 644 N.Y.S.2d 858; Trainor v. Trainor, 188 A.D.2d 461, 590 N.Y.S.2d The father failed to demonstrate the existence of any material issue ......
-
Knipple v. Flanagan
...Relations Law § 236[B][b]; Matter of Hanehan v. Hanehan, 260A.D.2d 685, ----, 687 N.Y.S.2d 467, 468; see also, Matter of Scholet v. Newell, 229 A.D.2d 621, 622, 644 N.Y.S.2d 858). That petitioner's visitation has been increased--apparently the child now spends 40% of his time with petitione......