Sipos v. Sipos
| Citation | 73 A.D.2d 1055,425 N.Y.S.2d 414 |
| Parties | Katalin SIPOS, Respondent, v. Ferenc A. SIPOS, Appellant. |
| Decision Date | 24 January 1980 |
| Court | New York Supreme Court Appellate Division |
Goldstein, Goldman, Kessler & Underberg, by Theodore S. Kantor, Rochester, for appellant.
Lawrence F. Tranello, Rochester, for respondent.
Before HANCOCK, J. P., and SCHNEPP, CALLAHAN, DOERR and WITMER, JJ.
In this Uniform Support of Dependents Law proceeding initiated in Florida, an appeal is taken from an order of Family Court, Monroe County, which, after a hearing, fixed child support in the weekly sum of $30. The order also granted visitation privileges to appellant for five weeks each year during the summer school recess, during which support payments were suspended, and an additional ten days during Christmas or spring school recess on an alternate basis. Two-thirds of the cost of transportation for visitation was directed to be borne by appellant and one-third by respondent.
The parties lived and were married in New York State where their one son was born on February 11, 1968. They were divorced in New York State on October 24, 1969. Under the decree of divorce, custody of the child was given to respondent and appellant was directed to pay the weekly sum of $30 for child support and was granted "reasonable rights of visitation . . . including the right to have said child with him on Sundays of each week between 10:00 a. m. and 6:00 p. m." Appellant complied with the provisions of the decree and regularly exercised visitation rights at all times while the child was physically present in New York State. On January 4, 1978 respondent moved from New York to Florida with the child. Thereafter, appellant refused to make support payments.
After a hearing, Family Court, Monroe County, found (1) that although appellant had the financial ability, he resisted paying the child support because his visitation rights under the divorce decree were interfered with; (2) that there was a "sincere interaction between the (appellant) and his son" that was "beneficial to the child"; and (3) that respondent's move to Florida subsequent to the divorce had "not been shown to have been an exceptional circumstance such as would preclude the noncustodial parent from obtaining some relief, however, the support of $30 per week is minimal under the circumstances and the noncustodial parent is able to maintain these payments".
Although Family Court's findings are supported by the evidence in the record we hold that they do not justify the relief accorded to the respondent. Family Court abused its discretion in failing adequately to protect appellant's visitation rights under the divorce decree.
The right of appellant to visit his child and his obligation to pay child support are dependent (Borax v. Borax, 4 N.Y.2d 113, 116, 172 N.Y.S.2d 805, 807, 149 N.E.2d 326, 327; Callender v. Callender, 37 A.D.2d 360, 325 N.Y.S.2d 420). "While it is clear that the deprivation of visitation rights, per se, will not relieve the father of his obligations, such deprivation when not required by some pressing concern for the welfare of the mother or child should suspend his obligations" (Abraham v. Abraham, 44 A.D.2d...
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