Wendel v. Nelson

• Decision Date: 30 April 2014
• Citation: 116 A.D.3d 1057,983 N.Y.S.2d 878,2014 N.Y. Slip Op. 02946
• Parties: In the Matter of Joy WENDEL, respondent, v. John E. NELSON, appellant. (Proceeding No. 1) In the Matter of John E. Nelson, appellant, v. Joy Wendel, respondent. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 1057

983 N.Y.S.2d 878

2014 N.Y. Slip Op. 02946

In the Matter of Joy WENDEL, respondent,

v.John E. NELSON, appellant. (Proceeding No. 1)

In the Matter of John E. Nelson, appellant,

v.Joy Wendel, respondent. (Proceeding No. 2).

Supreme Court, Appellate Division, Second Department, New York.

April 30, 2014.

OPINION TEXT STARTS HERESparacino & Sparacino, Northport, N.Y. (Joseph S. Gulino, Jr., of counsel), for appellant.

In related child support proceedings pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County (Kent, J.), dated January 31, 2013, which denied his objections to two orders of the same court (Cahn, S.M.), both dated September 4, 2012, which, after a hearing, dismissed his petition for a downward modification of his child support obligation, in effect, granted the mother's petition for an award of child support arrears, and directed the entry of a money judgment in favor of the mother and against him in the amount of $60,175.

ORDERED that the order dated January 31, 2013, is affirmed, without costs or disbursements.

The Family Court did not err in denying the father's objections to the Support Magistrate's orders. The father failed to prove that the mother waived her right to child support, as he failed to proffer evidence of a voluntary and intentional relinquishment of that right by the mother ( see Matter of Hinck v. Hinck, 113 A.D.3d 681, 682–683, 979 N.Y.S.2d 116;Matter of Tafuro v. Tafuro, 102 A.D.3d 877, 878, 958 N.Y.S.2d 202;Stevens v. Stevens, 82 A.D.3d 873, 918 N.Y.S.2d 879). The mother did not waive her right to child support by accepting the child's Social Security benefits. A dependent child's Social Security benefits are designed to supplement existing resources and are not intended to displace the obligation of parents to support their children ( see Matter of Graby v. Graby, 87 N.Y.2d 605, 611, 641 N.Y.S.2d 577, 664 N.E.2d 488;Matter of Jones v. Smith, 59 A.D.3d 546, 547, 872 N.Y.S.2d 288). Although the father testified at a hearing that the mother expressly agreed, in 2006, to accept Social Security benefits in lieu of child support, the court credited the mother's testimony that she did not agree to waive child support in exchange for Social Security benefits, and there is no basis in the record to disturb the court's credibility determination ( see Matter of Anonymous, 20 A.D.3d 562, 563, 799 N.Y.S.2d 264). The father did not adduce any other evidence to prove that the mother agreed to waive child support.

In the absence of an express waiver, a party seeking modification of a child...