Grucci v. Villanti, N.Y. App. Div., Judgment, Law, casemine.com

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Docket Number

Attorney(S)

Arthur V. Graseck, Jr., Oakdale, N.Y., for appellant. Christine M. Villanti, South Huntington, N.Y., respondent pro se.

Judges

Ruth C. Balkin

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Smart Summary

Factual and Procedural Background

This appeal arises from a Family Court proceeding pursuant to Family Court Act article 4, in which the father sought a downward modification of a child support order dated December 13, 2006. The Family Court, Suffolk County, after a hearing, denied the father's petition for modification, found that he willfully violated the support order, and, in effect, denied his motion to recuse the Support Magistrate. The father appealed from the order dated October 12, 2011, which denied his objections to two prior Support Magistrate orders dated August 24, 2011.

Legal Issues Presented

Whether the father met his burden to show a substantial change in circumstances warranting a downward modification of the child support order entered on consent.
Whether the father's claim of alienation of the child by the mother justified termination or reduction of his child support obligation under the doctrine of constructive emancipation.
Whether the father willfully violated the existing child support order by failing to pay his share of the child's college tuition.
Whether the Support Magistrate erred in denying the father's motion to recuse her from the hearing.

Arguments of the Parties

Appellant's Arguments

The father argued for a downward modification of the child support order, claiming a substantial change in circumstances.
He contended that the mother had alienated the child from him, which under the doctrine of constructive emancipation should relieve him of the support obligation.
The father asserted he should not be required to pay the child's college tuition, citing the child’s taking out student loans and his belief that the mother might misuse funds earmarked for tuition.
He moved for the recusal of the Support Magistrate, alleging bias or prejudgment.

Respondent's Arguments

The mother opposed the modification petition and established that the father had willfully violated the support order by failing to pay college tuition as required.
She maintained that there was no abandonment or constructive emancipation by the child, as there was no refusal of all contact or visitation with the father.
The mother did not consent to the recusal and challenged the father's motion on the basis that no legal grounds for disqualification existed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Anderson v. Anderson, 92 A.D.3d 779, 938 N.Y.S.2d 351	Burden on party seeking modification of support to show substantial change in circumstances	Applied to hold that the father failed to demonstrate a substantial change warranting modification.
Matter of Ceballos v. Castillo, 85 A.D.3d 1161, 926 N.Y.S.2d 142	Standard for modification of child support orders	Reinforced the requirement that the father prove a substantial change in circumstances.
Schulman v. Schulman, 101 A.D.3d 1098, 956 N.Y.S.2d 577	Doctrine of constructive emancipation requiring abandonment by child to forfeit support	Used to reject father's claim that alienation justified termination of support since child did not refuse all contact.
Matter of Gold v. Fisher, 59 A.D.3d 443, 873 N.Y.S.2d 139	Constructive emancipation and abandonment principles	Supported the court’s conclusion that child’s reluctance is insufficient to constitute abandonment.
Matter of Powers v. Powers, 86 N.Y.2d 63, 629 N.Y.S.2d 984, 653 N.E.2d 1154	Proof of willful violation of support order through failure to pay shifts burden to respondent	Applied to find that father’s failure to pay tuition established prima facie willful violation.
Matter of Kaplan v. Kaplan, 102 A.D.3d 873, 957 N.Y.S.2d 903	Standards for establishing willful violation of support orders	Supported the court’s holding that father failed to rebut presumption of ability to pay.
Matter of Marra v. Hernandez, 102 A.D.3d 699, 956 N.Y.S.2d 908	Willful violation and burden shifting in child support enforcement	Reinforced the court’s conclusion on willful violation by father.
Matter of McGrath v. D'Angio, 85 A.D.3d 794, 924 N.Y.S.2d 806	Discretionary standard for recusal of Support Magistrates absent legal basis under Judiciary Law § 14	Applied to uphold denial of recusal motion for lack of legal grounds.
Matter of Alyssa A. [Michelle N.–Sandra N.], 79 A.D.3d 740, 913 N.Y.S.2d 690	Recusal standards and discretion of courts in Family Court proceedings	Supported the court’s exercise of discretion denying recusal.
Matter of O'Donnell v. Goldenberg, 68 A.D.3d 1000, 890 N.Y.S.2d 331	Recusal standards and burden of proof for bias or prejudgment	Applied to conclude no abuse of discretion in denying recusal.
Matter of Stone v. Stone, 236 A.D.2d 615, 654 N.Y.S.2d 677	Procedural rule on raising new contentions on appeal (CPLR 5501)	Referenced to reject father's contentions raised for the first time on appeal.

Court's Reasoning and Analysis

The court began by affirming that the father, as the party seeking a downward modification of a child support order entered on consent, bore the burden of demonstrating a substantial change in circumstances. The father failed to provide evidence of such a change after the December 13, 2006 order. His claim that the mother alienated the child was analyzed under the doctrine of constructive emancipation, which requires that a child of employable age actively abandon the noncustodial parent by refusing all contact and visitation to forfeit support. The court found no evidence that the child refused all contact, distinguishing mere reluctance from abandonment.

Regarding the willful violation of the support order, the court noted that proof of failure to pay child support as ordered establishes a prima facie case of willful violation, shifting the burden to the respondent to rebut. The father admitted to not paying his share of college tuition and failed to rebut the presumption of ability to pay. The father's concerns about the child's student loans and the mother's use of funds were irrelevant to the determination of willful violation.

The court also addressed the father's motion to recuse the Support Magistrate, holding that absent a legal basis under Judiciary Law § 14, the court has discretion over recusal decisions. The father's counsel conceded no legal grounds existed, and no proof of bias or prejudgment was presented. The court found no abuse of discretion in denying recusal.

Finally, the court dismissed the father's other contentions as either without merit or improperly raised for the first time on appeal.

Holding and Implications

The order dated October 12, 2011, is affirmed, with costs.

The court's decision directly upholds the denial of the father's petition for downward modification of child support, confirms the finding of his willful violation of the support order, and affirms the denial of his motion to recuse the Support Magistrate. This decision enforces the principle that a party seeking modification must prove a substantial change in circumstances and that abandonment by the child must be clear and total to affect support obligations. The ruling does not establish new precedent but applies established legal standards to the facts presented, resolving the dispute between these parties accordingly.

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In the Matter of Michael J. GRUCCI, appellant, v. Christine M. VILLANTI, respondent.

RUTH C. BALKIN

Arthur V. Graseck, Jr., Oakdale, N.Y., for appellant. Christine M. Villanti, South Huntington, N.Y., respondent pro se.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Hoffmann, J.), dated October 12, 2011, which denied his objections to two orders of the same court (Fields, S.M.), both dated August 24, 2011, which, after a hearing, denied his petition for a downward modification of an order of child support dated December 13, 2006, determined that he willfully violated the order of child support, and, in effect, denied his motion to recuse the Support Magistrate from the hearing.

ORDERED that the order dated October 12, 2011, is affirmed, with costs.

The Family Court properly denied the father's objections to the Support Magistrate's orders. The father, as the party seeking modification of a support order entered on consent, had the burden of showing that there had been a substantial change in circumstances ( see Matter of Anderson v. Anderson, 92 A.D.3d 779, 938 N.Y.S.2d 351;Matter of Ceballos v. Castillo, 85 A.D.3d 1161, 926 N.Y.S.2d 142). The father failed to prove a change of circumstances warranting modification of his support obligation, and the Family Court properly denied his modification petition.

The father claimed that he should no longer be required to pay support because the mother had alienated the child from him. Under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support ( see Schulman v. Schulman, 101 A.D.3d 1098, 956 N.Y.S.2d 577;Matter of Gold v. Fisher, 59 A.D.3d 443, 873 N.Y.S.2d 139). However, a child's reluctance to see a parent is not abandonment ( see Schulman v. Schulman, 101 A.D.3d at 1098, 956 N.Y.S.2d 577;Matter of Glen L.S. v. Deborah A.S., 89 A.D.3d 856, 932 N.Y.S.2d 177;Matter of Turnow v. Stabile, 84 A.D.3d 1385, 924 N.Y.S.2d 292;Kordes v. Kordes, 70 A.D.3d 782, 893 N.Y.S.2d 633). There is no evidence in the record that the child has refused all contact and visitation with the father. The Support Magistrate did not err in excluding testimony regarding events that occurred before the December 13, 2006, order of support. Those events could not show a change in circumstances after the entry of the support order.

The mother established that the father had willfully violated the order of support. Proof that a respondent in a Family Court Act article 4 proceeding has failed to pay child support as ordered is sufficient to establish a prima facie case of willful violation, shifting to the respondent the burden of going forward ( see Matter of Powers v. Powers, 86 N.Y.2d 63, 68–69, 629 N.Y.S.2d 984, 653 N.E.2d 1154;Matter of Kaplan v. Kaplan, 102 A.D.3d 873, 957 N.Y.S.2d 903;Matter of Marra v. Hernandez, 102 A.D.3d 699, 956 N.Y.S.2d 908). Here, the father acknowledged that he had not paid his share of the child's college tuition, as required by the order of support. The father failed to rebut the presumption of his ability to pay college expenses as ordered ( seeFamily Ct. Act § 437). The fact that the child had taken out student loans, and the father's belief that the mother would use funds earmarked for tuition for other purposes, were irrelevant for the purpose of determining whether the father had violated the order of support.

The Support Magistrate did not err in denying the father's motion for her to recuse herself. The father's counsel acknowledged at the hearing that there was no legal basis for disqualification of the Support Magistrate. Where no legal basis for disqualification under Judiciary Law § 14 is alleged, a court is the sole arbiter of the need for recusal, and its decision is a matter of discretion and personal conscience ( see Matter of McGrath v. D'Angio, 85 A.D.3d 794, 924 N.Y.S.2d 806;Matter of Alyssa A. [ Michelle N.–Sandra N.], 79 A.D.3d 740, 913 N.Y.S.2d 690;Matter of O'Donnell v. Goldenberg, 68 A.D.3d 1000, 890 N.Y.S.2d 331). The father failed to set forth any proof of bias or prejudgment to warrant the conclusion that the Support Magistrate's refusal to recuse herself was an improvident exercise of discretion ( see Matter of Alyssa A. [ Michelle N.–Sandra N.], 79 A.D.3d at 740, 913 N.Y.S.2d 690;Matter of O'Donnell v. Goldenberg, 68 A.D.3d at 1000, 890 N.Y.S.2d 331).

The father's remaining contentions are either without merit or improperly raised for the first time on appeal ( seeCPLR 5501; Matter of Stone v. Stone, 236 A.D.2d 615, 654 N.Y.S.2d 677).

Grucci v. Villanti