Opinion
November 4, 1985
Appeal from the Supreme Court, Queens County (Miller, J.).
Order and judgment reversed, with costs, and matter remitted to Special Term for further proceedings in accordance herewith. Said proceedings are to be conducted by a Justice other than the one who made the order and judgment under review.
Special Term erred in granting plaintiff the full amount of unpaid support payments in light of its factual finding that defendant's visitation rights were pervasively interfered with. A noncustodial parent's right to visitation is a right more precious than any property right (see, Entwistle v Entwistle, 61 A.D.2d 380, 384, appeal dismissed 44 N.Y.2d 851) and the custodial parent should not ordinarily be allowed to enjoy the benefits of a support order when visitation is being denied (Courten v Courten, 92 A.D.2d 579; Matter of Giacopelli v Giacopelli, 82 A.D.2d 806, appeal dismissed 54 N.Y.2d 787). Since this record indicates that a reduction of arrears would not be inimical to the children, the arrears should be reduced to reflect the periods when visitation was denied. Furthermore, Special Term apparently failed to consider the extent to which the arrears should have been reduced by (1) the admittedly gratuitous support rendered by plaintiff's parents, who neither requested nor expected reimbursement (see, e.g., Maule v Kaufman, 33 N.Y.2d 58), and (2) defendant's set-off claims. Similarly, it was error to grant that branch of plaintiff's cross motion which was for attorney's fees (Domestic Relations Law § 237) in the absence of filed net worth statements or an examination of plaintiff's ability to pay her attorney (see, Entwistle v Entwistle, 92 A.D.2d 879; Lewin v Lewin, 91 A.D.2d 649; 22 NYCRR 699.11).
On the issue of custody, we find that defendant made a sufficient showing of extraordinary circumstances to warrant review of the issue of custody (see, e.g., Matter of Bennett v Jeffreys, 40 N.Y.2d 543). However, the hearing held here was far too cursory to allow full review of the broad range of circumstances applicable to this issue (see, Eschbach v Eschbach, 56 N.Y.2d 167).
Consequently, a new hearing is required to (a) calculate the amount of arrears, if any, owed to plaintiff, (b) obtain a full examination of that branch of plaintiff's cross motion which was for attorney's fees upon the filing of the necessary official forms ( 22 NYCRR 699.11), and (c) proceed with a reexamination of defendant's motion for a change of custody.
Finally, upon a motion to obtain custody or to enforce a right of visitation, the court may sua sponte alter the provisions for support of a child as justice requires (Domestic Relations Law § 240). Nonetheless, where support obligations are established by a valid contractual agreement which is incorporated but not merged in the parties' judgment of divorce, the bargained-for support obligations should not be altered "[a]bsent a showing of an unanticipated and unreasonable change in circumstances" (Matter of Boden v Boden, 42 N.Y.2d 210, 213; cf. Lewin v Lewin, supra). No such change of circumstances is apparent upon this record. Therefore, Special Term's modification of defendant's child support obligations cannot be sustained. Defendant's support obligations may be reexamined should the facts at the new hearing indicate a change of circumstances. Niehoff, J.P., Lawrence, Eiber and Kooper, JJ., concur.