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In re Barrio

Appellate Division of the Supreme Court of New York, Second Department
Mar 30, 2010
71 A.D.3d 1140 (N.Y. App. Div. 2010)

Opinion

Nos. 2009-06429, 2009-06430.

March 30, 2010.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Kings County (Danoff, J.), dated May 15, 2009, and (2) an amended order of the same court dated June 4, 2009, which denied his objections to so much of an order of the same court (Milsap, S.M.), dated January 8, 2009, as, without a hearing, granted the mother's petition for an award of child support arrears.

Snitow Kanfer Holtzer Millus, LLP, New York, N.Y. (Mark M. Holtzer and Alison M. Trainor of counsel), for appellant.

Robert Wanker, Brooklyn, N.Y., for respondent.

Before: Dillon, J.P., Balkin, Dickerson and Lott, JJ., concur.


Ordered that the appeal from the order is dismissed, without costs or disbursements, as that order was superseded by the amended order; and it is further,

Ordered that the amended order is affirmed, without costs or disbursements.

The father failed to proffer, before the Support Magistrate, any evidence of conduct on the part of the mother that could constitute "a voluntary and intentional relinquishment of a "known and otherwise enforceable right" to increased child support payments pursuant to the parties' stipulation of settlement and judgment of divorce ( Matter of O'Connor v Curcio, 281 AD2d 100, 104 [internal quotation marks omitted]; see Matter of Dox v Tynon, 90 NY2d 166; Matter of Gleason v Gleason, 247 AD2d 384, 385). Thus, the father was not entitled to a hearing with respect to his claim that the mother waived her right to child support payments ( see Eldridge v Eldridge, 228 AD2d 473; Mattera v Mattera, 214 AD2d 544, 545).


Summaries of

In re Barrio

Appellate Division of the Supreme Court of New York, Second Department
Mar 30, 2010
71 A.D.3d 1140 (N.Y. App. Div. 2010)
Case details for

In re Barrio

Case Details

Full title:In the Matter of LISA BARRIO, Respondent, v. RICHARD MONTANEZ, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 30, 2010

Citations

71 A.D.3d 1140 (N.Y. App. Div. 2010)
2010 N.Y. Slip Op. 2785
896 N.Y.S.2d 905

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