Opinion
September 18, 1981
Appeal from the Onondaga Supreme Court, Murphy, J.
Present — Simons, J.P., Hancock, Jr., Doerr, Denman and Moule, JJ.
Order unanimously affirmed, without costs. Memorandum: Special Term properly granted petitioner's motion to stay arbitration demanded August 4, 1980 by respondent, his former wife. The separation agreement between the parties, dated January 25, 1974, was incorporated but not merged in the divorce decree and contained a clause referring to arbitration disputes arising out of that agreement. The judgment of divorce granted in June, 1974, provided that all matters arising in the future pertaining to custody, visitation, or support be referred to Family Court. Respondent's demand for arbitration includes arrears in child support under the divorce decree as modified by an order of Family Court on September 8, 1975 after a trial and allegedly not paid in accordance therewith. On April 4, 1977 respondent petitioned Family Court for enforcement of the said modified support provision. She withdrew the petition on July 5, 1977. By participating in Family Court proceedings concerning the very matters in dispute, respondent has waived her right to arbitrate these matters (see De Sapio v. Kohlmeyer, 35 N.Y.2d 402; Board of Educ. v. Mancuso Bros., 25 Misc.2d 122). She also seeks enforcement of an earlier arbitration award of June 13, 1975. This award was reduced to judgment by Supreme Court and thus cannot now be enforced in a new arbitration proceeding.