Opinion
2011-11-18
In the Matter of Mark D. COLEMAN, Petitioner–Appellant,v.Maureen M. MURPHY, Respondent–Respondent.
Bucci Law Firm, PLLC, Baldwinsville (Rosemary E. Bucci of Counsel), for Petitioner–Appellant.John M. Murphy, Jr., Phoenix, for Respondent–Respondent.Lisa M. Fahey, Attorney for the Child, East Syracuse, for Casey M.C.
Bucci Law Firm, PLLC, Baldwinsville (Rosemary E. Bucci of Counsel), for Petitioner–Appellant.John M. Murphy, Jr., Phoenix, for Respondent–Respondent.Lisa M. Fahey, Attorney for the Child, East Syracuse, for Casey M.C.
MEMORANDUM:
Petitioner father commenced this proceeding pursuant to Family Court Act article 4 seeking to terminate his support obligation for the parties' son on the grounds that respondent mother had frustrated the father's visitation rights and that his son had abandoned him. The father appeals from an order dismissing his petition without prejudice “for lack of proper cause of action for filing.” We agree with the father that the Referee erred in dismissing the petition without conducting a hearing. Indeed, the Referee was required to “conduct a hearing on [the] petition to modify a support order where the petition [was] ‘supported by affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested.’ Here, [the father] established a prima facie case for the relief requested with respect to child support by submitting evidentiary material establishing that his [son] had abandoned him. His submissions in support of the petition established that his repeated attempts at communication with his [son] had been refused and that [he] had expressed a clear wish to ‘have nothing to do with’ ” the father ( Matter of Garcia v. Barie, 59 A.D.3d 1090, 875 N.Y.S.2d 655; see Matter of Saunders v. Aiello, 59 A.D.3d 1090, 1091, 875 N.Y.S.2d 656; cf. Matter of Hootnick v. Cohen, 193 A.D.2d 1092, 598 N.Y.S.2d 884). In addition, the petition alleged
that the mother had refused to permit the father to exercise his visitation rights, and “a custodial parent's ‘deliberate frustration’ of visitation rights can, under appropriate circumstances, warrant the suspension of future child support payments” ( Hiross v. Hiross, 224 A.D.2d 662, 663, 639 N.Y.S.2d 70). Consequently, we reverse the order, reinstate the petition, and remit the matter to Family Court for further proceedings thereon.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated, and the matter is remitted to Family Court, Onondaga County, for further proceedings.