BRYANT, SYLVIA F. v. CARTY, WILLIAM M. ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1134
    CA 16-00202
    PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ.
    SYLVIA F. BRYANT, PLAINTIFF-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    WILLIAM M. CARTY, DEFENDANT-APPELLANT.
    DEGNAN LAW OFFICE, CANISTEO (ANDREW J. ROBY OF COUNSEL), FOR
    DEFENDANT-APPELLANT.
    DAVIDSON FINK LLP, ROCHESTER, KELLY WHITE DONOFRIO LLP (DONALD A.
    WHITE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
    Appeal from an order of the Supreme Court, Allegany County
    (Thomas P. Brown, A.J.), entered October 7, 2015. The order declined
    to set aside the child support provisions of the judgment of divorce.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs.
    Memorandum: In a prior appeal, we agreed with defendant that
    Supreme Court erred in denying, without a hearing, that part of his
    motion seeking to vacate the child support provisions of the judgment
    of divorce, and we remitted the matter for a hearing (Bryant v Carty,
    118 AD3d 1459). As we explained in our decision, “the judgment of
    divorce specifically provided that the child support provisions of the
    parties’ 2009 Property Settlement and Separation Agreement (Agreement)
    merged with the judgment of divorce” (id. at 1459). It is undisputed
    that, in determining the amount of child support, the Agreement
    contained income information from 2003, which the parties relied on in
    a prior agreement entered into in 2005, rather than income information
    from 2008, as required by Domestic Relations Law § 240 (1-b) (b) (5)
    (i). Following a hearing, which the record establishes was limited to
    defendant’s allegation that the Agreement was procured by fraud on the
    part of plaintiff, the court properly determined that defendant failed
    to meet his burden of establishing fraud (see Weimer v Weimer, 281
    AD2d 989, 989; see generally Christian v Christian, 42 NY2d 63, 71-
    73). The evidence established that the parties agreed to use the 2003
    income information to expedite the divorce and that defendant
    carefully read the Agreement before he signed it.
    Defendant raises for the first time on appeal his contention that
    the child support provisions of the judgment should be vacated on the
    ground that those provisions do not comply with the requirements of
    the Child Support Standards Act (see Domestic Relations Law § 240 [1-
    -2-                          1134
    CA 16-00202
    b] [b], [h]), and thus that contention is not properly before us (see
    Leroy v Leroy, 298 AD2d 923, 924; see also Nash v Yablon-Nash, 61 AD3d
    832, 832; Dudla v Dudla, 304 AD2d 1009, 1010; see generally Ciesinski
    v Town of Aurora, 202 AD2d 984, 985).
    Although plaintiff properly concedes that the court erred in
    precluding defendant from questioning plaintiff’s former attorney
    regarding certain factual matters (see Stanwick v A.R.A. Servs., 124
    AD2d 1041, 1041-1042; see generally Muriel Siebert & Co., Inc. v
    Intuit Inc., 32 AD3d 284, 286, affd 8 NY3d 506), we conclude that the
    error was harmless inasmuch as follow-up questions would have
    necessarily involved confidential communications made for the purpose
    of giving or obtaining legal advice (see generally Stanwick, 124 AD2d
    at 1042). Furthermore, there is no evidence that the communication
    between plaintiff and her former attorney was “made ‘in furtherance of
    a fraudulent scheme, an alleged breach of fiduciary duty or an
    accusation of some other wrongful conduct,’ ” and thus, contrary to
    defendant’s contention, the crime-fraud exception does not apply
    (Parnes v Parnes, 80 AD3d 948, 951).
    Entered:   December 23, 2016                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 16-00202

Judges: Cur-Ran, DeJoseph, Present--Smith, Scudder

Filed Date: 12/23/2016

Precedential Status: Precedential

Modified Date: 11/1/2024