MatterofHastievTokle

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 20, 2014 518306
________________________________
In the Matter of JESSICA
HASTIE, Formerly Known
as JESSICA TOKLE,
Respondent,
v MEMORANDUM AND ORDER
SEAN TOKLE,
Appellant.
________________________________
Calendar Date: October 17, 2014
Before: Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.
__________
Bloom & Bloom, PC, New Windsor (Peter E. Bloom of counsel),
for appellant.
Fisher & Stote, LLP, Kingston (Robert J. Fisher of
counsel), for respondent.
__________
Stein, J.P.
Appeal from an order of the Family Court of Ulster County
(McGinty, J.), entered June 5, 2013, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article 4,
to hold respondent in willful violation of a prior order of
support.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of two children (born in
1989 and 1990). Pursuant to a 2007 order, the father was
directed to pay a single weekly amount for the support of both
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children.1 In January 2012, the mother filed a petition alleging
that the father had willfully violated the 2007 order by failing
to pay child support for a five-month period in 2011. As a
defense to the violation petition, the father claimed that the
mother had waived her right to child support after the older
child had reached the age of 21 and the younger child allegedly
had become emancipated. After a hearing, a Support Magistrate
(Linen, S.M.) found the father to be in willful violation of the
support order and directed judgment against him for arrears.
Family Court thereafter confirmed the finding of a willful
violation and also directed the father to, among other things,
pay the mother's counsel fees. The father now appeals, and we
affirm.
We reject the father's contention that the mother waived
her right to receive child support. While a parent can expressly
waive child support, such waiver must represent a "voluntary and
intentional abandonment of a known right" (Matter of Williams v
Chapman, 22 AD3d 1015, 1017 [2005] [internal quotation marks and
citations omitted]; see Matter of Dox v Tynon, 90 NY2d 166, 168
[1997]). Here, the mother sent the father a note in January 2011
indicating that the younger child had graduated from school and
had become employed. The following month, the mother sent a
second note indicating that both children would be "claiming
themselves for the 2010 tax season." The father's attorney
advised him that he could stop paying child support because these
letters represented an admission by the mother that the children
were both emancipated. His attorney then sent a letter to the
mother advising her that the father's child support payments
would be terminated as of March 2011.
Contrary to the father's arguments, we do not view the
mother's notes as reflecting a voluntary and intentional
abandonment of her right to receive continued child support, as
there is nothing in the notes indicating that the mother agreed
that the father was no longer required to pay such support. In
addition, the record reflects that, when she received the letter
1
The order did not specify that it would change upon the
emancipation of the older child.
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from the father's attorney, the mother was not aware that she had
any recourse. Nor did the mother's failure to immediately
challenge the letter from the father's attorney by commencing an
enforcement proceeding constitute a waiver of child support, as a
"recipient may not impliedly 'waive the right to unpaid child
support simply by failing to demand payment or seek enforcement
of support obligations'" (Matter of Williams v Chapman, 22 AD3d
at 1016, quoting Matter of Dox v Tynon, 90 NY2d at 168; accord
Matter of Duffy v Duffy, 30 AD3d 735, 736 [2006]).
In the absence of an express waiver, the father was
required to apply to Family Court for a modification of his
support obligation (see Matter of Wendel v Nelson, 116 AD3d 1057,
1058 [2014]; Matter of Williams v Chapman, 22 AD3d at 1017).
Having failed to do so, the father was not entitled to resort to
self-help and terminate his support payments based upon his own
assessment of his continued legal obligation in view of the
children's circumstances. Inasmuch as the father did not
commence a modification proceeding, Family Court was precluded
from reducing or annulling the arrears that accrued (see Family
Ct Act § 451; Matter of Dox v Tynon, 90 NY2d at 168-169; compare
Matter of Russo v Irwin, 49 AD3d 1039, 1042 [2008]). Therefore,
the proof that the father failed to make 26 weekly child support
payments constituted prima facie evidence of a willful violation
(see Family Ct Act § 454 [3] [a]; Matter of Richards-Szabo v
Szabo, 99 AD3d 1069, 1070 [2012]), in response to which the
father failed to present competent evidence of his inability to
pay. As a result, we discern no basis to disturb the finding
that the father willfully violated the child support order or the
consequent award of counsel fees (see Family Ct Act §§ 438 [b];
454 [3]; Matter of Duffy v Duffy, 30 AD3d at 737). To the extent
not specifically addressed, the parties' remaining contentions
have been reviewed and found to be without merit.
McCarthy, Garry, Lynch and Devine, JJ., concur.
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court