Hickson v. Wallace

Appellate Division of the Supreme Court of New York

Hickson v. Wallace

270 A.D.2d 168, 755 N.Y.S.2d 364, 2000 N.Y. App. Div. LEXIS 3334

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 28, 2000

StatusPublished

Cited by2 cases

This text of 270 A.D.2d 168 (Hickson v. Wallace) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hickson v. Wallace, 270 A.D.2d 168, 755 N.Y.S.2d 364, 2000 N.Y. App. Div. LEXIS 3334 (N.Y. Ct. App. 2000).

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Opinion

—Order, Family Court, Bronx County (Alma Cordova, J.), entered on or about September 3, 1998, denying respondent’s objections to a Final Order of Support of the same court (James Weigert, H.E.), entered on or about June 30, 1998, which, after a hearing, ordered respondent to pay child support in the amount of $233 biweekly, with arrears of $4,660 to be paid in $50 biweekly installments, unanimously modified, on the law, to remand the matter for a proper determination of the basic child support obligation and the amount of petitioner’s arrears and to provide that petitioner’s arrears be offset against respondent’s arrears, and otherwise affirmed, without costs.

Since respondent was represented by counsel, who accepted service of petitioner’s second petition in court and in respondent’s presence without stating any objection on the record of that day, respondent’s objection to lack of personal jurisdiction was waived.

It was improper for the Hearing Examiner not to have fixed a basic child support obligation in the first instance (see, Bast v Rossoff, 91 NY2d 723). Therefore, the matter should be remanded for a proper fact finding and determination of the basic figure.

We decline to disturb the Hearing Examiner’s determinations made on the basis of his observation of the parties’ testimonial and documentary evidence (see, e.g., Matter of Klein v Klein, 251 AD2d 733, 735). We find, however, that petitioner’s arrears should be offset against respondent’s arrears of $4,660, particularly where the parties agreed to such an offset and where the Hearing Examiner had suspended petitioner’s payments in apparent anticipation of such an offset. We have considered respondent’s remaining arguments and find them unavailing.

Reargument granted, and upon reargument, the decision [169]*169and order of this Court entered on November 18, 1999 (266 AD2d 81) recalled and vacated and a new decision and order substituted therefor; motion otherwise denied. Concur — Rosenberger, J. P., Williams, Ellerin, Wallach and Andrias, JJ.

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—Order, Family Court, Bronx County (Alma Cordova, J.), entered on or about September 3, 1998, denying respondent’s objections to a Final Order of Support of the same court (James Weigert, H.E.), entered on or about June 30, 1998, which, after a hearing, ordered respondent to pay child support in the amount of $233 biweekly, with arrears of $4,660 to be paid in $50 biweekly installments, unanimously modified, on the law, to remand the matter for a proper determination of the basic child support obligation and the amount of petitioner’s arrears and to provide that petitioner’s arrears be offset against respondent’s arrears, and otherwise affirmed, without costs.

Since respondent was represented by counsel, who accepted service of petitioner’s second petition in court and in respondent’s presence without stating any objection on the record of that day, respondent’s objection to lack of personal jurisdiction was waived.

It was improper for the Hearing Examiner not to have fixed a basic child support obligation in the first instance (see, Bast v Rossoff, 91 NY2d 723). Therefore, the matter should be remanded for a proper fact finding and determination of the basic figure.

We decline to disturb the Hearing Examiner’s determinations made on the basis of his observation of the parties’ testimonial and documentary evidence (see, e.g., Matter of Klein v Klein, 251 AD2d 733, 735). We find, however, that petitioner’s arrears should be offset against respondent’s arrears of $4,660, particularly where the parties agreed to such an offset and where the Hearing Examiner had suspended petitioner’s payments in apparent anticipation of such an offset. We have considered respondent’s remaining arguments and find them unavailing.

Reargument granted, and upon reargument, the decision [169]*169and order of this Court entered on November 18, 1999 (266 AD2d 81) recalled and vacated and a new decision and order substituted therefor; motion otherwise denied. Concur — Rosenberger, J. P., Williams, Ellerin, Wallach and Andrias, JJ.

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270 A.D.2d 168, 755 N.Y.S.2d 364, 2000 N.Y. App. Div. LEXIS 3334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hickson-v-wallace-nyappdiv-2000.

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