Persico v. Aslanian

287 A.D.2d 304, 731 N.Y.S.2d 364, 2001 N.Y. App. Div. LEXIS 9377

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 11, 2001
• Status: Published

Opinion

—Appeal from order, Family Court, Bronx County (Marian Shelton, J.), entered on or about June 26, 2000, which denied petitioner mother’s objections to an order of the same court (Kemp Reaves, H.E.), dated March 13, 2000, denying her application to enforce respondent father’s child support obligations as provided in the parties’ separation agreement incorporated, but not merged, in their judgment of divorce, and granting respondent’s cross petition for a downward modification of such obligations, unanimously dismissed, without costs, without prejudice to petitioner’s commencement of a new proceeding to enforce respondent’s child support obligations as provided in the separation agreement.

In denying petitioner’s objections, Family Court expressly relied upon audiotapes of the hearing before the Hearing Examiner, copies of which were supplied to petitioner but could not be transcribed by the court stenographers since they were largely inaudible. Lacking a transcript, and given only the Hearing Examiner’s abbreviated handwritten notes, we cannot say whether or not the challenged downward modification of child support was properly made in consideration of the factors set out in Family Court Act § 413 (1) (f) (1)-(10) (see, Matter of Graby v Graby, 87 NY2d 605, 610). Accordingly, we are constrained to dismiss the appeal. Determination of any new proceeding to enforce child support obligations should be expedited by Family Court. Concur — Nardelli, J. P., Lerner, Rubin, Saxe and Marlow, JJ.