Buehler v. Buehler , 73 A.D.2d 716 ( 1979 )


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  • from an order of the Family Court of Chemung County, entered September 29, 1978, which, inter alia, directed that the appellant provide for his daughter’s college education. It appears that in June of 1978 the appellant received notice that he was being directed to appear in court. His counsel contacted the Clerk of the Family Court, requesting copies of the petition or other complaint, but he received none. On August 25, 1978 appellant and his counsel appeared in Family Court and they accepted service of a petition charging the appellant with failure to obey a prior support order, dated June 7, 1976. The petition alleged, in part, that the 1976 order directed, as required in a prior separation agreement, "that the Father [appellant] should be responsible to provide a college education for each of his children; this education shall include at least a four-year college curriculum * * * This includes room, board, tuition, books and food”. Finally, the petition, inter alia, charged that the appellant "failed to obey said order in that: [appellant] refused to make *717the down-payment for college for Stacey [his daughter] at Lake Erie College, Painesville, Ohio.” The appellant’s counsel noted in open court that the charges had not been previously served upon his client or himself, which was conceded by counsel for the petitioner (appellant’s wife). Nevertheless, appellant unequivocally agreed not to object to proceeding and consented that the hearing commence by the taking of testimony from his daughter Stacey. It was agreed by counsel that the appellant "is not claiming he can not afford to take care of those expenses, but that he does not wish to.” During the cross-examination of Stacey, appellant’s counsel stated his position as not raising any issue of financial ability and admitted the requirement to pay for college, but contended that the issue was "whether [it is] reasonable for a man to pay for daughter who has chosen not to be a part of his life for some 6 or 7 years.” Through his questioning of Stacey, it was established that she had not wanted to communicate directly with her father for a long time and that she had refused to respond to his letters in regard to her college plans. The record establishes that counsel fully presented the insubordination and acute dislike of the daughter in regard to her relationship with appellant. Indeed, the appellant, through his counsel, introduced in evidence several letters or messages from appellant to his daughter expressing concern as to her future college education. The issue in the present case was one of law as to the interpretation of the prior order of the court incorporating a provision of the separation agreement requiring appellant to provide a college education for his children. He accepted service of the petition on August 25, 1978 and withdrew or waived any objection he had to immediately commencing a hearing. It is obvious that his daughter’s dislike for him is no defense to his pecuniary obligation and he admittedly could afford the expense. That the appellant consented to the court immediately determining liability without any further testimony is demonstrated by the unobjected to observations of the Family Court Judge in colloquy with counsel immediately after the testimony of Stacey. The court stated that on August 25, 1978 it was proceeding to determine liability for tuition and, in the context of all remarks, demonstrated unequivocally that any further hearings were for the purpose of other issues raised in the petition served on August 25, 1978. Finally, it must be noted that the record contains an answer to the petition served on or about October 5, 1978, after the decision of the Family Court, which admits the prior order of support and the obligation to provide a college education as described in the petition and raises as a sole defense the disrespect of appellant’s daughter. The contention that a hearing was not held and/or that appellant has been denied due process has no support in the record. Order affirmed, with costs. Greenblott, Main and Herlihy, JJ., concur.

Document Info

Citation Numbers: 73 A.D.2d 716

Judges: Mahoney, Mikoll

Filed Date: 12/6/1979

Precedential Status: Precedential

Modified Date: 1/12/2022