Matter of Chilson v Chilson

[*1] Matter of Chilson v Chilson 2009 NY Slip Op 50360(U) [22 Misc 3d 1129(A)] Decided on March 4, 2009 Family Court, Yates County Falvey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 4, 2009
Family Court, Yates County

In the Matter of a Proceeding for Support under Article 4 of the Family Court Act, Ronald Chilson, Petitioner,

against

Carlene Chilson, Respondent.



F-104-00/08U



APPEARANCES:Ronald Chilson, Petitioner, pro se

Valerie G. Gardner, Esq.,

Attorney for Respondent.

W. Patrick Falvey, J.

The father objects to the Decision and Order of the Support Magistrate entered February 3, 2009, in this modification of support proceeding, wherein the Support Magistrate denied the father's request for a downward modification of the prior support order dated October 29, 2007.

In two prior proceedings, heard in October, 2006, and October, 2007 the father had also sought a downward modification, which petitions were both denied. In his objections, petitioner essentially argues that the Support Magistrate erred in failing to credit the testimony of his treating physician who testified that the petitioner is unable to work due to a total permanent disability. He notes that while his doctor is not a medical doctor, she is a Doctor of Osteopathy, and licensed by the State of New York to practice medicine in New York. Thus, the Support Magistrate erred in discounting her testimony. He argues that it was appropriate for the doctor to rely on the reports of the radiologist who read his x-ray and MRI films, in making her diagnosis of his condition, and in making her recommendation that he not work in any capacity, at any time.

Along with his objections presented to the Court, the father has provided papers consisting of certain documents and the results of internet research. The Court may not now consider any evidence that was not presented at the hearing on the matter in reviewing objections, and so these documents are not considered herein. [*2]

The mother's response to the objections argue that the petitioner failed to meet his burden of proof, and great deference should be given to the Support Magistrate's decision, since she is in the best position to assess the credibility of witnesses and the evidence proffered. The mother asserts that petitioner's physician, Dr. Wheeler, was unable to support her statements with any competent level of scientific or medical basis during her testimony, and the Support Magistrate was not bound to accept her opinion that the petitioner was disabled, citing Pringle v Pringle, 296 AD2d 828, 4th Dept. 2002.

This Court has reviewed the audio recording of the proceedings held on January 20, 2009, and the exhibits submitted at that hearing. While Dr. Wheeler offered competent, credible testimony of her credentials as a physician, her testimony concerning the petitioner's condition was, as the Support Magistrate found, vague, and unsupported. Here, the doctor did not appear to have brought the petitioner's file with her to the hearing, she was unable to recall how many times she had seen the petitioner, what drugs she had prescribed, and the specifics of any other treatment she had prescribed. While she testified that, along with petitioner's reports of pain and her examinations of him, during which she detected signs of muscle spasm, she relied on the reports of the radiologist in determining the petitioner's diagnosis, petitioner failed to establish the "professional reliability" basis for admission of an expert's opinion into evidence.

"An expert witness may testify that he or she relied upon specific, inadmissible out-of-court material to formulate an opinion provided (1) it is of a kind accepted in the profession as reliable as a basis for forming a professional opinion and (2) there is evidence presented establishing the reliability of the out-of-court material referred to by the witness (see Hambsch v New York City Tr. Auth., 63 NY2d 723)." Wagman v Bradshaw, 292 AD2d 84, 85. "(T)he 'professional reliability' exception does not permit an expert witness to offer opinion testimony based upon out-of-court material, for the truth of the matter asserted in the out-of-court material..." Id. At 89.

To qualify for the "professional reliability" exception, "there must be evidence establishing the reliability of the out-of-court material." Hambsch v New York City Tr. Authority, 63 NY2d 723,726, as quoted in Wagman v Bradshaw, 292 AD2d 84, at 89. Here, petitioner did not offer proof that Dr. Wheeler ordered the MRI and x-ray, or that she ever saw the MRI or x-ray films (although she did testify that she was not qualified to read the films). She did not name the radiologist that prepared the MRI and x-ray report, nor testify as to when and under what circumstances the radiologist prepared these reports. There was no proof that the reports offered a detailed interpretation of the several images displayed in the MRI films and x-rays, or whether the reports merely stated conclusions as to the condition purportedly revealed by the films. The proof did not establish if the reports formed the basis of Dr. Wheeler's diagnosis, or merely contributed to such diagnosis. See O'Brien v Mbugua, 49 AD3d 937.

The trier of fact is not bound to accept the opinion of an expert even if uncontradicted. Prince, Richardson on Evidence, 11th Edition, section 7-305; Pringle v Pringle, 296 AD2d 828. Thus, here, based on the proof presented at the hearing, the Support Magistrate properly discounted the testimony of Dr. Wheeler.

There being a failure of proof at the hearing, supporting a downward modification of child support, the Court concludes that the decision and order of the Support Magistrate must be, and is, therefore, affirmed. The Objections are denied. [*3]

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

DATED: March 4, 2009

s/_______________________________

W. Patrick Falvey

Yates County Family Court Judge