Matter of Frumusa v Frumusa
Annotate this CaseDecided on April 2, 2018
Family Court, Wayne County
In the Matter of a Support Proceeding, Valoree A. Frumusa, Petitioner,
against
Lawrence Frumusa, Respondent.
F-1421-17/17A
Valoree A. Frumusa, pro se, Lawrence Frumusa by Legal Assistance of Western New York, A. Jane Grimes Chambers, of Counsel
Richard M. Healy, J.
On July 5, 2017, Petitioner filed with the Court a Petition for violation of a previous Order of Monroe County Family Court, Michael Rao, Support Magistrate, dated October 7, 2011, with an appearance date noted as May 18, 2011. A hearing was held on January 16, 2018, with the Petitioner appearing pro se and the Respondent appearing with his assigned counsel, Legal Assistance of Western New York.
Findings of Fact and Order were issued by the Support Magistrate on February 1, 2018 Respondent filed his Objections on March 7, 2018. No rebuttal has been received by this Court.
Respondent objects to the Findings of Fact and Order establishing the amount of a judgement against the Respondent, stating that the Violation Petition did not establish that there was any Order for child support or spousal support dated May 18, 2011. This Court notes that the Petitioner, appearing pro se, set forth in her Violation Petition a date that was the actual appearance date, not the date that Support Magistrate entered his Order, that being October 7, 2011. This does not negate the violation Petition, as she testified to the terms as set forth in the October 7, 2011 Order at the violation hearing.
Respondent objects to the Support Magistrate's finding of a willful violation against the Respondent, that it was in error due to the credible evidence presented by the Respondent that he was unable to make the support payments. The Magistrate determined that the Respondent had only paid $38.00 towards the child support judgment and spousal support Order that was entered in 2011. She found the Respondent to be totally lacking in credibility, and unable to explain why [*2]no other payments had been made in 7 years. It is well settled that the " Family Court's determination is entitled to great deference from this Court as had the advantage of hearing
the witnesses and weighing their credibility and will only be set aside if it lacks a sound and substantial basis in the record" (Nicotera v. Nicotera, 222 AD2d 892, 893, 635 N.Y.S.2d 739), Barndollar v. Barndollar, 234 AD2d 858, 859(3rd Dept 1996).
This Court will not substitute it's judgment on the credibility of the witness or the weight of the evidence.
The Respondent's last objection is that the Petitioner failed to list any maintenance due or any interested credited on the prior 2011 Judgement of $189,941.00, on a bankruptcy that she filed in 2014. As such it is the Respondent's apparent position that such maintenance and interest has been forfeited by the Petitioner. It is this Court's understanding that support and maintenance obligations can not be discharged in bankruptcy, therefore the Petitioner exclusion, does not now benefit the Respondent, however this Court will leave such issues to the Federal Courts, and will not modify the Respondent's obligation to pay such amounts.
This Court will note one error in the Magistrates Findings of Fact. Her calculations establish the Respondent's spousal support obligation from May 18, 2011 through January 16, 2018. The Order of Support Magistrate Rao of October 7, 2011, commences the spousal support obligation as of June 1, 2011, therefore the Respondent is entitled to a credit from May 18, 2011 through June 1, 2011, or $1,845.16. The Order and Money Judgement Order are therefore modified to the sum of $350,501.84, as of January 16, 2018. All other terms are hereby affirmed.
This shall constitute the Decision and Order of the Court.
Dated: April 2, 2018
___________________________
Hon. Richard M. Healy
Family Court Judge
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