BARTHOLOMAY v. BARTHOLOMAY (2004)

Family Court granted petitioner's objections to the order of the Hearing Examiner which denied his petition to terminate his child support obligation.   In its order, Family Court terminated petitioner's child support obligation, directed respondent to return to petitioner any overpayments of support in a payment schedule to be determined by the Hearing Examiner and remanded the case to the Hearing Examiner for a determination of respondent's ability to pay support.   Respondent's assigned counsel has moved to be relieved of the assignment and has submitted a brief in which he concludes that there are no nonfrivolous issues meriting this Court's consideration. The record reveals that respondent's counsel has a conflict of interest which requires the assignment of new appellate counsel.   Further, “[t]here is a ‘strong public policy against restitution or recoupment of support overpayments' ” (Niewiadomski v. Dower, 286 A.D.2d 948, 731 N.Y.S.2d 420).   The issue of the propriety of Family Court's determination regarding recoupment was not addressed in the brief of respondent's counsel and represents a nonfrivolous issue for appeal.   Accordingly, we relieve counsel of his assignment and assign new counsel to brief that issue as well as any other issues that counsel's review of the record may disclose.

Counsel's motion to be relieved of assignment granted.  (Appeal from Order of Family Court, Oneida County, Frank S. Cook, J.-Child Support).

MEMORANDUM: