JILL v. STEVEN (2007)

Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about December 29, 2006, which denied petitioner's objection to a Magistrate's decision granting respondent's motion to dismiss the child support petition for lack of personal jurisdiction under the Uniform Interstate Family Support Act (UIFSA), unanimously affirmed, without costs.

 Under UIFSA, Family Court may exercise personal jurisdiction over a nonresident respondent if “the child resides in [New York] as a result of the acts or directives of the individual” (Family Ct. Act § 580-201[5] ).   The determination that petitioner failed to establish by a preponderance of credible evidence a pattern of abuse or harassment by respondent resulting in the child's relocation to New York, so as to exercise personal jurisdiction under the statute, is supported by the record (see e.g. Sneed v. Sneed, 164 Ohio App.3d 496, 842 N.E.2d 1095 [2005];  McNabb ex rel. Foshee v. McNabb, 31 Kan.App.2d 398, 65 P.3d 1068 [2003];  Windsor v. Windsor, 45 Mass.App.Ct. 650, 700 N.E.2d 838 [1998] ), and there is no basis to disturb the Support Magistrate's credibility assessments (see Matter of Drago v. Drago, 138 A.D.2d 704, 526 N.Y.S.2d 518 [1988] ).

 The Magistrate appropriately exercised his discretion in precluding petitioner's expert witness, inasmuch as the proposed testimony was irrelevant and not based on facts in evidence (see Santoni v. Bertelsmann Prop., Inc., 21 A.D.3d 712, 714-715, 800 N.Y.S.2d 676 [2005] ).   Although the expert proposed to testify regarding the circumstances under which the child had left respondent's home in Ohio, she admitted that she had not re-evaluated the child since the parties' divorce proceeding three years earlier.   Her proposed testimony was irrelevant to the issue of whether respondent's conduct sufficiently warranted the exercise of personal jurisdiction over him in the instant proceeding.   Indeed, the issue of whether respondent's conduct caused the child to flee Ohio was a question of fact, to which the child herself testified, and did not require an expert opinion.   Moreover, the expert's opinion regarding the child's physical and mental condition post-2002 was hearsay, based on documents that were not admitted into evidence at the hearing (see id.), and was thus inadmissible.

The Magistrate's denial of recusal was a proper exercise of discretion (see Yannitelli v. Yannitelli & Sons Constr. Corp., 247 A.D.2d 271, 668 N.Y.S.2d 613 [1998], lv. denied 92 N.Y.2d 875, 677 N.Y.S.2d 777, 700 N.E.2d 317 [1998] ).