IN RE: MARK D. COLEMAN

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: MARK D. COLEMAN, PETITIONER–APPELLANT, v. MAUREEN M. MURPHY, RESPONDENT–RESPONDENT.

CAF 11–01094

Decided: November 18, 2011

PRESENT:  SCUDDER, P.J., SMITH, CENTRA, GREEN, AND GORSKI, JJ. BUCCI LAW FIRM, PLLC, BALDWINSVILLE (ROSEMARY E. BUCCI OF COUNSEL), FOR PETITIONER–APPELLANT. JOHN M. MURPHY, JR., PHOENIX, FOR RESPONDENT–RESPONDENT.

MEMORANDUM AND ORDER

LISA M. FAHEY, ATTORNEY FOR THE CHILD, EAST SYRACUSE, FOR CASEY M.C.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated, and the matter is remitted to Family Court, Onondaga County, for further proceedings in accordance with the following Memorandum:  Petitioner father commenced this proceeding pursuant to Family Court Act article 4 seeking to terminate his support obligation for the parties' son on the grounds that respondent mother had frustrated the father's visitation rights and that his son had abandoned him.   The father appeals from an order dismissing his petition without prejudice “for lack of proper cause of action for filing.”   We agree with the father that the Referee erred in dismissing the petition without conducting a hearing.   Indeed, the Referee was required to “conduct a hearing on [the] petition to modify a support order where the petition [was] ‘supported by affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested.’   Here, [the father] established a prima facie case for the relief requested with respect to child support by submitting evidentiary material establishing that his [son] had abandoned him.   His submissions in support of the petition established that his repeated attempts at communication with his [son] had been refused and that [he] had expressed a clear wish to ‘have nothing to do with’ “ the father (Matter of Garcia v. Barie, 59 AD3d 1090;  see Matter of Saunders v. Aiello, 59 AD3d 1090, 1091;  cf.  Matter of Hootnick v. Cohen, 193 A.D.2d 1092).   In addition, the petition alleged that the mother had refused to permit the father to exercise his visitation rights, and “a custodial parent's ‘deliberate frustration’ of visitation rights can, under appropriate circumstances, warrant the suspension of future child support payments” (Hiross v. Hiross, 224 A.D.2d 662, 663).   Consequently, we reverse the order, reinstate the petition, and remit the matter to Family Court for further proceedings thereon.

Patricia L. Morgan

Clerk of the Court