Buehler v. Buehler

¶1dissent and vote to reverse in the following memorandum by Mahoney, P. J. Mahoney, P. J. (dissenting). We dissent. When appellant appeared in Family Court on August 25, 1978, he accepted service of two petitions. One petition sought modification of a prior support order, dated June 7, 1976, while the other alleged that appellant had violated said order by failing to make the down payment for his daughter Stacey’s college education. Appellant’s attorney, aware of the fact that Stacey would be leaving for college in the middle of September and not wanting to inconvenience her by requiring her return at a later date, consented to the taking of her testimony on August 25, 1978. Attorneys for both parties then entered into a discussion with the court which revealed their understanding that appellant would be allowed to put in his proof concerning the violation petition at a subsequent hearing. Since Stacey’s *718testimony was only relevant to the violation petition, the parties also intended that a full hearing on the modification petition would be held at a later date. The majority’s opinion is anchored to the conclusion that appellant waived his right to a future hearing on the violation petition when, at the conclusion of his daughter’s testimony, he failed to object to the court’s pronouncement that it would decide appellant’s liability on the present record and, further, that if appellant was dissatisfied with the result, his only avenue of possible relief was by way of appeal. Without discussing the chilling effect of such a pronouncement, which was completely at variance with the agreement reached by all parties and the court before the hearing, would have on appellant’s attorney’s sense of propriety in registering an objection, it is our view that such a "waiver”, if, indeed, it was such, does not preclude our consideration of the correctness of the court’s ruling that appellant would not be afforded an opportunity to be heard. Statutorily (Family Ct Act, §§ 433, 454), all respondents in Family Court matters are entitled to be heard, and while such a right may be waived, the critical importance of such a protected right should never be deemed to have been voluntarily released in equivocal circumstances, such as those present here. Next, we are unsure that the majority opinion is founded on the sole conclusion that appellant waived his right to present evidence at a future hearing. It appears that the majority is satisfied that even if such a hearing were held in the future, the appellant would be unable to produce any probative evidence beyond that elicited in cross-examination at the aborted hearing. This, we cannot agree with. Given the fact that the very instrument upon which appellant’s liability is predicated (the separation agreement) is not even in the record, it is difficult to presume to know what, if any, extenuating or mitigating conditions might be contained in that document. Certainly, an appellate tribunal should review such an instrument before it concludes that the decision below imposing liability is correct. We would, therefore, reverse the order directing appellant to pay for his daughter’s college education and remit the matter to Family Court for a full hearing.