Summary
In Liebling, the Second Department allowed a two-year toll under § 207 for the period in which the defendant, the plaintiff's husband, had absconded to Costa Rica with the couple's child and lived there secretly, in violation of the court's custody order.
Summary of this case from Plitman v. LeibowitzOpinion
January 23, 1989
Appeal from the Supreme Court, Nassau County (Levitt, J.).
Ordered that the judgment is affirmed insofar as appealed from, with costs.
Upon our review of the record, we agree with the court's determination that the wife was entitled to an award for the period from October 28, 1978, up to the date of the hearing of the application for leave to enter a judgment for arrears of child support in March 1987. While the wife's application was governed by a six-year Statute of Limitations (Welch v Welch, 130 A.D.2d 656), she was entitled to an extension for a period of over two years during which the husband was absent from the State and jurisdiction could not be acquired, thereby tolling the statute (see, CPLR 207).
The defense of waiver which the husband now raises on appeal was not advanced before the hearing court and is thus not preserved for appellate review (see, Matter of Schwartz v Cuomo, 111 A.D.2d 759, appeal dismissed 66 N.Y.2d 758, lv denied 67 N.Y.2d 605). In any event, we find it to be without merit. While it is true that the wife's claim was asserted seven years after entry of the divorce judgment and more than four years after the husband's return to the United States, this fact alone does not compel a finding of waiver as a matter of law (see, Maule v Kaufman, 33 N.Y.2d 58, 62, rearg denied 33 N.Y.2d 940; Lannon v Lannon, 124 A.D.2d 1051). The circumstances of the present application, including the extensive efforts and expenses incurred by the wife in locating the husband and regaining lawful custody of the parties' child, fail to demonstrate any intent on the part of the wife to relinquish her right to receive support on behalf of the child (see, Friedman v Exel, 116 A.D.2d 433; cf., Petritis v Petritis, 131 A.D.2d 651).
We further agree with the Supreme Court that it would be ludicrous to allow a credit to the husband by deducting from his arrears those child support payments which became due during the period in which he lived with the child secretly in Costa Rica in violation of the court's custody order. Such a credit would reward the husband for his unlawful conduct during a period when the wife was engaged in expensive efforts to locate the child and enforce the mandate of the court.
Finally, we condemn the inclusion by the husband of documents in the appendix which are not properly part of the record of appeal (see, Ro-Stan Equities v Schechter, 44 A.D.2d 577; Terner v Terner, 44 A.D.2d 702), as well as his failure to settle the transcript in accordance with the rules of this court (see, 22 NYCRR 699.10). Bracken, J.P., Rubin, Sullivan and Harwood, JJ., concur.