A New York Family Lawyer said that before the Court in this child support proceeding is Respondent’s motion to dismiss the petition, pursuant to Rule 3211(a)(5) of the C.P.L.R., on the ground of res judicata in that Petitioner’s application for the relief she seeks herein was previously denied by the Supreme Court of Bronx County. The undisputed facts and circumstances surrounding this motion are as follows: On March 2, 1979, a judgment granting Petitioner a divorce from Respondent was entered in Supreme Court, Bronx County. The judgment, which contained no provision for child support, expressly stated that “Family Court is awarded concurrent jurisdiction herein.” Thereafter, in the latter part of 1979, Petitioner brought a proceeding in Supreme Court to modify the judgment so as to include child support payments for the parties’ adopted daughter, and their son. Over the objections of Petitioner’s counsel, the Court by order dated February 19, 1980, referred the matter to a Special Referee to inquire and report with respect to the issues of Respondent’s financial status and ability to pay, the needs of the parties, and visitation.
A New York Child Custody Lawyer said that, a hearing before the Special Referee was held on April 24th and April 25th, 1980, and in the course of that hearing, Petitioner’s counsel called Respondent as a witness. In addition, Petitioner herself testified, but following her refusal to answer proper and pertinent questions on cross examination, the Special Referee granted Respondent’s application to strike Petitioner’s testimony. On June 30, 1980, the Special Referee submitted his report to the Supreme Court, Bronx County. Included in the Referee’s report was his recommendation that the petition be dismissed. Thereafter, on August 26th, 1980, the Supreme Court, over Petitioner’s objection, found “that the findings of fact and conclusions of law set forth in the Referee’s report accord with the preponderance of evidence adduced at the hearing held before him, and that no issues remain to be tried,” and granted Respondent’s motion for an order confirming the Special Referee’s report, and dismissing the petition to modify the judgment of divorce so as to include child support payments and visitation. A judgment dismissing the petition was also entered on August 26, 1980, and from that judgment, no appeal was taken by Petitioner.
A Long Island Family Lawyer said that, on July 11, 1980, Respondent herein filed a petition in this Court seeking an order of visitation with respect to the parties’ son. In connection with that petition, on October 24, 1980, the Court, on consent and without prejudice, made a temporary order of child support of $20.00 per week, payable by Respondent herein. Thereafter, the parties reached an agreement in the visitation proceeding and a final order with respect to visitation was entered by the undersigned on January 9, 1981. In addition, on that day, Petitioner filed the instant petition for child support. The support petition included no mention of the Supreme Court proceedings that were dismissed in August, 1980, and contained no allegations of any material change in circumstances subsequent to the dismissal of those proceedings. However, in Petitioner’s attorney’s affirmation in opposition to Respondent’s motion to dismiss, the following statement appears: “The circumstances of the parties have changed in that the Respondent has not made any child support payment since February 19th, 1979, until October 31, 1980, when he made his first child support payment in the sum of $20.00.”