        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

273
CAF 14-00484
PRESENT: WHALEN, P.J., CENTRA, CARNI, DEJOSEPH, AND TROUTMAN, JJ.


IN THE MATTER OF SUSAN RICHARDS,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WINDSOR C. RICHARDS, RESPONDENT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT.


     Appeal from an order of the Family Court, Oneida County (James R.
Griffith, J.), entered November 21, 2012 in a proceeding pursuant to
Family Court Act article 4. The order denied respondent’s objections
to an order of the Support Magistrate.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent father appeals from an order denying his
written objections to the order of the Support Magistrate finding him
in willful violation of a child support order. Preliminarily,
contrary to the father’s contention, the gaps in the hearing
transcript attributable to inaudible portions of the audio recording
are not so significant as to preclude appellate review (see Matter of
Van Court v Wadsworth, 122 AD3d 1339, 1340, lv denied 24 NY3d 916).
Contrary to the father’s further contention, petitioner mother was not
required to provide a written record detailing the missed child
support payments, and her unequivocal testimony that the father failed
to pay any child support from October 1995 to December 2004 is
sufficient (cf. Matter of Cox v Cox, 181 AD2d 201, 204-205). The
father, on the other hand, testified that he paid child support by
check during the time period in question, but he failed to submit any
documentary evidence in support of that assertion. In light of the
Support Magistrate’s superior position to assess the credibility of
the witnesses (see DeNoto v DeNoto, 96 AD3d 1646, 1648), we see no
reason to disturb the determination that the father willfully violated
the child support order.

     Finally, to the extent that the father contends that the mother
waived her right to future child support payments by accepting from
him certain items and benefits, including property tax payments, his
contentions to that effect are not properly before us because he
failed to raise them in his written objections to the Support
Magistrate’s order (see Matter of Farruggia v Farruggia, 125 AD3d
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                                                         CAF 14-00484

1490, 1490; Matter of Porter v D’Adamo, 113 AD3d 908, 909-910).




Entered:   March 25, 2016                      Frances E. Cafarell
                                               Clerk of the Court
