Appeal from an
The parties were divorced by judgment dated October 20, 1997. That judgment incorporated, without merger, a stipulation of the parties which included a provision that defendant pay maintenance in the amount of $200 per week. Based upon defendant’s alleged default in 2000, plaintiff moved by order to show cause in February 2001 to, among other things, enforce the maintenance provision. Defendant cross-moved to terminate that obligation. Following a hearing, Supreme Court awarded judgment to plaintiff in the. amount of $3,200 for maintenance arrears. Additionally, the court awarded counsel fees and disbursements to plaintiffs attorney totaling $7,601.80.
Defendant argues that he was deprived of an impartial hearing because of undisclosed animosity between Supreme Court and his attorney. That claim is premised upon dicta in the court’s decision critical of counsel’s conduct in obtaining an adjournment of the date set for a continuation of the hearing. We note that Supreme Court exhibited no bias during the hearing even after the adjournment issue arose. Significantly, plaintiffs evidence established defendant’s default in paying maintenance and adequately rebutted defendant’s defense that she violated the provision of the parties’ stipulation which triggered the cessation of maintenance for her failure “to exercise any access to [the] children for 45 continuous days.” Even if we were to assume the existence of the claimed animosity as opposed to an expression of frustration due to the delays in this protracted case, and even if we assume that defendant’s counsel was not given an adequate opportunity to explain the circumstances of the requested adjournment, the record fails to demonstrate that the outcome of the hearing was affected in any way by these concerns. Therefore, we find that defendant was not deprived of an impartial hearing.
Next, as noted above, defendant’s proof was insufficient to establish plaintiffs failure to exercise access to one or more of the children for a continuous 45-day period. Therefore, Supreme Court correctly determined that defendant’s maintenance obligation did not terminate. We find that plaintiff fulfilled the provision of the stipulation which required her to “exercise * * * access to her children” (emphasis added) by coming from the Boston area to Rensselaer County on her scheduled weekends to be with any of the parties’ children who were available and willing to participate in a visit.
We have considered defendant’s remaining contentions and find them lacking in merit.
Mercure, Spain, Rose and Kane, JJ., concur. Ordered that the order is affirmed, without costs.