Matter of Monroe County Support Collection Unit v Steven White

Matter of Monroe County Support Collection Unit (McCutchen) v White 2003 NY Slip Op 20151 [2 AD3d 1344] December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

In the Matter of Monroe County Support Collection Unit, on Behalf of Shatrina McCutchen, Appellant,
v
Steven White, Respondent.

—

Appeal from an order of Family Court, Monroe County (Kohout, J.), entered April 30, 2002, which denied petitioner's written objections to the order of the Hearing Examiner dismissing a violation petition.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner, Monroe County Support Collection Unit (SCU), appeals from an order of Family Court denying its written objections to the Hearing Examiner's order, which dismissed without prejudice a violation petition filed by SCU against respondent upon the request of Shatrina McCutchen (mother). By its petition, SCU sought to enforce an order payable through it for support of a child not receiving aid to dependent children. The Hearing Examiner directed SCU to join the mother as a party, and he adjourned the matter for personal service. Although the mother was served, she failed to appear on the adjourned date. The Hearing Examiner dismissed the petition based on his determination that SCU was not a party in interest to the violation proceeding and therefore lacked standing to prosecute the proceeding. In its written objections to the Hearing Examiner's order, SCU asserted that it was authorized both to initiate and prosecute the proceeding based on its role in assisting in the collection of child support orders.

We agree with SCU that, pursuant to Family Ct Act § 453 (a), it had the authority to originate the violation proceeding against respondent. However, we agree with the Hearing Examiner and the court that, because the child was not receiving aid to dependent children, SCU lacked the authority to "prosecute" that violation proceeding unless the mother executed a "Right to Recovery" agreement permitting SCU to recover its costs (see 18 NYCRR 347.17 [b]). There is no evidence that the mother executed such an agreement. We therefore affirm the order denying SCU's objections to the Hearing Examiner's order. Present—Pine, J.P., Wisner, Kehoe, Gorski and Lawton, JJ.