Matter of B.R. v R.R.

[*1] Matter of B.R. v R.R. 2009 NY Slip Op 51871(U) [24 Misc 3d 1244(A)] Decided on August 31, 2009 Family Court, Westchester County Duffy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 31, 2009
Family Court, Westchester County

In the Matter of a Proceeding under Article 4 of the Family Court Act B.R., Petitioner,

against

R.R., Respondent.



1444-06/07C



Stephen J. Jones, Esq.

Attorney for Petitioner

Jones Garneau, LLP

670 White Plains Road

Scarsdale, New York 10583

Donald Campbell, Esq.

Attorney for Respondent

Danzig Fishman & Decea

One North Broadway

Suite 1202

White Plains, New York 10601

Colleen Duffy, J.

These parties, Petitioner B. R. ("Petitioner") and Respondent R. R. ("Respondent"), have had numerous matters before this Court - both custody and child support over the [*2]last few years. Currently before this Court are numerous inter-related objections filed by Respondent to several Decisions and Orders issued by the Support Magistrate in connection with child support matters. Due to the inter-related nature of the objections, this Decision and Order addresses all of the objections arising out of the Decisions and Orders issued by the Support Magistrate in connection with these parties since 2007.

Chronology of Proceedings

On July 14, 2004, the parties had executed a separation/property settlement agreement ("Agreement") which was incorporated, but not merged, into their Judgment of Divorce, dated November 23, 2004. Pursuant to the Agreement, the parties agreed to deviate from the Child Support Standards Act ("CSSA") guidelines and established child support payable by Respondent in the amount of $4,400.00 per month for the benefit of the four minor children: J. R. (D/O/B 10/21/88); D. R. (D/O/B 6/14/90); M. R. (D/O/B 9/28/90); C. R. (D/O/B 6/30/94) (hereinafter, the "Subject Children").

The Agreement also required Respondent to pay $1000.00 per month maintenance to Petitioner until the earliest of one of three events occurred: (1) expiration of the payment period of August 1, 2004 to July 31, 2008; or (2) the death of either party; or (3) the remarriage of Petitioner or her continuous co-habitation with an unrelated member of the opposite sex for a period in excess of 90 days.

On October 26, 2006, Petitioner filed a petition against Respondent to enforce the child support and maintenance provisions of the parties' Agreement for the support of the Subject Children. The matter was set for December 1, 2006.

On December 1, 2006, Respondent did not appear and no affidavit of service to Respondent exists for that proceeding. The matter was adjourned to January 11, 2007 for service.

Respondent personally was served with notice of the January 11, 2007 date; however, he failed to appear on that date. The Support Magistrate proceeded to Inquest on that date, and, on February 9, 2007, entered an order of support, to be paid through Support Collections Unit, continuing, effective February 1, 2007: (1) Respondent's child support obligation in the amount of $4,400.00 per month; (2) Respondent's obligation to pay spousal maintenance in the amount of $1,000.00 per month; and (3) Respondent's obligation to pay to Petitioner a $75.00 per month contribution towards the cost of health insurance for the Subject Children (hereinafter the "February 2007 Order").

In the February 2007 Order, the Support Magistrate granted Petitioner a judgment totaling $67,200.00 against Respondent for support arrears representing unpaid spousal maintenance, child support, unreimbursed medical expenses and health [*3]insurance premiums.[FN1] The February 2007 Order also requires Respondent to provide life insurance in the amount of $250,000.00 for the benefit of the Subject Children by February 28, 2007. The February 2007 Order also provides that Petitioner reserves her rights and claims to her share of the parties' 2002 and 2003 tax refunds and an amount not less than $3000.00 from the 2005 tax filing by the parties, or either of them, for a deduction or exemption for the Subject Children.

On March 1, 2007, Respondent filed a petition seeking a downward modification of his support obligations ("First Downward Modification Petition"). The matter was scheduled for April 10, 2007 before the Support Magistrate.

While Respondent's First Downward Modification Petition was pending, Petitioner filed a petition on March 16, 2007 ("2007 Violation Petition"), alleging that Respondent violated the February 2007 Order based on Respondent's continued failure to pay support as directed in the February 2007 Order. The hearing for the 2007 Violation Petition was scheduled for April 10, 2007 - the same date as the hearing on Respondent's First Downward Modification Petition.

At the April 10, 2007 proceeding, Petitioner appeared personally and with counsel. Respondent appeared pro se. Respondent informed the Support Magistrate that he was unprepared to proceed to hearing on his First Downward Modification Petition that day as he did not have any financial information. The court granted an adjournment to Respondent to May 9, 2007. Respondent did, however, represent to the Support Magistrate on April 10 that he was prepared to proceed to hearing on Petitioner's 2007 Violation Petition. However, since Petitioner was requesting a finding of contempt, punishable by incarceration, for a willful violation of the February 2007 Order, the Support Magistrate ruled that counsel would be assigned to represent Respondent and also adjourned the hearing on the 2007 Violation Petition to May 9 for that purpose.

At that April 10 proceeding, Respondent also gave Petitioner a certified bank check in the amount of $4,400.00 which was recorded by Support Collections Unit and credited toward Respondent's outstanding child support obligation.

On May 9, 2007, both parties appeared with counsel. Respondent's counsel acknowledged readiness to proceed on the 2007 Violation Petition but Respondent requested that the hearing be adjourned. Despite Respondent having been represented by counsel who indicated that he was ready to proceed, the Support Magistrate agreed to Respondent's request to adjourn the hearing on the 2007 Violation Petition to May 21, 2007. [*4]

Meanwhile, on May 9, after adjourning the hearing on the 2007 Violation Petition, the Support Magistrate excused Respondent's counsel from the remainder of the proceeding - as the Support Magistrate had not assigned counsel to represent Respondent on any matter other than the 2007 Violation Petition - and asked Respondent, who appeared pro se for his First Downward Modification Petition hearing, if he was ready to proceed.

At that time, Respondent again represented to the Support Magistrate that he did not bring any financial information with him and that he was not prepared to proceed to hearing. On that date, the Support Magistrate dismissed the First Downward Modification Petition.[FN2]

On May 21, 2007, both parties appeared with counsel, for the hearing on the 2007 Violation Petition. On that date, however, Respondent made an oral application to the Support Magistrate to relieve his assigned counsel, William Penny, Esq., as Respondent had retained his own counsel, Donald Campbell, Esq., to represent him. The Support Magistrate granted the request and Respondent's counsel then requested another adjournment of the hearing, which was granted, over objection of Petitioner, by the Support Magistrate to June 1, 2007.

On May 31, 2007, Respondent filed before the Support Magistrate an Order to Show Cause requesting that the Support Magistrate issue a Temporary Restraining Order staying the hearing on the 2007 Violation Petition scheduled for the next day. In that Order to Show Cause, Respondent sought to have the February 2007 Order (that had been issued after Inquest) vacated. The Support Magistrate denied Respondent's application for an immediate stay of the proceeding and scheduled a hearing on the Order to Show Cause for July 9, 2007.[FN3]

On June 1, 2007, parties and counsel appeared before the Support Magistrate, for the hearing on the 2007 Violation Petition. The hearing was not completed and was continued to July 9, 2007 - the same date as the hearing scheduled on the Order to [*5]Show Cause.

On June 8, 2007,Respondent filed another petition for a downward modification of his support obligations ("Second Downward Modification Petition") which also was scheduled for July 9, 2007.

On July 9, 2007, the hearing on the 2007 Violation Petition was completed and the Support Magistrate reserved decision on the matter. In addition, on July 9, with respect to both Respondent's Second Downward Modification Petition and the Order to Show Cause, after hearing oral arguments from counsel for both parties on the Order to Show Cause, the Support Magistrate adjourned the hearings on both of those matters to August 20 and 29, 2007 (in the event the matters were not concluded on August 20, 2007).On July 9, the Support Magistrate also informed Respondent's counsel that he could submit a modified Order, on notice of settlement, which would reduce the arrears awarded in the February 2007 Order from $67,225.00 to $60,225.00. The $7,000.00 reduction in arrears apparently equals the total amount of unreimbursed medical expenses that had been claimed by Petitioner.

After the July 9 proceeding, upon receiving a written request for an adjournment by counsel for Respondent, the Support Magistrate again adjourned the hearings on the Second Downward Modification Petition and the Order to Show Cause to September 19, 2007 to accommodate the schedule of one of Respondent's witnesses.

On August 29, 2007, the Support Magistrate issued a modified Order and Judgment ("Modified 2007 Order")[FN4] reducing the amount of arrears in the February 2007 Order by $7,000.00. The Modified 2007 Order awarded Petitioner arrears of $60,225.00, rather than the $67,225.00, without prejudice to Petitioner's right to seek to obtain the unreimbursed medical expenses in the future. The other terms of the February 2007 Order remained in effect.

On September 19, 2007, the Support Magistrate held the hearing on Respondent's Order to Show Cause to vacate the February 2007 Order. He concluded the hearing on that date and reserved decision. The Support Magistrate again adjourned the hearing on the Second Downward Modification Petition pending the issuance of his decisions on the 2007 Violation Petition and the Order to Show Cause.

On October 1, 2007, the Support Magistrate issued an Order of Disposition (1) finding that Respondent violated the February 2007 Order, that such violation was willful, and (2) granting Petitioner a money judgment of $21,600.00, plus interest, for the accrued support arrears from February 1 through May 31, 2007. See Order of Disposition, dated October 1, 2007.[FN5] Specifically, the Order of Disposition states that [*6]Respondent's failure to provide life insurance by February 28, 2007 was willful.[FN6] Id.

Notably, although the October 1, 2007 Order of Disposition indicates that Respondent's violation of the February 2007 Order was willful, the Support Magistrate's October 1, 2007 Findings of Fact expressly state that "[Respondent] non-willfully failed to obey the order . . ." Moreover, in the October 1 Findings of Fact, the Support Magistrate articulates no findings whatsoever about Respondent's failure to obtain life insurance.

On October 1, 2007, the Court sent notice to counsel and the parties that the hearing on the Second Downward Modification Petition was scheduled for October 26, 2007.

By Order of Dismissal, entered October 9, 2007, the Support Magistrate dismissed Respondent's Order to Show Cause for failure to state a cause of action (hereinafter the "October 2007 Order of Dismissal of OTSC").

On October 26, 2007, the Support Magistrate held a hearing on the Second Downward Modification Petition. Both parties appeared and were represented by counsel. The Support Magistrate concluded the hearing that day and reserved decision.

While the Support Magistrate's decision on Respondent's Second Downward Modification Petition was sub judice, on December 20, 2007, Petitioner filed a notice of motion for counsel fees, which was scheduled to be heard by the Support Magistrate on January 24, 2008. Respondent submitted an opposing affidavit by counseland memorandum of law on January 22, 2008, just two days prior to the scheduled return date on the motion. No leave of court was sought by Respondent to extend his time to oppose the motion and the Support Magistrate did not consider the opposition papers submitted by Respondent.[FN7]

By Order of Dismissal, entered January 23, 2008 (hereinafter the "January 2008 Order of Dismissal"), the Support Magistrate dismissed the Second Downward Modification Petition on the grounds that Respondent failed to state a cause of action.[FN8] [*7]

On January 24, 2008, the return date for Petitioner's motion for counsel fees, Petitioner appeared with counsel. Neither Respondent nor his counsel appeared. The Support Magistrate heard oral argument on the motion by Petitioner's counsel and reserved decision.

By Order on Motion, entered November 19, 2008, the Support Magistrate granted Petitioner's motion for counsel fees and awarded Petitioner counsel fees and costs in the amount of $39,274.09 payable by Respondent ("Attorney's Fees Order").

Respondent's Objections

On November 9, 2007, Respondent filed with this Court an objection to the Support Magistrate's October 2007 Order of Dismissal of the Order to Show Cause ("Respondent's Objection to OTSC Dismissal").

On February 27, 2008, Respondent filed with this Court an objection to the Support Magistrate's Order of Dismissal of the Second Downward Modification Petition ("Respondent's Second Downward Modification Objection").

On January 16, 2009, Respondent filed with this Court an objection to the Counsel Fees Order ("Respondent's Counsel Fees Objection"). [FN9]

For the reasons set forth in this Decision and Order, the Court grants Respondent's Objection to the OTSC Dismissal, denies Respondent's Second Downward Modification Objection except to the extent set forth herein and grants Respondent's Counsel Fees Objection and remands the matters to the Support Magistrate for further proceedings consistent with this Decision and Order.

Statement of Law

Family Court Act section 439(a) empowers Support Magistrates "to hear, determine and grant any relief within the powers of the Court" in proceedings properly before them. FCA section 439(e) provides that the Support Magistrate's determination "shall include Findings of Fact and a final order." The parties are permitted by the [*8]statute to submit "specific written objections" to the order for "review" by a Family Court judge. This review of the Support Magistrate's order is essentially equivalent to an appellate review of such an order. Matter of Green v. Wron, 151 Misc 2d 9, 571 NYS2d 193 (Fam. Ct. NY Cnty. 1991). The scope of that review, however, is narrow, confined to whether the Support Magistrate, as the trier of fact, has made the necessary findings of fact and an order and whether, upon review of the record, the findings of fact present a reasonable basis for that order. The Support Magistrate is granted broad discretion in weighing the relative financial positions of the parties and evaluating testimony and, therefore, his or her findings are entitled to great deference. Creem v. Creem, 121 AD2d 676, 504 NYS2d 444 (2d Dep't 1986). The determination of the Support Magistrate should not be disturbed on appeal unless no fair interpretation of the evidence can support the findings. Stone v. Stone, 236 AD2d 615, 652 NYS2d 824 (2d Dep't 1997); Reed v. Reed, 240 AD2d 951, 659 NYS2d 334 (3rd Dep't 1997).

Respondent's Objection to the OTSC Dismissal

As an initial matter, this Court notes that Respondent improperly filed his motion before the Support Magistrate as an order to show cause seeking to stay the 2007 Violation Petition hearing and to vacate the February 2007 Order. See Dep't of Social Services on Behalf of Gary Z. v. Burton H., 151 Misc 2d 400, 572 NYS2d 839 (Support Magistrate . . . may not sign an order to show cause and may only exercise jurisdiction specifically granted by statute); Family Court Act § 439 ("support magistrate shall have the authority to hear and decide motions [emphasis added] . . ."). Respondent's appropriate remedy would have been to file a motion to vacate the default pursuant to CPLR 5015(a)(1). See TO v. JS, 19 Misc 3d 1108A, 859 NYS2d 907 (party seeking to challenge order entered on default must file motion [emphasis added] before the Support Magistrate). Nonetheless, the Court notes that, in effect, the order to show cause was heard by the Support Magistrate as a motion to vacate and he held a hearing on the record on September 19, 2007 and dismissed the OTSC on October 9, 2007.

With respect to Respondent's Objection to the OTSC Dismissal, the Court finds that the Support Magistrate erred in denying Respondent's application to have the February 2007 Order, entered on default, vacated. A party seeking to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense or claim. Rolston v. Rolston, 261 AD2d 377, 689 NYS2d 226 (2d Dep't 1999).Although the determination as to whether the party has established a reasonable excuse for the default typically lies within the discretion of the trial court - here, the Support Magistrate, as the finder of fact, see Lutz v. Goldstone, 31 AD3d 449, 809 NYS2d 341 (4th Dep't 2006), the Court notes that the Second Department has adopted a liberal policy with respect to vacating defaults in proceedings involving custody and child support. Louis v. Louis, 231 AD2d 612, 647 NYS2d 819 (2d Dep't 1996).

Before reaching the merits of Respondent's application to vacate the default, the Court expresses its serious concerns about the sequence in which the Support Magistrate proceeded to hearing on the matters pending before him, to wit, a Violation [*9]Petition filed by Petitioner alleging that Respondent violated the February 2007 Order and an OTSC by Respondent seeking to vacate that very same order. After the Support Magistrate already had adjourned the scheduled hearing on Petitioner's violation petition alleging a violation by Respondent of the February 2007 Order no less than three times - and one of those adjournments was initiated by the Support Magistrate himself, the Support Magistrate denied Respondent's request to defer the hearing one more time, to wit, until after having a hearing on whether to vacate that very same order. Instead, the Support Magistrate commenced and concluded the hearing on a Petitioner's violation petition while leaving pending Respondent's application seeking to have that same February 2007 Order vacated.

Only after the violation hearing was completed and sub judice did the Support Magistrate hold a hearing on whether Respondent met the requisite criteria — to wit, reasonable excuse and a meritorious defense to vacate the February 2007 Order entered on default. Thus, the Support Magistrate heard testimony and received evidence about Respondent's failure to comply — indeed, Petitioner sought a finding of a willful failure to comply — with an order entered on inquest that Respondent was seeking to have vacated. If, for no reason other than to conserve judicial resources and for judicial efficiency and economy, as well as to reduce the number of court appearances and attorney costs incurred by the parties, the hearing on whether to vacate the February 2007 Order should have occurred before or together with the hearing on whether the February 2007 Order was violated. See TO v. JS, 19 Misc 3d 1108A, 859 NYS2d 907 (Fam. Ct., Oswego Cnty. 2008) (bifurcation of proceedings is burdensome to parties, adds to the relative costs associated with prosecuting and defending case by adding to number of appearances).

Indeed, if the application to vacate the February 2007 Order had occurred first, and, if the Support Magistrate had concluded, as did this Court, that said order should be vacated, such a determination may very well have been a factor in determining whether any violation of such order was or was not willful.

Nonetheless, the Support Magistrate's failure to exercise judicial efficiency in this matter is not a basis for granting the Respondent's objection of the dismissal of the application to vacate the February 2007 Order.[FN10] Rather, the errors of law dictate that the February 2007 Order be vacated and the matter remanded for further proceedings in this action.[FN11]

In this case, in his findings, the Support Magistrate indicated that he accepted as credible Respondent's testimony that Respondent's father had died the weekend before [*10]the February 2007 court proceeding. See October 9 Order of Dismissal and Findings of Fact. However, the Support Magistrate found as incredible Respondent's proffered reason of depression — or his mental illness — as the basis for Respondent's failure to ask the court for an adjournment or to appear in court when Respondent was able to get himself to work for two days immediately after his father's death.

The Court finds that the Support Magistrate erred as a matter of law and abused his discretion in denying the application to vacate the default. See Frances v. Lanigan, 16 Misc 3d 968, 842 NYS2d 326 (Family Ct., Oswego Cnty. 2007) (court reverses denial of motion to vacate default due to Support Magistrate error). Specifically, the Support Magistrate erred in finding that Respondent's excuse for the default was not reasonable. See Id. at 942; see also Bridget v. Bacon, 169 Misc 2d 858, 645 NYS2d 1016 (Surr. Ct. West. Cnty. 1996) (death of brother and diagnosis of acute clinical depression constitutes excusable default).

Here, the Support Magistrate erroneously excluded evidence — to wit, expert testimony of Respondent's witness, that could have shored up Respondent's reason for not contacting the court after his father's death to request an adjournment. Specifically, the Support Magistrate failed to require opposing counsel to state the basis for his objections to Dr. Kaitz's opinion testimony — which, if such basis had been stated, could have cured counsel's failure to qualify Dr. Kaitz as an expert in mental illness. See §538 Richardson on Evidence, 10th Ed., Prince, J. (1973) (requiring grounds of an objection to be stated is to prevent delay in the administration of justice; substantial justice requires that the objection be specified so that the party offering the evidence can cure it, if possible); see also Peo v. Keough, 51 AD2d 808, 380 NYS2d 267 (2d Dept' 1976).

Had Dr. Kaitz been able to testify as to his opinion of Respondent's mental health on or around the day of court (which testimony apparently would reflect the position articulated by Dr. Kaitz in a letter that was accepted into evidence by the Support Magistrate), that, combined with the parent's death which occurred in such proximity to the proceeding, would constitute reasonable excuse.[FN12]

Indeed, the Court finds that such expert testimony in this matter was crucial to the Support Magistrate in his making a determination as to whether the excuse was reasonable in that the Support Magistrate apparently imposed his own view that Respondent's ability to function in his typical routine of attending work belied Respondent's credibility about his contention that he could not get himself to court or contact the court for an adjournment. The extraordinary act of a lay person or persons attending or dealing with a court proceeding does not seem comparable to that same person being able to maintain a daily function or routine. See e.g., Bridget at 860 (depression resulted in incapacity to deal with legal affairs). Perhaps the stress of a court proceeding or even thinking about a court proceeding was untenable to [*11]Respondent who had just experienced the death of his father. Of course, since Dr. Kaitz was not qualified as an expert, due, it appears, to the Support Magistrate's failure to require the basis of the objections to the "opinion" testimony to be stated which would have given counsel the opportunity to cure his failure to qualify Dr. Kaitz as such an expert, the Support Magistrate simply imposed his own surmise of Respondent's abilities.

Accordingly, this Court finds that Respondent proffered a reasonable basis - the death of his father just days before court - as to why he missed the February 2007 court proceeding. Moreover, the Support Magistrate erroneously precluded expert evidence by failing to require to be stated the basis of the objections to the testimony (which would have allowed counsel to cure such objections) and allow into evidence the expert testimony that could have shored up Respondent's reason for not appearing or contacting the court.

The Court also finds that the Support Magistrate erred in determining that Respondent did not offer a meritorious defense. The Respondent was not required to prove that he could succeed against all the claims of the Petitioner; rather, he needed only to establish that he had a meritorious defense to such claims. See Lanigan at 970. Here, the Support Magistrate erred as a matter of law and fact when he found that his issuance of the Modified 2007 Order in August 2007 reducing the February 2007 Order by $7,000.00 somehow does not evidence that Respondent has a meritorious defense to those claims upon which the February 2007 Order is, in part, based.

According to the Support Magistrate, "[w]ith regard to Petitioner's claims that Respondent did not prove, even on inquest, $7,000.00 in unreimbursed medial expenses, Respondent and Petitioner had previously agreed in Court during these proceedings to delete so much of those findings and portion of the money judgment . . ." See Findings of Fact, dated 9/28/07.

This Court could find no record that the parties agreed in court to reduce the February 2007 Order. Indeed, the transcript of the July 9, 2007 proceeding indicates exactly the opposite:

[SUPPORT MAGISTRATE]: I'm just talking generally whether or not you want to pull the unreimbursed medicals out of the judgment and take care of the issue that way.

[Mr. JONES Petitioner B. R.'s Counsel] : Your Honor, we would like to have the hearing in all respects."

[SUPPORT MAGISTRATE]: "so what he's saying is, I don't want to agree. I want to take, so called, the chance with going forward with litigation."July 9, 2007 Tr. at pp. 90-91. [*12]

Moreover, even if the parties had agreed, after the fact, to reduce the amount of the February 2007 Order, such event would not negate Respondent's meritorious defense to those claims upon which the February 2007 Order was issued. Indeed, if Petitioner had been willing to reduce the amount of an already-entered order, such willingness would suggest that Respondent's defense to the claims upon which that part of the order was based, in fact have merit. Thus, the Support Magistrate's issuance of a Modified 2007 Order demonstrates tacit recognition that Respondent had a meritorious defense to at least some of Petitioner's claims that previously were awarded in the February 2007 Order.

As the Support Magistrate should have found that Respondent presented a reasonable excuse as to his default and should have found that Respondent presented a meritorious defense, the Court need not reach Respondent's other arguments on this issue. Accordingly, Respondent's Objection to the OTSC Dismissal is granted, the February 2007 Order is vacated[FN13] and the matter is remanded to the Support Magistrate for proceedings consistent with this Decision and Order.

Respondent's Second Downward Modification Objection

With respect to Respondent's Second Downward Modification Objection, the Court dismisses the objection for the reasons set forth below, but remits the matter to the Support Magistrate for issuance of an amended corrected order as noted previously, herein.

A party seeking to modify an order of child support that has been incorporated into a divorce judgment, as in this case, must show an "unanticipated and unreasonable change in circumstances." Boden v. Boden, 42 NYS2d 210, 397 NYS2d 701 (1977).Here, the Support Magistrate dismissed Respondent's petition finding that Respondent failed to meet his burden of proof.

The scope of this Court's review of the Support Magistrate's finding is narrow, confined to whether the Support Magistrate, as the trier of fact, has made the necessary findings of fact and an order and whether, upon review of the record, the findings of fact present a reasonable basis for that order. Creem v. Creem, 121 AD2d 676, 504 NYS2d 444 (2d Dep't 1986). The Support Magistrate is granted broad discretion in weighing the relative financial positions of the parties and evaluating testimony and, therefore, his or her findings are entitled to great deference. Creem at 676. Moreover, the moving party should not merely repeat arguments made before the Support Magistrate, but must show, or offer to show, error by the Support Magistrate. See Green v. Wron, 151 Misc 2d 9, 571 NYS2d 193.

Upon this Court's review of the file, the Court finds that Respondent has failed to articulate any error of law or fact by the Support Magistrate upon which this Court should disturb the Support Magistrate's determination. Rather, Respondent simply has reiterated the arguments and facts that already were made to the Support Magistrate.

Moreover, the Court finds that the Support Magistrate has presented a reasonable basis for his determination, and, accordingly, the Court dismisses Respondent's objections to the dismissal of Respondent's Second Petition for a [*13]Downward Modification in their entirety.

Respondent's Counsel Fees Objection

With respect to Respondent's Counsel Fees Objection, the Court grants the objection and remands the matter to the Support Magistrate for the reasons set forth below.

As an initial matter, the Court notes that Respondent filed his objection on January 16, 2009, fifty-eight days after the Order on Motion Granting Counsel Fees was entered on November 19, 2008. Section 439(e) requires that "[s]pecific written objections to a final order of a support magistrate may be filed by either party with the court within thirty days after receipt of the order in court or by personal service, or, if the objecting party or parties did not receive the order in court or by personal service, thirty-five days after mailing of the order to such party or parties. FCA § 439. Nonetheless, the Court notes that Respondent's filing delay is de minimis and the merits of the objection still may be considered by the Court. See Fernandez v. Mark Andy, 7 AD3d, 776 NYS2d 305 (2004).

Section 438 of the Family Court Act sets forth the provisions pursuant to which an award of counsel fees may be made in proceedings of this nature. Specifically, section 438 provides, in relevant parts, that: "(a) [i]n any proceeding under this Article . . . the court may allow counsel fees at any stage of the proceeding . . . (b) [i]n any proceeding for failure to obey any lawful order compelling payment of support . . . the court shall [empahsis added], upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney representing petitioner . . . ." FCA § 438.

Here, the Court finds that the Support Magistrate made several errors of fact in his Findings upon which he granted counsel fees. Specifically, the Support Magistrate found that "[the Respondent] had been duly served initially, and failed to appear on several occasions despite adjournments in his favor to allow him to avoid default." Findings issued with Order on Motion Granting Counsel Fees, dated 10/28/09 and 11/13/08 (hereinafter "2008 Findings").[FN14] The Support Magistrate also found that "these proceedings would have been less than half as long and less than half as complex were it not for Respondent's exacerbation of the situation by failure to appear and later offering spurious and ultimately unproved claims and defenses." See 2008 Findings.The record of the proceedings and the Court file show that these findings are incorrect on several bases.

First, the court record and file reflect that Respondent missed only two court dates that he was required to attend — January 11, 2007 (which is the date the Support Magistrate proceeded to inquest in Respondent's absence) and January 24, 2008 (the return date on Petitioner's motion for counsel fees), — and appeared on all other court [*14]dates which have been numerous.[FN15] Thus, the Support Magistrate's finding that Respondent "failed to appear on several occasions (see 2008 Findings)" is error.

Moreover, there was never even one adjournment, let alone many "adjournments in his favor" for the purpose of " allow[ing] [the Respondent] to avoid default." See 2008 Findings. Indeed, the court record and file show that, at the initial proceeding on Petitioner's enforcement petition on December 1, 2006, Petitioner had not effected service on Respondent and the Support Magistrate adjourned the proceeding in favor of Petitioner to allow Petitioner the opportunity to have service effected on Respondent.

Thereafter, when service of process was accomplished and Respondent did not appear on January 11, 2007, the Support Magistrate immediately proceeded to Inquest on that date, he did not adjourn to allow Respondent an opportunity to avoid default. Thus, the Support Magistrate's determination that he had provided "adjournments" to Respondent to avoid default also is an error of fact.

The Court is cognizant that there have been several adjournments of the court proceedings before the Support Magistrate that underlie these objections. However, those adjournments were for hearings on Respondent's petitions for downward modification of his child support obligations, the violation petition and the hearing on the OTSC, not for the purpose of affording Respondent the opportunity to avoid a default.

The Court also notes that the Support Magistrate adjourned the hearing on the Violation Petition no less than three times - one on his own motion although Respondent indicated on that date he was ready to go forward on the hearing, and another even though Respondent's counsel informed the Support Magistrate he was ready to proceed (but Respondent himself interjected saying he wasn't). Despite counsel's representation, the Support Magistrate again adjourned that hearing. The Support Magistrate thereafter ignored judicial efficiency and economy in rejecting Respondent's application to have the OTSC hearing before the Violation hearing.

Moreover, the Support Magistrate's finding that [u]pon default, extra proceedings were required on [Respondent's] application(s) to vacate his default" also is an error of fact. As noted previously herein, it was not Respondent's acts, but rather the Support Magistrate's failure to consolidate or properly sequence the matters, to wit, the Violation Petition hearing and the OTSC hearing, that contributed to the increase in court appearances and caused the proceedings to be onerous, duplicative and extra-lengthy.

Moreover, as noted herein, this Court's determination that Respondent's application to have the default judgment vacated should have been granted vitiates, in large measure, the Support Magistrate's findings that "Respondent exaceraba[ted] the situation." See 2008 Findings.

The Court also notes that the notice of motion for counsel fees by Petitioner sought fees due to the Support Magistrate's finding of "willfulness" by Respondent in connection with Respondent's failure to comply with the February 2007 Order. Notably, the Violation Order and findings attendant thereto confusingly reflect that Respondent both willfully and non-willfully violated the February 2007 Order. To date, that [*15]information remains uncorrected. [FN16] The Court has no way to determine whether the Support Magistrate made any such willfulness finding or whether it was simply a typographical error in the order.

As noted previously herein, although the October 1, 2007 Order of Disposition indicates that Respondent's violation of the February 2007 Order was willful, the Support Magistrate's October 1, 2007 Findings of Fact expressly state that "[Respondent] non-willfully failed to obey the order . . ." Moreover, in the October 1 Findings of Fact, the Support Magistrate articulates no findings whatsoever about Respondent's failure to obtain life insurance. Moreover, no referral of this purported willful violation determination ever was made to this Court by the Support Magistrate for a confirmation hearing on any purported finding of willfulness as to Respondent's failure to provide the requisite life insurance.

The Court also notes that the Support Magistrate did not indicate in his 2008 Findings that the award of counsel fees, or any part of it, was issued pursuant to a finding of willfulness. Nonetheless, as § 438(b) of the Family Court Act mandates an award of counsel fees upon such a finding, it is vital for the Support Magistrate to correct the error in that Violation Order and findings attendant thereto - one way or the other - so that the Court may properly determine the appropriateness of all or part of the Support Magistrate's award of counsel fees.

Thus, the errors of fact of the Support Magistrate in the 2008 Findings upon which the award of counsel fees was based, combined with the errors rife in the previous orders issued in this matter by the Support Magistrate and this Court's vacatur of the February 2007 Order entered on default for further proceedings, mandate reversal of the award of counsel fees and remittal of the matter to the Support Magistrate for further proceedings consistent with this Decision and Order.

Acccordingly, the Court hereby grants Respondent's objection, vacates the award of counsel fees, and remands the matter to the Support Magistrate for further proceedings consistent with this Decision and Order.

Decision and Order

Based on the foregoing, it is hereby

ORDERED that Respondent's Objection to the OTSC Dismissal is granted, the February 2007 Order and Modified 2007 Order are vacated, and the matter is remanded to the Support Magistrate for proceedings consistent with this Decision and Order; and it is further

ORDERED that Respondent's Second Downward Modification Objection is denied in its entirety, but the matter is remitted to the Support Magistrate for issuance of an amended corrected order as noted previously herein; and it is further

ORDERED that Respondent's Objection to Counsel Fees is hereby granted, the award of counsel fees is hereby vacated, as is any judgment entered thereon, and the matter is remitted to the Support Magistrate for further proceedings consistent with this Decision and Order; and it is further [*16]

ORDERED that the Support Magistrate issue amended and/or corrected orders in the proceedings underlying these matters consistent with this Decision and Order; and it is further

ORDERED that counsel and the parties shall appear before Support Magistrate Allen Hochberg for further proceedings consistent with this Decision and Order on ________________, 2009 at ___ p.m.

THIS CONSTITUTES THE DECISION AND ORDER OF THIS COURT.

NOTE: (1) THE ORDER OF CHILD SUPPORT SHALL BE ADJUSTED BY THE APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER THIS ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED, UPON THE REQUEST OF ANY PARTY TO THE ORDER OR PURSUANT TO PARAGRAPH (2) BELOW. UPON APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT, AN ADJUSTED ORDER SHALL BE SENT TO THE PARTIES WHO, IF THEY OBJECT TO THE COST OF LIVING ADJUSTMENT, SHALL HAVE THIRTY-FIVE (35) DAYS FROM THE DATE OF MAILING TO SUBMIT A WRITTEN OBJECTION TO THE COURT INDICATED ON SUCH ADJUSTED ORDER. UPON RECEIPT OF SUCH WRITTEN OBJECTION, THE COURT SHALL SCHEDULE A HEARING AT WHICH THE PARTIES MAY BE PRESENT TO OFFER EVIDENCE WHICH THE COURT WILL CONSIDER IN ADJUSTING THE CHILD SUPPORT ORDER IN ACCORDANCE WITH THE CHILD SUPPORT STANDARDS ACT.

(2) A RECIPIENT OF FAMILY ASSISTANCE SHALL HAVE THE CHILD SUPPORT ORDER REVIEWED AND ADJUSTED AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER SUCH ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED WITHOUT FURTHER APPLICATION OF ANY PARTY. ALL PARTIES WILL RECEIVE NOTICE OF ADJUSTMENT FINDINGS.

(3) WHERE ANY PARTY FAILS TO PROVIDE AND UPDATE UPON ANY CHANGE THE SUPPORT COLLECTION UNIT WITH A CURRENT ADDRESS, AS REQUIRED BY SECTION FOUR HUNDRED FORTY-THREE OF THE FAMILY COURT ACT TO WHICH AN ADJUSTED ORDER CAN BE SENT, THE SUPPORT OBLIGATION AMOUNT CONTAINED THEREIN SHALL BECOME DUE AND OWING ON THE DATE THE FIRST PAYMENT IS DUE UNDER THE TERMS OF THE ORDER OF SUPPORT WHICH WAS REVIEWED AND ADJUSTED OCCURRING ON OR AFTER [*17]THE EFFECTIVE DATE OF THE ORDER, REGARDLESS OF WHETHER OR NOT THE PARTY HAS RECEIVED A COPY OF THE ADJUSTED ORDER.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

DATED: August 31, 2009

Yonkers, New York

ENTER

Hon. Colleen D. Duffy

Judge of the Family Court Footnotes

Footnote 1: On February 9, 2007, the Support Magistrate issued a money judgment against Respondent totalling $67,225.00 — $67,200.00 for arrears and $25.00 for costs and disbursements. The Court's file does not have a certified copy of the February 9, 2007 money judgment nor is there a notice of entry from the clerk of Westchester County.

Footnote 2: The Order of Dismissal, entered May 14, 2007, by the Support Magistrate contains two "ORDERED" paragraphs. The first ORDERED paragraphs states that the "petition is dismissed with prejudice." The second ORDERED paragraph states that the "within petition be and hereby is dismissed without prejudice for failure to proceed as not ready." The Support Magistrate's Findings of Fact, dated May 9, 2007, states, in pertinent part, "the within petition be and hereby is dismissed without prejudice for failure to proceed." See Order of Dismissal, entered May 14, 2007 and Findings, dated May 9, 2007. In light of the subsequent proceedings that occurred before the Support Magistrate, this Court deems Respondent's First Downward Modification Petition to have been dismissed without prejudice. The Court also remits the matter to the Support Magistrate to issue an amended corrected Order for that proceeding.

Footnote 3:

On June 4, 2007, Respondent filed a motion for leave to appeal the Support Magistrate's denial of his Order to Show Cause and to stay the hearing. The Appellate Division denied the leave to appeal.

Footnote 4: The Modified 2007 Order, signed on August 29, 2007, that is in the Court's file does not have a notice of entry.

Footnote 5: The Court file reveals that the Support Magistrate's October 1, 2007 Order of Disposition has no notice of entry.

Footnote 6: No referral of the willful violation determination was ever made to this Court by the Support Magistrate for a confirmation hearing on the Support Magistrate's finding of willfulness by Respondent's with respect to Respondent's failure to provide the requisite life insurance.

Footnote 7: Specifically, the Support Magistrate noted in his Findings issued with the Order on Motion Granting Counsel Fees, entered November 17, 2008, that "[h]ad anyone been present for Respondent, it is more likely than not that the Court would have at least entertained the claims of opposition, but no one appeared . . ." Findings, dated 10/28/09 and 11/13/08.

Footnote 8: The January 2008 Order of Dismissal contains two "ORDERED" paragraphs; the first states that "the petition is dismissed without prejudice"; the second indicates that "the relief sought in the within Petition for Downward Modification be and hereby is denied and the application is dismissed with prejudice after a hearing on October 26, 2007." The January 2008 Order of Dismissal is dated and signed as of December 16, 2007. The text of the Support Magistrate's Findings of Fact, which are dated and signed by the Support Magistrate as of November 28, 2007, are preceded by a statement that provides that "Order to enter herein that the relief sought in the within Petition for Downward Modification be and hereby is denied and the application is dismissed with prejudice after a hearing on October 26, 2007." There is no further mention in the actual findings of whether or not the Second Downward Modification Petition is dismissed with or without prejudice.Accordingly, the Court remits the matter to the Support Magistrate to issue an amended corrected order consistent with his determination.



Footnote 9: The Court notes that these objections have been pending for an inordinate length of time and expresses regret for that to litigants and counsel. However, the Court spent hundreds of hours reviewing the voluminous submissions by counsel, listened to hours of court audio transcripts of the proceedings before the Support Magistrate, read written transcripts of the June 1 and July 9, 2007 proceedings, and scoured volumes of court files, counsel's correspondence to the court and Support Magistrate's notes in preparing this decision and order.

Footnote 10: It is, however, as noted further herein, one of the bases upon which the Court is granting Respondent's motion to vacate the award of counsel fees.



Footnote 11: The numerous irregularities in the various Orders issued by the Support Magistrate, as noted herein in the procedural history, also are reasons why those matters are being remanded to the Support Magistrate for correction and/or issuance of amended orders.

Footnote 12: Indeed, this Court finds that the father's death just days before the hearing, in and of itself, constitutes a reasonable excuse for the default.

Footnote 13: The Modified 2007 Order also is vacated.

Footnote 14: The Findings that are attached to the entered Order on Motion Granting Counsel Fees contain two dates near the Support Magistrate's signature; the first is typed as "10/28/08"; the second is a handwritten notation beneath the Support Magistrate's signature "11/13/08". There is no indication in the document as to who placed the handwritten date on the document or why.

Footnote 15: As noted previously, although Respondent did not appear on December 1, 2006, he was not required to do so as no service had been effected conferring jurisdiction over him. He cannot be penalized for not appearing when jurisdiction yet had not been conferred. See Sutton v. Mundy, 24 AD3d 464, 810 NYS2d 185 (3d Dep't 2005).

Footnote 16: The Court notes that the Support Magistrate failed to recognize that the orders underlying the proceedings are rife with errors — typographical or otherwise — that appear to have caused additional attorney time and attention.