Matter of J.P. v N.P.

[*1] Matter of J.P. v N.P. 2009 NY Slip Op 51965(U) [25 Misc 3d 1203(A)] Decided on September 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 18, 2009
Family Court, Westchester County

In the Matter of a Proceeding Under Article 4 of the Family Court Act J.P., Petitioner,

against

N.P., Respondent.



F-02615-08



James J. Sexton, Esq.

130 North Main Street- Suite 201

New City, New York 10956

Karen Jansen, Esq.

Farber, Pappalardo & Carbonari

200 East Post Road

White Plains, New York 10601

Colleen Duffy, J.

On November 21, 2008, J.P. ("Mr. P"), by his attorney James J. Sexton, Esq., filed an Affirmation in Support of Objections to the Support Magistrate's Order, and exhibits attached thereto, objecting to an Order, dated August 14, 2008 and entered September 3, 2008 ("August 2008 Order"), dismissing Mr. P's application seeking to have vacated an order on default issued by the Support Magistrate in May 2008, and objecting to an Order, dated September 19, 2008 and entered October 16, 2008 ("September 2008 Order"), dismissing Mr. P's downward modification petition. On January 30, 2009, N.P. ("Ms. P"), by her attorney Karen Jansen, Esq., filed an Affirmation in Rebuttal to Objections to the Support Magistrate's Orders in opposition to Mr. P's objection.[FN1]

History of the Proceedings

[*2]The parties were married on October 30, 2008. During the marital union the parties had two children, M. P. (DOB: 3/1/1999) and J. P. (DOB:10/5/2000). On July 8, 2005, the parties entered into a Stipulation of Settlement (hereinafter "2005 Stipulation") that was placed on the record before Special Referee Reynold Snyder. Thereafter, on December 16, 2005, the parties entered into a Judgment of Divorce wherein the terms of the Stipulation of Settlement were incorporated but not merged into the Judgment of Divorce.

In the 2005 Stipulation, the parties had agreed to opt out of the basic child support requirements of the Child Support Standards Act. See Stipulation pp. 8-11. Specifically, Ms. P agreed that Mr. P would pay to her two hundred five dollars ($205.00), plus seventy five dollars ($75.00), during the school year for child care for the benefit of the Subject Children. Id. In addition, every year Mr. P was obligated to pay fifty percent of the price of summer camp for the Subject Children. Id. The 2005 Stipulation also provided that, if Mr. P was not employed, Mr. P would have to continue to pay $100.00 per week of the amount set forth above and arrears as to the remaining weekly amount (to wit, $180.00 per week) would accrue. Id. The 2005 Stipulation also indicated that, at the time of the entry of the 2005 Stipulation, Mr. P was in arrears in the amount of one thousand nine hundred fifty dollars ($1,950.00) for camp expenses and three thousand twenty five dollars ($3,025.00) in child support (and that, if at the end of 2005 Mr. Pollack had not paid those amounts, a judgment in those amounts could be entered against Mr. P). Id.

The 2005 Stipulation also provided that any judgment for those arrears would be vacated, and Ms. P would not seek any other accrued child support arrears that may have accumulated, if Mr. P's income at the end of 2005 year was less than $53,000.00. Id. at 10. Concomitantly, if Mr. P's 2005 income were $53,000.00 or more, the judgment for arrears referred to above would be enforceable and Ms. P could seek payment for any other accumulated arrears. Id.

On February 8, 2008, Ms. P filed an enforcement petition alleging that Mr. P failed to obey the terms of the 2005 Stipulation and had not paid child support or child care expenses. On March 7, 2008, the matter came before Support Magistrate Allen Hochberg for preliminary proceeding. Petitioner appeared pro se and Mr. P appeared personally and with counsel, Matt Mazzamurro, Esq. At that proceeding, Mr. P informed the Support Magistrate that he wanted the opportunity to retain another attorney and have that attorney present for the proceeding.

Notwithstanding Mr. P's request, the Support Magistrate issued findings and a temporary order against Mr. P finding that Mr. P failed to comply with the terms of the 2005 Stipulation and that Mr. P did not pay arrears in the amount of three thousand twenty five dollars ($3,025.00). The Support Magistrate issued a money judgment in the amount of three thousand twenty five dollars, plus twenty five dollars for costs and disbursements, for a total of ($3,050.00) against Mr. P, and issued a temporary Order of Support obligating Mr. P to pay two hundred five dollars per week ($205.00), plus seventy five dollars ($75.00) per the 2005 Stipulation payable through the Westchester County Support Collection Unit ("SCU"), for the benefit of the Subject Children as well [*3]as half of the camp expenses.[FN2] The Support Magistrate then scheduled a hearing for the petition for April 18, 2008.[FN3]

On April 1, 2008, Evan Sacks, Esq., an attorney from Sacks and Sacks, LLP, sent an ex parte letter to the Support Magistrate stating that his firm had been retained to represent Mr. P in a separate, civil, tort matter. Mr. Sacks informed the Support Magistrate that his office was assisting Mr. P in obtaining counsel for the proceeding before the Support Magistrate and requested an adjournment of the April court date. [*4]The Support Magistrate granted the request for an adjournment.[FN4]

When the Support Magistrate informed Ms. P of Mr. P's adjournment request, Ms. P stated that she wanted to proceed on April 18, 2008 and the court kept the matter on its calendar for that date.[FN5]

On April 18, 2008, Ms. P appeared pro se and Mr. P was not present. The Support Magistrate did not require Ms. P to be sworn in under oath but discussed the case with Ms. P and indicated that he would issue a money judgment. He also informed Ms. P that he would "indicate that [Mr. P] has not paid since March 21st" and then he adjourned the hearing to May 12 at 10:00 a.m. and said that he would send notice to Mr. P and Mr. P's attorney of record.See Audio Tr., April 18, 2008. SM Hochberg.

On May 12, 2008, the matter was heard by the Support Magistrate.[FN6] Ms. P appeared pro se. Mr. P was not present for the initial calendar call but appeared at the second call of the matter. During the first call of the case, the Support Magistrate proceeded to a hearing. The Support Magistrate reserved decision and informed Ms. P that she would get "the papers" in the mail accompanied by the Support Magistrate's findings. See Audio Tr., May 12, 2008, SM Hochberg.

At the second call of the matter (fifty minutes after the scheduled time for the court proceeding), Mr. P appeared and informed that the Support Magistrate that he had failed to timely appear because he (still) was trying to obtain counsel. The Support Magistrate then asked Mr. P if he was ready to proceed to a hearing. Mr. P stated that he did not want to proceed without a lawyer. The Support Magistrate then entered a default against Mr. P and informed Mr. P that he would receive "the papers" in the mail and that Mr. P could provide such documents to whatever attorney he selects, and that Mr. P's "new lawyer" could make an application to the court to vacate the default. Id. [*5]

On May 19, 2008, the Support Magistrate issued an order of support by default, entered on May 22, 2008 ("May 2008 Order"), obligating Mr. P to pay two hundred five dollars ($205.00) plus sixty dollars per week ($62.00) for child care (the amount equals seventy five dollars ($75.00) per week for the 10 months of school during the year and one hundred dollars ($100.00) toward the cost of the Subject Children's camp for the summer of 2009). The Support Magistrate also entered a money judgment against Mr. P in the amount of fourteen thousand two hundred eight dollars ($14,208.00), plus costs and disbursements in the amount of ($25.00) for a total of fourteen thousand two hundred thirty three dollars ($14, 233.00) for child support arrears.

On June 19, 2008, Mr. P, through his attorney James Sexton, Esq., filed an Order to Show Cause seeking to have Ms. P show cause as to why an Order should not be made (1) vacating Mr. P's default at the hearing held May 12, 2008; (2) vacating the May 2008 Order; (3) granting Mr. P a new hearing date; and (4) granting Mr. P such other and further relief as the court appears just and proper.

Support Magistrate Allen Hochberg scheduled the hearing on the Order to Show Cause for July 1, 2008. Mr. P appeared personally and was represented by James Sexton, Esq.; Ms. P appeared pro se. The hearing was not completed on that date and was continued to August 14, 2008.

Before the next scheduled court date of August 14, 2008, Mr. P filed a modification petition seeking a downward modification of his child support obligations. Specifically, Mr. P alleged that on or about January 19, 2006, he was severely injured in a work related accident wherein, he suffered permanent injury to his head, face, back, ribs, elbow and shoulder which required multiple surgeries. Mr. P further alleged that, as result of these injuries and multiple surgeries, he is and has been unable to work since January 19, 2006.

In addition to that new petition filed by Mr. P, on August 8, 2008, the Westchester County Department of Social Services filed a violation petition on behalf of Ms. P alleging that the Mr. P failed to obey the terms of the May 2008 Order and that Mr. P owes Ms. P arrears in the amount of twenty one thousand eight hundred ninety four dollars and forty nine cents ($21,894.49).[FN7]

On August 14, 2008, Mr. P personally appeared and with counsel James Sexton, Esq., and Ms. P appeared pro se. As both parties had filed petitions while the hearing was pending (that had started on July 1 and scheduled to be completed on August 14, 2008), the Support Magistrate, on the consent of the parties, had consolidated the proceedings to address the issues presented in Mr. P's modification petition as well as the OTSC, and, with the consent of the parties, deemed the evidence and testimony adduced at the hearing on the OTSC to be the evidence and testimony for Mr. P's modification petition. [*6]

At the conclusion of the hearing on August 14, the Support Magistrate dismissed the order to show cause for failure to state a cause of action finding that Mr. P did not establish a good excuse for his default and did not establish a meritorious defense to vacate the default. The Support Magistrate also found that Mr. P failed to state a cause of action to modify or vacate Mr. P's obligation to pay child support pursuant to the 2005 Stipulation and the May 2008 Order, including all money judgments entered against him.

Thus, with respect to Mr. P's Order to Show Cause, the Support Magistrate issued an Order of Dismissal on August 14, 2008, entered September 3, 2008 ("August 2008 Order"). With respect to Mr. P's modification petition, the Support Magistrate issued an Order of Dismissal, dated September 19, 2008, with Findings of fact, dated October 14, 2008 and entered October 16, 2008 ("September 2008 Order"), and continued all terms of the May 2008 Order including money judgments.

On November 21, 2008, Mr.P, by his attorney James J. Sexton, Esq., filed an objection to the August 2008 Order and the September 2008 Order contending that the Support Magistrate erred in finding that Mr. P did not sustain his burden of (1) proving a good defense to vacate his default of the May 2008 proceedings or (2) a change of circumstances warranting a downward modification of the May 2008 Order. Mr. P further contends that the Support Magistrate erred in finding Mr. P's testimony not to be credible.

On January 30, 2009, Ms. P filed a rebuttal to Mr. P's objection.[FN8] Ms. P contends that the Support Magistrate did not err and that Mr. P's contentions that he is unable to work or meet his obligations to pay child support lack credibility.

For the reasons set forth in this Decision and Order, the Court grants Mr. P's objection to the August 2008 Order, hereby vacates the May 2008 Order, and grants Mr. P's objection to the September 2008 Order and remits 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 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 [*7]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).

Mr. P's Objection to the August 2008 Order

As an initial matter, this Court notes that Mr. P improperly filed his motion before the Support Magistrate as an order to show cause ("OTSC") seeking to stay the 2008 enforcement petition hearing and to vacate the May 2008 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] . . ."). Mr. P'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 that he held a hearing on the record on July 1, 2008 and dismissed the OTSC. See August 2008 Order (S.M. Hochberg).

Section 5015 of the Civil Practice Law and Rules provides that Mr. P may be relieved of a default on the dual showing of an appropriate excuse for the default and a meritorious defense to the petition. The denial of a motion pursuant to § 5015 is appealable to a Family Court judge by the filing of objections. Commissioner of Social Services on Behalf of Nidia F. V. Paulino F., 146 Misc 2d 1014, 553 NYS2d 636 (Fam. Ct. 1990). 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).

Court Irregularities Warrant Vacatur of Order

Before addressing the merits of Mr. P's application to vacate the default, the Court expresses its serious concerns about the irregularities that occurred in connection with this matter, to wit: (1) The Support Magistrate's denial of Mr. P's right to seek new counsel; (2) the ex parte communication that occurred between the court and each party, respectively, which resulted in the Support Magistrate holding an ex parte court proceeding €" without Mr. P's prior knowledge with only Ms. P present on April 18 in which the Support Magistrate discussed the case with Ms. P; and (3) the Support Magistrate's issuance - after a second call of the case- of an order on "default" €" when Mr. P was, in fact, present, albeit late, at the May 12 proceeding. As noted herein, these "irregularities" €" along with the errors of fact and law made by the Support Magistrate as set forth below necessitate vacatur of that May 2008 Order.

On March 7, 2008, Mr. P informed the Support Magistrate that he wanted the opportunity to retain new counsel. The Support Magistrate, although he set the hearing [*8]for another date, nonetheless issued (erroneous, as noted below) orders including a temporary order of support and issued a money judgment against Mr. P. The Support Magistrate erred by peremptorily issuing (erroneous) orders on March 7 despite Mr. P's request for counsel and erred again by denying Mr. P an opportunity to have counsel present before concluding the hearing on May 12, 2008 without first having warned Mr. P that if he again appeared without counsel, the matter would proceed nonetheless. See In the Matter of Evan F., et al., 29 AD3d 905, 815 NYS2d 697 (App. Div. 2d Dep't 2006) (range of discretion for adjournments is narrow where a fundamental right such as right to counsel is involved; failure to allow a subsequent adjournment for party to retain counsel without having had informed party of probable consequence of waiver of attorney constituted error); see also Frances v. Lanigan, 16 Misc 3d 968; 842 NYS2d 326 (2007) (Support Magistrate denial to party the assistance of counsel constitutes an improvident exercise of discretion).

The Findings of fact by the Support Magistrate attendant to his dismissal of the application to vacate also set forth erroneous facts as to the opportunities afforded by the Support Magistrate to Mr. P to obtain an attorney. See Findings of fact, dated August 26, 2008. Those Findings, state, in relevant part: Respondent . . . was given more than a month, to April 18, 2008 to get a lawyer and the documents he would need to either defend against Petitioner or prove his case. On April 18, 2008 there was no lawyer for the Respondent and no documents. The case was adjourned to May 12, 2008. Respondent appeared an hour late, . . . [h]e had no lawyer and no documents.

*** . . . Respondent contends he was looking for an attorney, effectively for four months and three court appearances . . .

See Findings of Fact, August 26, 2008, SM Hochberg.

As noted earlier herein, there is no record that Mr. P was notified that the April 18 date for the proceeding was reinstated after the Support Magistrate earlier had granted a request made on Mr. P's behalf to adjourn that court date to a later date.Not only did the Support Magistrate fail to ensure that Mr. P was notified that his adjournment request was denied after having been notified it was granted, as noted herein in footnotes 3 and 4, infra., the ex parte communication engaged in by the Support Magistrate and/or his staff at his bequest, although ostensibly solely for the ministerial purpose of scheduling a date, resulted in Mr. P's substantive rights being detrimentally effected.

To wit, not only did the Support Magistrate schedule and hold an ex parte proceeding on April 18, he engaged in ex parte communications with Ms. P, who, at the inexplicable direction of the Support Magistrate, remained unsworn for that proceeding. See Audio Tr. , 4/18/09, SM Hochberg. Moreover, at the April 18 proceeding the Support Magistrate relied on information provided to him on that date by Ms. P about payments purportedly not made by Mr. P. Id. The unsworn information obtained by the Support Magistrate at that ex parte proceeding detrimentally affected Mr. P's case. [*9]

Moreover, in his August 26, 2008 Findings, the Support Magistrate articulated, as a basis, in part, for denying Mr. P's vacate application, that no one was present for Mr. P nor were there documents on April 18. See Findings of fact, August 26, 2008.

The Support Magistrate's reliance, in part, on Mr. P's lack of attendance on April 18, as a basis to deny the vacate application is even more egregious when, at the March 7 proceeding Mr. P's then-counsel already had articulated to the Support Magistrate on March 7 that an April 18 proceeding would be too soon for Mr. P to retain new counsel or produce documents. See Audio Tr., March 7, 2008 SM Hochberg. On that March 7 date, the Support Magistrate told the parties that, although the April 18 date would be set, the parties would receive subsequent notice of a date in May. See Ftntes 3 and 4, infra.; see also Audio Tr. 3/7/08, SM Hochberg.

These irregularities, as articulated above, require vacatur of the May 2008, August 2008 and September 2008 Orders and remittal to the Support Magistrate for further proceedings consistent with this Decision and Order.

Excusable Default and Meritorious Defense

The Court also 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). Irrespective of whether Mr. P's reason for his failure to timely appear at the May 12 court proceeding constitutes "excusable default,"[FN9] the Court finds that Mr. P may very well have a complete defense to the enforcement petition. The Support Magistrate made numerous errors of law, including determining that Mr. P did not have a meritorious defense, in that the Support Magistrate, starting with the very first court proceeding on March 12, 2008, failed to properly determine whether Ms. P's "enforcement" petition (and the subsequent petitions filed thereafter) even had any merit. Specifically, the Support Magistrate failed to consider the relevant terms of the 2005 Stipulation when he issued his March 7, 2008 Findings and Order (signed and entered April 18, 2008).

The Court finds that the crux of the dispute between the parties is the provision in the 2005 Stipulation which provides, in relevant part, that: the mother agrees that for so long as the father is not working, he is to pay one hundred dollars($100.00) weekly for his child support and child care obligations and that child support arrears continue to accrue while he pays that [*10]amount from unemployment . . . If at the end of the 2005 calendar year, the father has not earned at least fifty three thousand dollars ($53,000.00) then the judgment for three thousand twenty five dollars ($3,025.00) will be vacated and she will not seek any other accrued child support arrears that may have accumulated. If at the end of the 2005 calendar year the father has earned at least fifty three thousand dollars ($53,000.00), then the judgment for three thousand twenty five dollars ($3,025.00) is enforceable and the mother is entitled to apply for payment of any other accumulated arrears.

See 2005 Stipulation pp. 8-11.

Thus, a plain reading of the 2005 Stipulation reveals that a condition precedent to determining Mr. P's liability for any arrears, is first to ascertain whether Mr. P earned more or less than $53,000.00 in that 2005 year. The Support Magistrate failed to do so. See In the Matter of Roccoline Cooke, 123 Misc 2d 351, 473 NYS2d 726 (1984) (clear language in parties' separation agreement leaves little to imagination and true intent of the parties). Not one order or finding of fact issued by the Support Magistrate in connection with these proceedings sets forth any determination by the Support Magistrate of Mr. P's 2005 income. (The Support Magistrate does allude to Mr. P's 2006 income as $5,159.00 (see Findings of Fact, dated August 26, 2008), which, assuming the terms of the 2005 Stipulation apply beyond the year 2005, would mean that, if Mr. P's income for 2006 was that amount, he would not be liable for any arrears that may have accumulated in 2006.)

Thus, at the outset, the Support Magistrate erred in issuing a money judgment on March 7, 2009 (entered April 18), and erred in his Order and Findings of fact attendant thereto, and all the subsequent Orders, money judgments and Findings of fact, when he failed to calculate Mr. P's 2005 income before determining whether any arrears or judgments existed that needed enforcement. 22 N.Y.S.C.R.R. § 205.36. The Support Magistrate continued this error in failing to find that Mr. P would have a likelihood of success on the merits (indeed, it would be an absolute defense to "any arrears that may have accrued") if Mr. P were to establish that his 2005 income was less than $53,00.00. See Cupoli v. Nationwide Ins. Co., 283 AD2d 961, 724 NYS2d 382 (4th Dep't 2001)(language unambiguous).

The Support Magistrate also erred in determining, "In no event, therefore, was [Mr. P] excused from the obligation of paying the full amount of child support." This finding is wholly incorrect. Indeed, the language of the 2005 Stipulation reveals that, if Mr. P's 2005 income was less than $53,000.00, not only would the 2005 judgments be vacated, Ms. P agreed not to seek "any other accrued child support arrears that may have accumulated [empahsis added]. In effect, Ms. P agreed to seek no monies from Mr. P (not even the $100.00 per week he had agreed to pay when unemployed) if his income in 2005 was less than $53,000.00. See Cooke at 726 (1984) (clear language in parties' separation agreement leaves little to imagination and true intent of parties).

Moreover, although the 2005 Stipulation reveals that the parties contemplated that, if Mr. P earned less than $53,000.00 that year he would not be liable for any [*11]arrears that may accumulate (including, presumably, arrears arising out of his failure to even pay the reduced $100.00 per week during the period he was unemployed), it is unclear whether the parties intended all of these provisions regarding child support, arrears and liability for arrears contingent upon Mr. P's income to extend beyond the year 2005. The Stipulation does not indicate it. See 2005 Stipulation at 8-11. Thus, it is possible that the parties agreed only to opt out of CSSA for 2005. It also is possible that the parties anticipated that all of these terms would apply, year by year.

Irrespective, there was no determination by the Support Magistrate as to whether these provisions in the 2005 Stipulation continue to apply year by year or whether these terms are specific to 2005 only, and, if so, whether the CSSA then would govern. The Support Magistrate's failure to address these issues also is error. See MG v.EG, 862 NYS2d 809(Sup. Ct. Nassau Cnty. 2005) (ambiguous provisions regarding child support referred back to mediator - consistent with mediation requirement in parties' agreement for determination of interpretation and validity of terms).

Accordingly, the Court vacates the May 2008 Order, grants the objections as to both the August 2008 Order and September 2008 Order and remits the matter to the Support Magistrate for further proceedings consistent with this Decision and Order. In light of the foregoing, the Court need not reach Mr. P's other arguments on this issue.

Mr. P's Objection to October 2008 Order

With respect to Mr. P's objection to the October 2008 Order, for all the reasons set forth herein and below, this Court remits the matter concerning the modification petition to the Support Magistrate for further proceedings consistent with this Decision and Order.

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); see also Praeger v. Praeger, 162 AD2d 671, 557 NYS2d 394 (2d Dep't 1990).

Here, Mr. P's modification petition may be wholly moot if his income in 2005 was less than $53,000.00 and those terms in the 2005 Stipulation are determined to apply each and every year. As the issue of what Mr. P's income was for 2005 as well as the issue of whether the provisions of the 2005 Stipulation apply beyond the year 2005 yet are unresolved, the Court cannot ascertain whether or not Mr. P's modification petition is relevant or germane.

Accordingly, for all the reasons set forth in this Decision and Order, the Court hereby grants Mr. P's objection, 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 Mr. P's Objection to the OTSC Dismissal is granted, the May 2008 Order is vacated as are the August 2008 Order and the September 2008 Order, and the matters are remanded to the Support Magistrate for further proceedings consistent with this Decision and Order; and it is further

ORDERED that Mr. P's Downward Modification Objection is granted to the extent that it is not determined to be moot after the matters are remitted to the Support [*12]Magistrate for a hearing as noted previously herein; 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 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 [*13]

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:September 18, 2009

Yonkers, New York

ENTER

HON. COLLEEN D. DUFFY

JUDGE OF THE FAMILY COURT Footnotes

Footnote 1:The Court notes that this objection has 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 July 1 and August 14, 2008 proceedings, and scoured pages upon pages of court files, including counsel's correspondence to the court and the Support Magistrate's notes in preparing this decision and order.

Footnote 2: Although the Findings, Temporary Order of Support and Money Judgment all reflect that they relate to a court proceeding of March 7, 2009, this Court notes that the Findings, Temporary Order and Money Judgment each were signed and entered on April 18, 2009. That date €" April 18, 2008 €" is germane in that April 18 was to have been the next scheduled court date for the parties after the March proceeding wherein Mr. P asked to have the opportunity to retain counsel and have counsel present.

The record of the March proceeding reflects that the Support Magistrate went forward despite Mr. P's request for different counsel on that date and issued orders on that date; then adjourned the matter to another date €" April 18 €" for hearing. Almost three weeks before the scheduled April 18 hearing, the Support Magistrate received a written, ex parte, request, on April 1, 2009, by an attorney on behalf Mr. P seeking an adjournment of the April 18 court date so that Mr. P could retain counsel. As noted further herein, the Support Magistrate granted the request for an adjournment but, after having learned that Ms. P wanted to appear on April 18 anyway, the Support Magistrate inexplicably kept the April 18 court date. There is no record that Mr. P was informed that his adjournment request, that initially was granted, peremptorily was denied. There also is no notice to the parties - other than the March 14, 2008 notice that preceded the April 1 letter - about the April 18 proceeding. There is no record that Mr. P was informed that the April 18 court date was reinstated on the court calendar for a proceeding. On April 18, Mr. P did not appear; Ms. P did. On that same date, the Support Magistrate then issued the written Orders and judgment which apparently arose out of the March 7, 2009 court proceeding.

The ex parte communication that occurred, respectively, with each party, and the court's failure to notify a party about a scheduled hearing (which also resulted in an ex parte proceeding on April 18) not only is irregular and inconsistent with appropriate court practice and due process (see Matter of Vonder Heide, 72 NY2d 658, 536 N.Y.S.2d 1252 (1988); 22 NYCRR 100.3(B)(6)(a) - (e), as noted further in this Decision and Order, the Support Magistrate, in his Findings upon which he denied Mr. P's application to vacate the May 2008 Order, erroneously determined that Mr. P purported to be looking for an attorney, "effectively four months and three court appearances . . .".See Findings of fact, dated August 26, 2008. This is factual error as Mr. P only was notified of two of the "three" court appearances €" March 7 and May 12. On March 7, Mr. P had counsel €" he was seeking different counsel. That purported "third" proceeding April 18 €" as far as the court file and record reflect €" had been adjourned and Mr. P never was noticed that the date was reinstated.

Footnote 3: On March 7, the Support Magistrate originally was prepared to set the next court date for April 30, 2008. See Audio Transcript, March 7, 2008, SM Hochberg. Ms. P indicated that she could not attend that date because she was scheduled to go on vacation. The Support Magistrate then suggested April 18 as the next court date. Mr. P's counsel expressed concern that the date was too soon for Mr. P to retain new counsel or get documents prepared. The Support Magistrate informed the parties that he didn't have his May calendar so he'd set it for the April 18 date but would subsequently issue written notice to the parties as to a different date in May. Id.

Footnote 4: There is no letter in the court file from the Support Magistrate responding to Mr. Sack's written request. Rather, there are handwritten notes in the file written on and/or affixed (via sticky note) to the April 1 letter from Mr. Sacks to the Support Magistrate; one note appears to be written by the Support Magistrate, the others by an unidentified clerk, indicating the request was granted.

The note apparently written by the Support Magistrate is dated "4/1/08" and states "OK . . . [undecipherable] . . . "tell them û". One of the handwritten notes by an unidentified clerk is dated "4/3/08" and states, "spoke w/ corinne @ Sacks office." That same note also states (in the same handwriting) "4/14/09" "- spoke w/ Evan Sacks Adj. Request granted". Another note, apparently written by the same unidentified clerk, is dated "4/16/08" and indicates that "Petitioner was notified but wants to appear on 4/18 anyway." The last note affixed to the letter is in the same handwriting as the other ones by that unidentified clerk and is dated "4/18" and states, "sent copy of TOS + notice to appear." [This court believes "TOS" refers to temporary order of support.]

Footnote 5: As noted above, there is no record whatsoever that Mr. P was notified that the April 18 court date was reinstated to the court's calendar.

Footnote 6: At the May 12 proceeding, the Support Magistrate noted on the record that he had previously granted the adjournment request made by Evan Sacks, Esq., on behalf of Mr. P but now " . . .no one is here." There is no record that Mr. Sacks ever was notified of the May 12 "adjourned" date; however, the notice was sent to Mr. P on April 18 for the May 12 date.

Footnote 7: The violation hearing, which was held on October 22, 2008, and the Support Magistrate's Order of Disposition and Findings of fact arising out of that October 22, 2008 hearing, are not the subjects of Mr. P's objections. Nonetheless, although this Decision and Order do not specifically address that proceeding or that Order of Disposition and Findings, to the extent that the Order and Disposition are inconsistent with this Decision and Order, the Support Magistrate is directed to restore those matters for further proceedings consistent with this Decision and Order.

Footnote 8:Ms. P's counsel, Karen Jansen, Esq., had requested and sought additional time to file a rebuttal to Mr. P's objection, which was consented to by Mr. P's counsel and this Court.

Footnote 9: This Court finds that Mr. P's reasons for appearing late do constitute excusable default. Frances v. Lanigan, 16 Misc 3d 968; 842 NYS2d 326 (2007) (default vacated; court found Support Magistrate denied respondent assistance of counsel constituting an improvident exercise of discretion that independently warranted vacatur of the support order). It appears that the only reason the Support Magistrate did not find excusable default because he believed Mr. P took too long in retaining counsel. As noted herein, although adjournments typically fall within the discretion of the court, that range of discretion is narrow with respect to a request to adjourn to obtain counsel. See Evan F. at 697. Here, the Support Magistrate never warned Mr. P that at the next court date the hearing would go forward whether or not he had retained counsel; such failure to advise Mr. P as to the consequences of not timely retaining counsel constitutes error. Id.