Matter of Ronald F. v Kathy Jo O.

[*1] Matter of Ronald F. v Kathy Jo O. 2009 NY Slip Op 52342(U) [25 Misc 3d 1229(A)] Decided on November 19, 2009 Family Court, Erie County Bailey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2009
Family Court, Erie County

In the Matter of a Support Proceeding Ronald F., Petitioner,

against

Kathy Jo O., Respondent.



F-30730-97/09F

Rosalie Bailey, J.

Petitioner, Ronald F., objects to the order of the Support Magistrate, dated August 21, 2009, which granted judgment against him in the amount of $15,222.00 for child support arrears. Mr. F. argues that, because he was disabled since May, 2006, with income below the federal poverty income guidelines, his arrears were required to be capped at $500.00 pursuant to section 413(1)(g) of the Family Court Act.

The Support Magistrate found that Mr. F. began to accrue arrears on August 26, 2004 and that he became disabled on March 27, 2007. The total arrears allegedly between August 26, 2004, and the time Mr. F. petitioned for a modification of his obligation on January 8, 2009, was $15,222.00. These factual findings are not at issue on this objection.

Section 413(1)(g) states that "[w]here the non-custodial parent's income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue." It is undisputed that, at least from March 27, 2007, until the date the petition was filed, Mr. F.'s income was below the poverty income guidelines.

Respondent, however, argued that the cap should not apply because of the requirements of section 451 of the Family Court Act, which prohibits the court from reducing or annulling arrears accrued prior to the filing of a modification petition unless the party shows good cause for failure to make the application sooner. The Support Magistrate, based upon both section 451 and the fact that arrears began to accrue prior to Mr. F. becoming disabled, refused to apply the cap.

The policy against reducing or annulling accrued arrears is very strong. However, in Matter of Blake v. Syck, 230 AD2d 596, 661 NYS2d 341 (4th Dept. 1997), the court analyzed the apparent conflict between sections 413(1)(g) and 451 and found that section 451's prohibition on reducing arrears was not applicable because by operation of section 413(1)(g) the arrears had never accrued. This point was also clarified in Matter of Faresta v. Faresta, 11 AD3d 750, 783 NYS2d 420 (3rd Dept. 2004), in which the court stated that "any perceived conflict between the [*2]provisions of Family Ct. Act §451, which preludes the reduction or cancellation of child support arrears, and Family Ct. Act §413(1)(g) vanishes if the statutory cap does in fact apply." Thus, even though Mr. F. waited until long after he became disabled to file for modification of his obligation, no arrears could have accrued beyond $500.00 for the period between March 27, 2007, and the commencement of this proceeding. See, also, Campos v. Campos, 291 AD2d 203, 737 NYS2d 341 (1st Dept. 2002).

Mr. F.'s position, however, that Syck provides that arrears must be capped at a total of $500.00, despite the fact that arrears began to accrue prior to his becoming disabled, is not supported. The facts in Syck were such that the party in arrears had been disabled, with income below the poverty guidelines, for the entire period that arrears had allegedly accrued.

Here, it appears that arrears greater than $500.00 had already accrued at the time Mr. F. became disabled. Thus, following the reasoning of Syck, section 451 prohibits the court from reducing or cancelling that amount of arrears, since no good cause was shown for failure to apply to modify the existing order. Once Mr. F. became disabled, however, no more than an additional $500.00 could accrue.

This matter must, therefore, be remanded for a determination of the amount of arrears accrued prior to Mr. F. becoming disabled.

It is, therefore,

ORDERED, that the objection is granted, in part; and it is further

ORDERED, that the matter is remanded to the Support Magistrate for a determination of the amount of arrears that accrued prior to Mr. F. becoming disabled; and it is further

ORDERED, that arrears following the time when Mr. F. became disabled shall be capped at $500.00.

This constitutes the decision and order of this Court. Submission of an order by the parties is not necessary.

Dated:November 19, 2009

Buffalo, New York

____________________________________

ROSALIE S. BAILEY

Family Court Judge