Matter of Mary M. v Thomas M.

[*1] Matter of Mary M. v Thomas M. 2011 NY Slip Op 50972(U) Decided on June 1, 2011 Family Court, Clinton County Lawliss, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2011
Family Court, Clinton County

In the Matter of a Support Proceeding Mary M., Petitioner,

against

Thomas M., Respondent.



F-xxxxx-xx/xxx

 

Appearances:Clinton County Support Collection Unit, Plattsburgh (Van Crockett, Esq., of counsel) for Mary "M."

Thomas "M.", pro se

Timothy J. Lawliss, J.

On January 14, 2011, Mary "M." filed a petition against Thomas "M." alleging that Mr. "M." willfully violated a court order requiring him to pay child support for the benefit of Abigail "M.", d/o/b xx/xx/xx and Paige "M.", d/o/b xx/xx/xx.

After an evidentiary hearing, Support Magistrate Howley found that Mr. "M." wilfully failed to obey the existing child support order which required Mr. "M." to pay $102.00 per week to the petitioner for the support of the subject children. The Support Magistrate signed an order for the entry of a money judgment in the amount of $2,040.00, which represented the amount of unpaid child support which accrued between the entry of the last support order dated September 24, 2010 and February 15, 2011. Support Magistrate Howley also noted that when the amount of this judgment was combined with prior judgments issued against the respondent in favor of the petitioner for unpaid child support, Mr. "M." owed Mrs. "M." $14,112.16. Pursuant to FCA § 439(a) Support Magistrate Howley referred the matter to the Family Court Judge for confirmation.

On May 10, 2011, this Court issued an order confirming the Support Magistrate's finding of a willful violation and ordered all parties to appear before the Court on May 24, 2011 for a hearing to determine what sanctions, if any, should be imposed on Mr. "M." for his willful violation. At the May 24th hearing, petitioner's attorney reported to the Court that for fourteen weeks the respondent had paid his weekly child support obligation of $102.00 plus additional money towards the arrears. The respondent represented to the Court that he had begun new full-time employment. The respondent further represented to the Court that if he was able to maintain this job, he could pay his child support obligations and continue to make additional [*2]payments towards the arrears.

FCA § 454 specifies the powers of the court upon a finding of a violation of a support order. Subparagraph (2) identifies the actions that the court can take with respect to any violation and subdivision (3) specifies the actions that the court can take when a violation is willful.

Mr. "M."'s willful violation is egregious. He is almost three years behind in child support. The Court has seriously considered the possibility of committing the respondent to jail for a term which could be as long as six months. see, FCA § 454(3)(a). Notwithstanding the egregious nature of the violation, in light of the fact that the respondent is now meeting his current child support obligation and has paid something towards arrears, and considering that the petitioner did not request incarceration, the Court is inclined to construct an order which will keep Mr. "M." employed, but motive him to continue to meet his current child support obligations and make payments towards the arrears.

Accordingly, rather than commit the respondent to jail, the Court is going to place the respondent on probation pursuant to FCA §§ 454(3)(c) and 456. The term of probation shall continue until the $14,112.16 arrears that were due as of February 15, 2011 have been satisfied in full or until there is no longer an order of support in effect for either of the two subject children, whichever event occurs first. see, FCA § 456(a). The terms and conditions of probation shall include a provision that prohibits the respondent from purchasing, leasing or renting a variety of items which are not necessities. The terms and conditions of probation shall include a provision that prohibits the respondent from purchasing, leasing or renting certain items without the prior written permission of his probation officer. The items which require the pre-approval of his probation officer may or may not be necessities based upon the respondent's and his family's situation. The goal of the Court is to ensure that all monies that the respondent receives that are not required to purchase necessities are used by the respondent to pay arrears until such time as the arrears are fully satisfied.

In addition, the Court shall require the respondent to provide to his probation officer: (1) written proof of all monies of any kind which he receives including, but not limited to, earned income and gifts; and (2) written receipts for all monies transferred to any party by the respondent for any purposes. Thus, the probation officer will be in a position to verify that any funds received by the respondent, not needed for necessities, are used to pay arrears. The terms and conditions of probation shall also include certain general terms to ensure that the respondent generally lives a law abiding life, maintains employment and can be effectively supervised by his probation officer.

The Court has considered the other statutory alternatives available and notes the following. In addition to placing the respondent on probation, a money judgment has already been entered against Mr. "M." pursuant to FCA § 454(2)(a). Based upon the representations of the petitioner, it appears that an income deduction order for support enforcement has already been issued. see, FCA § 454(2)(b). The petitioner has not requested the Court to require the respondent to post an undertaking or to issue an order of sequestration regarding any property. see, FCA § 454(2)(c) & (d). The Court declines to suspend the respondent's driving privileges pursuant to FCA § 454(2)(e) because the Court wishes the respondent to stay employed and a driver's license appears necessary to maintain employment. No information has been presented to the Court that the respondent possesses any professional, business or recreational licenses that could be [*3]suspended pursuant to FCA § 454(2)(f) & (g). Lastly, the Court is not requiring the respondent to participate in a rehabilitation program because there is no information before the Court that such participation would assist the respondent in complying with the order of support. see, FCA § 454(3)(b).

ACCORDINGLY, IT IS HEREBY

ORDERED, that Thomas "M." is placed on probation under the supervision of the Clinton County Department of Probation until the earlier of the following two events: (a) no order of support is in effect which requires Thomas "M." to pay child support for the benefit of Abigail "M.", d/o/b xx/xx/xx and Paige "M.", d/o/b xx/xx/xx; and (b) the arrears that Thomas "M." owed to Mary "M." of $14,112.16 on February 15, 2011 have been paid in full, upon the following terms and conditions:

(1)Thomas "M." shall make all current child support payments required to be made by Court order on time;

(2)Thomas "M." shall obey all local, state and federal laws;

(3)Thomas "M." shall report to a probation officer as directed by the Court or an employee of the Clinton County Department of Probation; and further Thomas "M." shall permit a probation officer of the Clinton County Department of Probation to visit him at his place of residence or elsewhere;

(4)Thomas "M." shall truthfully answer all reasonable inquiries made by any probation officer of the Clinton County Department of Probation;

(5)Thomas "M." shall obtain the prior approval of the Clinton County Department of Probation prior to making any change in employment;

(6)Thomas "M." shall work faithfully at suitable employment;

(7)Thomas "M." shall not purchase, lease or rent any of the following items (Nothing in these terms and conditions of probation shall be interpreted to require Thomas "M." to sell any item of property he currently owns. Furthermore, nothing in these terms and conditions of probation shall be interpreted as requiring Thomas "M." to breach any lease or rental agreement he has previously entered into; however, these terms and conditions do require Thomas "M." to terminate any leases or rentals which he has previously entered into if the termination of said agreements would not constitute a breach of contract):

(a)alcoholic beverages;

(b)cigarettes or any tobacco products;

(c)food or drink of any kind from a restaurant, bar or tavern;

(d)cell phone;

(e)television;

(f)computer;

(g)any electronic device, except medical equipment; [*4]

(h)DVD, DVR, digital music or digital movie;

(i)recreational vehicle;

(j)recreational licenses of any kind, including, but not limited to hunting and fishing licenses;

(k)movie tickets;

(l)recreational event tickets;

(m)airfare or train fare;

(n)health club membership;

(o)sporting goods of any kind;

(p)ammunition, guns or firearms;

(q)fishing equipment;

(r)camping or hiking equipment;

(s)jewelry;

(t)magazines;

(u)newspapers;

(v)cable or satellite television service;

(w)internet service;

(x)campground site;

(y)hotel room; and

(z)any interest in real property, except his primary residence;

(8)Thomas "M." shall not purchase, lease or rent, without the prior written permission of a probation officer at the Clinton County Department of Probation, any of the following items:

(a)clothing;

(b)furniture;

(c)appliances;

(d)motor vehicles;

(e)household materials for renovations, except emergency repairs; and

(f)books;

(9)Thomas "M." shall not enter into any contract or renew any contract, of any kind, without the prior written permission of a probation officer at the Clinton County Department of Probation (nothing in these terms and conditions of probation shall be interpreted to require Thomas "M." to breach any pre-existing contracts);

(10)Thomas "M." shall provide the Clinton County Department of Probation with written proof of all monies which Thomas "M." receives of any kind (including but not limited to earned income and gifts); and

(11)Thomas "M." shall provide the Clinton County Department of Probation with written receipts for all purchases and written documentation regarding all other transfers of money from Thomas "M." to any other party; and it is further [*5]

ORDERED, all parties shall take notice that: pursuant to section 1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in court, thirty-five days from the mailing of the order to the appellant by the clerk of the court, or thirty days after service by a party or attorney for the children upon the appellant, whichever is earliest.

SO ORDEREDENTER

Dated:Plattsburgh, New York

June 1, 2011

Hon. Timothy J. Lawliss

Judge of the Family Court