Matter of Martin Ademovic v Andrea M. Reid

Matter of Ademovic v Reid 2003 NY Slip Op 18569 [1 AD3d 899] November 21, 2003 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

In the Matter of Martin Ademovic, Appellant,
v
Andrea M. Reid, Respondent.

— Appeal from an order of Family Court, Livingston County (Alonzo, J.), entered July 3, 2001, which denied petitioner's objections to the order of the Hearing Examiner.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, and the matter is remitted to Family Court, Livingston County, for further proceedings on the petition in accordance with the following memorandum: Petitioner appeals from an order of Family Court denying his objections to the order of the Hearing Examiner. Petitioner sought downward modification of his child support and additional support obligations based on a change in circumstances, i.e., the former marital residence had been sold at foreclosure; one child had been emancipated; respondent's income had increased; and petitioner had been unemployed for some time. He appeared with his attorney before the Hearing Examiner on the return date of his petition and, when he asked to speak, the Hearing Examiner replied, "No." When his attorney suggested that petitioner speak, the Hearing Examiner stated, "Does he have any testimony he wants to give? We're not just going to sit here and make statements." The Hearing Examiner did not allow petitioner to respond and, instead, summarily denied petitioner's request for modification.

A hearing on a petition for modification of a support obligation need not follow any particular format (see Matter of Schwartz v Schwartz, 23 AD2d 204, 207 [1965]). We conclude, however, that the hearing herein was "inherently flawed" (Waby v Waby, 143 AD2d 506, 507 [1988]). Petitioner was not offered an opportunity to testify, nor was he permitted to present the sworn testimony of any other witnesses (see Family Ct Act § 433; Waby, 143 AD2d at 507). The cursory handling of this matter by the Hearing Examiner and her reliance on prior proceedings not contained in the record do not provide a substitute for the "meaningful hearing" to which petitioner is entitled (Schwartz, 23 AD2d at 207). We therefore reverse the order and remit this matter to Family Court, Livingston County, to conduct a hearing on the petition. Present—Pigott, Jr., P.J., Hurlbutt, Gorski and Lawton, JJ.