Matter of TO v JS

[*1] Matter of TO v JS 2008 NY Slip Op 50598(U) [19 Misc 3d 1108(A)] Decided on March 25, 2008 Family Court, Oswego County Roman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 25, 2008
Family Court, Oswego County

In the Matter of a Proceeding for Support under Article 4 of the Family Court Act, TO, Petitioner,

against

JS, Respondent.



F-00715-96/07E

David J. Roman, J.

On January 23, 2008, Petitioner filed specific written Objection(s) to an Order(s) of Support Magistrate Samuel J. Sugar, entered on January 4, 2008. The Court has not received any Rebuttal from Respondent.

These proceedings were originally commenced by TO, on August 23, 2007, upon the filing of a violation petition wherein she alleged that Respondent had failed to abide by the prior order of support, dated October 29, 2004. An initial appearance was scheduled for September 13, 2007. TO appeared before Mr. Sugar on that date with her attorney. However, JS did not appear. The proceedings were adjourned until November 1, 2007 to allow the Sheriff's Department sufficient time to personally serve Respondent with process.

Both parties were present when the case came on to be heard, on the latter date. TO re-appeared with her attorney, and Respondent was now present, appearing pro se; however, he did request the assignment of an attorney. Therefore, the case was adjourned for a review on November 14, 2007, to allow Mr. Sugar an opportunity to review Respondent's financial information to determine whether or not he qualified for assigned counsel. The notes from this appearance also indicate that Mr. Sugar intended to schedule a pre-trial conference if JS qualified for an assigned attorney, and a hearing, if not.

The docket notes for November 14th indicate that JS did in fact qualify. Attorney Heather Nickolas, Esq. was assigned, and a Notice of Appearance was mailed to both sides, scheduling the conference for December 12, 2007. [*2]

Thereafter, on December 10, 2007, an Amended Petition was filed under docket no. F-00715-96/07F. In addition to alleging Respondent failed to pay child support, TO also now alleged that Respondent refused or otherwise failed to pay the children's medical expenses.

On December 12, 2007, both parties appeared with their counsel, that is, Heather Nickolas, Esq. for JS, and P. Michael Shanley, Esq. for TO. Mr. Sugar noted the filing of an amended petition, under docket no. F-00715-96/07F, and the fact that there were no medical bills attached thereto. Mr. Sugar directed the submission of such information and scheduled a report date, on December 24, 2007, so that he could review the file and ascertain whether Petitioner had complied. Provided the medical information was so provided, then the case was to be continued to January 24, 2008. In regard to the original violation petition, such case was scheduled for a hearing on January 4, 2008.

On December 24, 2007, the proceedings filed under docket no. F-00715-96/07F came on for an in-chambers review. Mr. Sugar dismissed such petition without prejudice. An order was entered on January 2, 2008. On January 4, 2008, the proceedings filed under docket no. F-00715-96/07E came on for the hearing that had been scheduled back on December 12, 2007. Ms. Nickolas appeared with Respondent; however, neither Mr. Shanley, nor TO appeared. Based upon the default in appearance, Mr. Sugar dismissed such petition "with prejudice." An order was entered on January 4, 2008. Petitioner has filed the instant Objection(s) therefrom.

As a general rule, the Support Magistrate's Findings should not be rejected unless they are contrary to the weight of the credible evidence or in error as a matter of law" (see Matter of Weiner v. Weiner, 97 Misc 2d 920 (Monroe Co. Family Ct. 1979); Matter of McCarthy v. Braiman, 125 AD2d 572 (2nd Dept. 1986)). Where a party seeks to challenge an order entered upon their default, the said party must generally file a motion before the support magistrate under Rule 5015 of the Civil Practice Law and Rules, demonstrating both a reasonable excuse for his/her non-appearance, and a meritorious claim (see Mendalino v. Johnson, 162 AD2d 758 (3rd Dept. 1990)).

The Court did examine the underlying proceedings and makes the following Findings of Fact: the filing of an amended petition does not commence a separate distinct proceeding, despite the fact that such pleading may be assigned a separate docket number for purposes of the Universal Case Management System ("UCMS"). Therefore, once the pleadings were filed and served upon the adversary, and the arraignment process has concluded, the original pleadings should be dismissed. Here, Mr. Shanley filed an Amended Petition, on December 10, 2007. The arraignment process took place on December 12, 2007. Therefore, the original pleading should have been deemed dismissed without prejudice, and the filing date of the Amended Petition should have been made retroactive to the date of filing of the original petition, August 23, 2007.

The Court finds no sound basis to continue these two petitions as distinct causes of action. Both applications sought a violation finding for failure to pay child support. The amended pleading added a second claim against respondent for failing to pay medical expenses. The bifurcation of these proceedings is contrary to the concept of judicial economy, and [*3]burdensome to the parties, as well as adds to the relative costs associated with prosecuting and defending the case by increasing the number of appearances. Consequently, the Court is reinstating the Amended Petition, docket number F-00715-96/07F, retroactive to August 23, 2007, and remanding same for further proceedings. The Court notes that the parties are scheduled to be before Mr. Sugar, on April 4, 2008, for a hearing to address JS's petition, filed on January 10, 2008, seeking a downward modification of his child support obligation. It would appear appropriate to have all matters heard at the same time.

Accordingly, and for the reasons set forth herein, it is hereby,

ORDERED, that the Objection is hereby GRANTED, and it is further,

ORDERED, that the Order of Dismissal, entered on January 2, 2008, and the subsequent Order of Dismissal, entered on January 4, 2008, to the extent inconsistent, are hereby vacated, and it is further

ORDERED that the Amended Petition, filed on December 10, 2007, under docket number F-00715-96/07F, is hereby retroactively reinstated to the date of filing of the original petition, August 23, 2007, and same is hereby remanded to the Support Magistrate for further proceedings.

ENTER:

March 25, 2008

at Oswego, New York______________________________

Hon. David J. Roman

Judge of the Family Court