Opinion
F-26802-15/15A
05-12-2017
In the Matter of a Proceeding for Support Under Article 4 & 5-B of the Family Court Act, Samantha LG., Petitioner, v. Maurice O., Respondent.
The attorney for State/Mother is NYC Assistant Corporation Counsel Kathleen Scahill, Esq., Law Department Family Court Bureau, 350 Jay Street, 9th Fl., Brooklyn, N.Y. 11201-2908, tel.: 718-724-5300; for Father is Crystal Screen, Esq., 8931 161st St # 301, Jamaica, NY 11432, Phone: (718) 725-2121.
The attorney for State/Mother is NYC Assistant Corporation Counsel Kathleen Scahill, Esq., Law Department Family Court Bureau, 350 Jay Street, 9th Fl., Brooklyn, N.Y. 11201-2908, tel.: 718-724-5300; for Father is Crystal Screen, Esq., 8931 161st St # 301, Jamaica, NY 11432, Phone: (718) 725-2121.
Papers Numbered Summons, Petitions, Affidavit & Exhibits Annexed 1 Objections & Exhibit Annexed 2 Rebuttal to Objections & Exhibits Annexed 3 Court Proceedings Transcripts 4 Upon the foregoing papers and for the following reasons, the Objections filed by Respondent Maurice O. (hereinafter "Father"), to a Modified Order of Support dated January 10, 2017, entered by Support Magistrate Mirna Mompelas, are denied.
By Order of Support dated October 16, 2006, the New York Support Collection Unit (SCU) ordered the Brooklyn Father to pay $64 per week to Petitioner Samantha G. (hereinafter "Mother"), a Florida resident, for their Child born in September 2004. On November 19, 2011, SCU issued an Adjusted Order of Support with an automatic Cost of Living Adjustment (COLA) increasing Father's child support obligation from $64 per week to $71 per week, effective January 27, 2012. Since there was no objection timely filed to that Adjusted Support Order, it automatically became effective and Father has mostly complied with the same. Nevertheless, by Petition dated August 21, 2015, Mother commenced the instant proceeding from Florida against Father in Kings County Family Court pursuant to the Uniform Interstate Family Support Act (UIFSA) (see Family Court Act, Art. 5-B, § 580-301[b]), seeking to modify and increase the Adjusted Support Order, alleging that her earnings have substantially decreased due to her suffering a personal injury, while the needs of the Child have significantly increased.
Father appeared pro se on December 8, 2015, while a New York City Assistant Corporation Counsel appeared representing the initiating State of Florida on behalf of Mother (see Family Court Act § 571[2]). The Magistrate directed Corporation Counsel to bring all required financial documents from Mother, and ordered Father to provide his Financial Disclosure Affidavit, 2014 W2 statements and recent pay stubs as an EMS Technician for Nassau County's TransDev Services, Inc. Both parties were additionally directed to provide their 2015 tax returns and W2 statements. Based on the information so far gathered, the Magistrate (Mompelas, S.M.) entered an Order Temporarily Modifying an Order of Support dated December 8, 2015, increasing the child support amount payable to Mother to $250 per week, and adjourned the case to March 29, 2016 for further proceedings.
On March 29, 2016, Corporation Counsel as well as Father and his attorney, Crystal Screen, Esq., appeared and informed the Magistrate that Father had left his Nassau County employment in favor of a new position with the New York City Transit Authority (NYCTA) on February 8, 2016. Father submitted all his financial documents, and Corporation Counsel submitted Mother's Financial Disclosure Affidavit and the first page of her 1040 tax return. Dissatisfied with this information, Father's attorney moved for a dismissal of Mother's Modification Petition for failure to prosecute, given her absence and alleged lack of financial disclosure. Essentially denying the motion, the Magistrate adjourned the case and marked it final for Corporation Counsel to submit Mother's 2015 W2 statement and tax returns, as well as her pay stubs. Magistrate Mompelas again modified the Temporary Order of Support by reducing it to $301 biweekly and adjourned the case to September 6, 2016, and subsequently to January 10, 2017.
On January 10, 2017, Corporation Counsel, Father and his attorney submitted their financial documents, and Corporation Counsel submitted a notarized letter from Mother, dated June 11, 2016, wherein she affirmed that she was unemployed, but looking to start working soon, while receiving "food stamps monthly of $511" and being assisted by her mother "until I get back on my feet." Father's attorney objected to Mother's failure to appear telephonically or otherwise and to her documentary evidence on the grounds that they were non-competent copies and that Mother's letter was hearsay and self-serving. In summation, Father made an application for him to be credited for paying child support to an after-born child, Ayden Okan (DOB June 26, 2010), not directed by Court order, but by an alleged agreement with that child's mother, Sharon Little. Contained in the Court's file are two notarized handwritten letters, dated October 13, 2015 and September 2, 2016, from Ms. Little stating that Father provides support to her for Ayden in the sum of $350 per month. Father additionally requested a deviation from the Child Support Standards Act (CSSA) (see Family Court Act § 413), based on the alleged parental alienation by Mother and the extraordinary travel expenses incurred by Father for visits to and from Florida up to 2014. After the hearing, the Magistrate reserved decision.
According to her Findings of Fact dated January 18, 2017, the Magistrate found a sufficient change of circumstances to warrant an upward modification of the Support Order and, since Father refused to provide the financial information of the non-subject child's mother and her resources were indeterminable, she declined to credit Father for paying non-court ordered support to the non-subject child. The Magistrate also noted that Father illogically requested that the court consider his travel expenses even though he has not incurred any travel expenses or provided any relevant proof of the same. The Magistrate applied the CSSA after determining that Mother's imputed and adjusted gross income was $29,656.32 annually and that Father's adjusted gross income based on his 2015 tax return was $45,009.43 annually. As a result, by Order Modifying Order of Support dated January 10, 2017, the Magistrate granted the Petition upwardly modifying the child support payable by Father for the subject Child to $292.92 biweekly, effective August 21, 2015.
On February 28, 2017, Father filed Objections to the Modified Order of Support on the grounds that the Magistrate improperly proceeded on Mother's Modification Petition without her presence despite his objections and the lack of efforts by Corporation Counsel to have her appear by phone, in person or by other means, in contravention of Confrontation Clause principles elucidated in the seminal case of Crawford v Washington (541 US 36 [2004]). Father further objects to Mother's documents being entered into evidence pursuant to Family Court Act § 580-315(e) over hearsay objections which resulted in the Magistrate weaving together a financial picture with paltry and contradictory submissions, and by failing to credit the evidence presented regarding his financial support of his other child. Finally, Father objects to the calculation of retroactive support to the filing date of the Petition based on Father's current employment, without considering his prior remuneration as a TransDev employee at the inception of the case. Said Objections have been submitted to the Undersigned for review, and Corporation Counsel timely filed her Rebuttal. Following its review, the Court disagrees with Father.
Pursuant to UIFSA — which governs an array of child support issues involving parties from different jurisdictions, New York State maintains a "continuing, exclusive jurisdiction over a child support order as long as this state remains the residence of the obligor, the individual oblige, or the child" (Family Court Act §§ 580-205[a][1]; see Matter of Deazle v Miles, 77 AD3d 660, 661 [2nd Dept. 2010]; Matter of Parezan v Parezan, 285 AD2d 59, 64 [2nd Dept. 2001], lv denied 97 NY2d 700 [2001]). Under the applicable New York law here (see Family Court Act § 580-303[1]), either party has the right to seek a modification of the child support order upon a showing of "a substantial change in circumstances; or * * * that three years have passed since the order was entered, last modified or adjusted; or * * * that there has been a change in either party's gross income by 15% or more since the order was entered" (Family Court Act § 451; see Janice S. v Christopher S., 40 Misc 3d 1235[A] [Sup Ct, Orange County 2012]).
Cases filed under UIFSA are unique in the sense that special rules of evidence and procedure apply given the concurrent jurisdictions (see Family Court Act §§ 580-205[1], 580-316). For instance, "[t]he physical presence of a nonresident party who is an individual in a tribunal of this state is not required for the establishment, enforcement or modification of a support order or the rendition of a judgment determining parentage" of a child (Family Court Act § 580-316[a] [emphasis added]). The Magistrate has broad discretion to excuse the presence of the petitioner, as not statutorily required (see id.; Matter of Karen B. v Julio Frederic C., 217 AD2d 658 [2nd Dept. 1995] [Father's presence not needed to contest an HLA blood test indicating a 99.52% paternity probability], but see Matter of Diana A. v Gary J.G., 192 AD2d 706 [2nd Dept. 1993] [Mother's presence required at paternity hearing]; Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Interstate Family Support Act § 580-316, at 353 [petitioner's presence usually excused, but may be necessary where genetic testing not presumptively conclusive or in equitable estoppel situations]).
For similar reasons, a sworn or acknowledged "affidavit, a document substantially complying with federally mandated forms or a document incorporated by reference in any of them, which would not be excluded under the hearsay rule if given in person, is admissible in evidence" (Family Court Act § 580-316[b]). "Documentary evidence transmitted from another state to a tribunal of this state by telephone, telecopier or other means that do not provide for an original writing may not be excluded from evidence on an objection based on the means of transmission" (Family Court Act § 580-316[e]). In order to effectuate these procedural rules, Family Court has broad discretion in regulating financial disclosure in support proceedings (see Matter of Spoor v Spoor, 276 AD2d 887 [3rd Dept. 2000]).
Applying the foregoing principles to the instant matter, Father's Objections to the Magistrate's findings and upward modification of his child support fail. Not only did the Magistrate correctly proceed to a de novo inquiry into the parties' finances given the fact that the latest Adjusted Order of Support was last adjusted more than three years ago by the 2012 COLA increase, but she appropriately used her discretion in upwardly modifying the child support amount after admitting documentary and other evidence showing Father's increased income and Mother's diminished earning capacity. Contrary to Father's initial contention, the Magistrate providently exercised her discretion in determining that Mother's appearance was "not [legally] required" under the extant circumstances (Family Court Act § 580-316[a]), and that her sworn correspondence and financial documents transmitted from the Florida tribunal were properly admitted into evidence over his objection (see id. §§ 580-307[b][3], 580-316[b]). The caselaw relied upon by Father does not call for a different conclusion.
In Crawford v Washington (541 US at 53-54, 59), the U.S. Supreme Court determined that a criminally accused's rights under the Sixth Amendment's Confrontation Clause were violated by the admittance into evidence of a testimonial statement without the presence and cross-examination of the declarant (see People v Rawlins, 10 NY3d 136, 146-147 [2008]). Aside from the fact that the instant proceeding is a simple UIFSA child support proceeding and not a criminal matter jeopardizing the liberty rights of an accused, Mother's documentary evidence and sworn statement are not accusatory testimonial statements against Father or violative of his constitutional rights under Crawford. They merely explained Mother's unemployment, financial circumstances and expenses without any accusation against Father, and her absence did not contravene his Confrontation Clause rights in any way (see People v Rawlins, 10 NY3d at 147). As such, there was sufficient documentary and testimonial evidence to ascertain that Father's and Mother's gross incomes, derived from both imputed as well as self-employment income, and apply the CSSA to those amounts.
The U.S Constitution's Sixth Amendment guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him."
Father next argues that the Magistrate erred in calculating an Order of Support back to the filing date of the Petition based on Father's current employment, instead of calculating a two-step order taking into consideration his prior employment in Nassau County and then his current employment with the NYCTA after February 2016. Contrary to Father's argument, the Magistrate solely utilized Father's 2015 tax return from his Nassau County employment in calculating the Support Order. It is clear that his current employment at the NYC Transit was not factored into the calculation of the Support Order, which may have arguably resulted in a higher child support amount. Although Father may have paid more than the CSSA during the pendency of the proceeding, he shall be credited by the Support Collection Unit for all payments he made under the Temporary Orders back to the filing date (see Family Court Act § 440[1][a]). As such, the Court finds that the Magistrate did not err in refraining from calculating a two-step Order of Support, or in crediting Father for payments made under the Temporary Orders.
Father's NYC Transit Authority pay stub dated 12/29/16 reflects year to date gross income of $48,548.07 for 47 weeks. Thus, Father's annual Transit salary appears to be $1,032.94 per week ($48,548.07/47weeks) or $53,712.76 per year. --------
Nor does Father's final contention that the Magistrate abused her discretion in declining to credit him for his alleged support of another child have any merit. Pursuant to Family Court Act § 413(1)(b)(5)(vii)(D), only "amounts actually paid by a parent pursuant to a court order or written agreement for the support of a child who is not the subject of the proceeding at issue shall be deducted from the parent's income" in determining the child support obligation (Matter of Ranallo v Ranallo, 301 AD2d 605 [2nd Dept. 2003]). Moreover, the court may decline to apply the non-custodial parent's full share of the total support where the application of the full share of total support is unjust and inappropriate (see Family Court Act § 413[1][f]). One of the factors to be considered in determining whether the full amount would be unjust or inappropriate is the needs and the financial resources available to the non-subject children compared to the subject children (see Family Court Act § 413[1][f][8]; Matter of Hudgins v Blair, 74 AD3d 1199, 1201 [2nd Dept. 2010]).
At the hearing, Father presented notarized letters from the non-subject child's mother stating that Father provides her with child support totaling $305 per month for the other child. Aside from the fact that this is not a valid "written agreement" executed by both Father and Ms. Little, Father provided no proof that he was "actually paying" that child support for the non-subject child (see id. at 1200). Nevertheless, Family Court Act § 413(1)(b)(5)(vii)(D) should only apply when there are existing orders at the time of the entrance of the de novo Support Order. The initial Support Order herein was entered in October 2006, prior to the 2010 birth of the non-subject child Ayden. There is no statutory provision permitting a non-custodial parent to obtain an offset for a subsequent child support obligation. That is, Father may not receive a deduction for Ayden in this instance.
Moreover, according to the Magistrate's Findings of Fact, Father refused her repeated requests to provide the financial information of the non-subject child's mother. As such, the Magistrate could not consider the financial resources available to the non-subject child as compared to the subject Child (see Matter of Hudgins v Blair, 74 AD3d at 1201). Great deference should be given to the determination of the Support Magistrate as she is in the best position to hear and evaluate the evidence as well as the credibility of the witnesses (see Matter of VanBeers v Van Beers, 129 AD3d 1039 [2nd Dept. 2015]). There is no abuse of discretion or impropriety with the Magistrate's record-supported findings.
In accordance with the foregoing, the Court finds that the Magistrate did not err in modifying the Order of Support and Father's Objections are hereby denied.
This constitutes the decision and order of this Court.
E N T E R:
Dated: May 12, 2017 Brooklyn, New York J.F.C. NOTICE: 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 TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.