Opinion
F-00399-09/14D
08-24-2017
In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, S. G., , Petitioner, v. B. G., Respondent.
Attorney for Respondent: Larry B. Margolis, Esq. 2102 Avenue T Brooklyn, NY, 11229-3634 (347) 889-1890 Attorney for Petitioner: William Hoffman, Esq. 32 Court St Ste 507 Brooklyn, NY, 11201-4404 (718) 702-2222
Attorney for Respondent: Larry B. Margolis, Esq. 2102 Avenue T Brooklyn, NY, 11229-3634 (347) 889-1890 Attorney for Petitioner: William Hoffman, Esq. 32 Court St Ste 507 Brooklyn, NY, 11201-4404 (718) 702-2222 Javier E. Vargas, J.
Papers Numbered Summons, Petitions, Affidavit & Exhibits Annexed 1 Objections to Support Magistrate's Order/Findings & Exhibits 2 Replies to Respondent's Objections 3, 4 Court Proceedings Transcripts 5 New York City Office of Child Support Enforcement Accounts 6 Order of Disposition, Findings of Fact & Underlying Hearing 7
Upon the foregoing papers and for the following reasons, the oral application by Petitioner S. G. (hereinafter "Mother"), for the confirmation of Support Magistrate Elizabeth Shamahs' Order and Findings of Fact of willfulness and penalty recommendations, is granted in part and the Findings are confirmed as provided hereinbelow.
Respondent B. G. (hereinafter "Father") and Mother were married in May 1993, and have two children of their marriage, now emancipated. During the marriage, Father was a successful diamond dealer and jeweler making around $220,393 per year, while Mother was a homemaker and caretaker of the children. Unfortunately, marital difficulties eventually ensued, prompting the parties to formally separate by Separation Agreement duly executed by them with their respective counsel on May 29, 2002, wherein, inter alia, they agreed to retain each of their own separate residences and other marital assets. Shortly thereafter, Mother filed for divorce against Father in Kings County Supreme Court. By Judgment of Divorce (Hewitt, S.R.) dated August 5, 2002, the parties' marriage was dissolved, they were to share joint custody of their children with Mother as the physical custodian, their assets were equitably distributed, and Father was ordered to pay child support to Mother in the amount of $4,004.60 per month and to pay for the Children's insurance, tuition and other educational expenses.
Father complied with his child support obligations until 2008, when he was unexpectedly arrested for fraud in a "massive gem heists", and eventually incarcerated for related charges between 2008 and May 2011. Upon his release in 2011 until May 2014, Father apparently cooperated with the United States government and was purportedly placed in a safe house by the U.S. Witness Protection Program, under which he assumed a new identity in another state. According to Father, he was unable to earn any income for a period of four years while in the Program. Although Father made at least one unsuccessful attempt to lower his support obligation in 2009, the 2002 Judgment of Divorce Order of Support continued in effect throughout his incarceration and his Witness Protection period. During this time, Father failed to stay current with his child support obligation to Mother.
As a result, by Violation Petition filed in Kings County Family Court on June 25, 2014, Mother commenced the instant proceeding against Father alleging that "he has failed to obey the" Support Order since May 2013, accumulating substantial arrears of over $291,117.38. After numerous court appearances and proceedings before Support Magistrate Shamahs, she presided over an evidentiary hearing from February 3, 2016 to December 6, 2016. At its conclusion, by Order and Findings of Fact dated December 6, 2016, the Family Court (Shamahs, S.M.) found Father in willful violation of the Divorce Judgment Child Support Order pursuant to Family Court Act § 454(3), reasoning that:
[Father] claimed he could not pay the court-ordered amount of support due to his financial circumstances. However, he lacked evidence of his financial circumstances. He has hidden behind the "constrains of the Witness Protection Program" to avoid giving the Court his whereabouts or at least evidence of his employment and earnings. Yet, he admitted that he has not been in supervised relief with the U.S. Marshals Service since May 2014. Moreover, he has admitted to working during the pendency of this action for eight to nine months in 2014 and then from April 2015 to the present. Yet, he only made two payments of $100.00 each in 2014, and paid a total of $6,675.26 from April 2015 to November 2016. No payments were posted with SCU from April 2015 through November 2015. He testified to other living expenses he has made payments towards. "The proof that [Father] is employed may be prima facie evidence of his ability to make
support payments."
The Magistrate calculated that Father owed arrears totaling $439,394.80, and entered a fifth Money Judgment against him and in Mother's favor under Family Court Act § 454(2)(a) in the amount of $207,755.84. Finally, the Magistrate referred this matter to the undersigned Judge for a confirmation of the willfulness findings with a recommendation that Father serve a period of six months of incarceration, unless he posts a purge amount of $109,846.20.
Pursuant to that referral, on January 19, 2017, Mother and the parties' counsel appeared before the undersigned with Father appearing from an undisclosed location by telephone, allegedly because of his continued enrollment in the Witness Protection Program. Mother's counsel argued either for incarceration or for the payment of the total purge amount by Father. In opposition, Father reiterated that he was self-employed making only over $27,000 a year and preposterously offering to pay Mother $285.49 per month — a fraction of his court-ordered support obligation — for his almost half-a-million dollars in arrears. Father also raised the issue that his arrears should be reduced for his purported portion of the sale proceeds of the "marital residence" which Mother had recently sold for almost a million dollars. These conclusory arguments were offered to the undersigned despite the recent and specific Findings of Fact against him on those regards. At the close of this initial proceeding, this Court was unconvinced of Father's claims of indigence and ordered him to pay $15,000 toward the child support arrears on or before the adjourned date of February 28, 2017, or face immediate incarceration.
When the parties and counsel returned on that date, Father claimed that he mailed two checks, one personal check in the amount of $2,522, and a cashier's check the amount of $12,478 to the New York State Processing Unit in Albany. Contrary to the specific instructions, the checks had no identifying account information necessary for processing, and were payable directly to Mother instead of the Support Collection Unit as per the Magistrate's Order. This Court decided to continue monitoring Father's compliance with its orders and issued a new Order for Father to pay $2,000 by certified check or money order to the Support Collection Unit on or before the next court date or face incarceration.
The parties appeared with counsel on May 1, 2017, advising the Court that Father had filed Objections to the Magistrate's Order on February 10, 2017. By Short Form Order dated April 3, 2017, the Family Court (Williams, J.) denied his Objections reasoning that "the arguments placed within this objection are better suited to be argued in front of Magistrate Shamahs on a motion to reargue or in front of [the instant Judge] for the confirmation hearing." Upon consent of counsel and in favor of judicial economy, this Court elected to use the same Objection papers and arguments submitted under the February 2017 Objection as well as any other relevant contention to rule on the instant confirmation hearing. As per the NY Child Support Collection Unit's Account Statement, Father had complied with the Order and paid $2,000 prior to his appearance. The Court further directed Father to pay $1,000 by the next court date or face incarceration.
Parties and counsel appeared on June 5, 2017, at which date, Mother informed the Court that she no longer sought Father's incarceration, but rather his prompt payment of the arrears. At that time, the Support Collection Unit's records reflected that Father paid $1,000 as ordered, but that outstanding arrears still totaled $461,475. The Court ordered Father to pay an additional $1,200 by money order or cash to the Support Collection Unit or Mother and to provide proof of same prior to the next court appearance. On that date, Counsel submitted to the undersigned Father's Objections and additional arguments against the Magistrate's Order and Findings and Mother's Replies in opposition, and the Court reserved decision. In his papers, Father reiterates his tired arguments that he was only making $27,000 a year in a managerial position, that he should only pay 17% of that income in child support to the tune of $285 per month, and that he should be credited with half of the sales proceeds from Mother's sale of the "marital residence." In Reply, Mother requests Father to pay the purge amount in its entirety and for this Court to confirm the Magistrate's findings. No additional evidentiary hearing was requested by either party (see Matter of Becker v Guenther, 150 AD3d 985 [2nd Dept. 2017]).
While the application was sub judice, Father's Petition for a downward modification of his child support payments, dated January 18, 2017, claiming that child support should be zero given the upcoming emancipation of his younger child, was granted in part and denied in part. By Order Modifying and Terminating Order of Support (Shamahs, S.M.) dated June 15, 2017, the Magistrate granted Father's Petition, reduced his child support obligation to $3,122 monthly between the period of June 17, 2015 and January 18, 2017 — based on his older Child's emancipation, and terminated the Support Order effective May 28, 2017, upon the 21st birthday of his younger Child. However, by separate Order and Findings of Fact (Shamahs, S.M.) dated June 20 2017, the Magistrate denied a downward modification between January 18, 2017 and May 28, 2017, because Father had again "failed to present sufficient evidence of his financial circumstances." Having examined the record, all arguments and documentary evidence, this Court agrees with the Magistrate and Mother.
Family Court Act § 453(3)(a) provides that a parent's evidence of "a failure to pay support, as ordered, shall constitute prima facie evidence of a willful violation" (see Matter of Powers v Powers, 86 NY2d 63, 69 [1995]; Matter of Tordella-DiPalma v DiPalma, 128 AD3d 709, 710 [2015]; Matter of Gillison v Gillison, 122 AD3d 926, 927 [2014]). Once a prima facie showing of willfulness has been made, the burden shifts to the respondent-payor to offer competent, credible evidence of his inability to make the required payments (see Matter of McMinn v Taylor, 118 AD3d 887 [2nd Dept. 2014]). Upon a willfulness finding, "the court shall order respondent to pay counsel fees" for the petitioner, and may "commit the respondent to jail for a term not to exceed six months," require him/her "to participate on a rehabilitative program," or place him on probation (Family Ct Act § 454[3]; see Matter of Martin v Cooper, 96 AD3d 849, 851 [2012]; Matter of Barrett v Barrett, 82 AD3d 974 [2011], lv denied 17 NY3d 703 [2011]). Moreover, it is also settled that great deference should be given to a determination of the Support Magistrate, who is in the best position to assess the credibility of the witnesses and the evidence proffered (see Matter of Manocchio v Manocchio, 16 AD3d 1126 [2005]; Matter of Department of Social Servs. v Henderson, 269 AD2d 395 [2000]).
Applying these principles to the matter at bar, this Court confirms the Magistrate's Findings of Fact of willfulness as amply supported by the record. Upon Mother's prima facie showing of Father's failure to pay child support as ordered for several years, Father has failed to meet his burden of offering credible — or, indeed, any — evidence of his inability to make the required child support payments (see Matter of Musarra v Musarra, 28 AD3d 668, 669 [2006]), which current total amount to an exorbitant $461,475. At the hearing, the Mother established, by clear and convincing evidence, that Father willfully and deliberately had situated himself in a position to have limited income by claiming that he was still in the Witness Protection Program despite its apparent termination in 2014, and that he failed to make reasonable efforts to obtain additional employment or any loans or advances to meet his child support obligations (see Matter of Seleznov v Pankratova, 57 AD3d 679 [2008]; Matter of Teller v Tubbs, 34 AD3d 593 [2006]). To the contrary, the Father candidly asserted on the record that his income, and other financial help he received from his family, were specifically going to pay for his current expenses. He therefore willfully refused to even make a dent in the substantial arrears accumulated toward his Children's support.
The Court has afforded Father several opportunities, by delaying incarceration and imposing payment conditions (see Family Ct Act §§ 454[3][b], [c]), which - to his credit - has been complied with. Since December 2016, Father has paid a total of $19,456.38 as of August 8, 2017. Nevertheless, Father has consistently and contumaciously failed to keep current with the Child Support Order, even after it was reduced to $3,122 per month (see Matter of Columbia Support Collection Unit v Risley, 122 AD3d 1097, lv granted 24 NY3d 915 [2015]). True to form, Father had only made minimal payments between 2014 and 2016, and voluntarily chose to pay for other expenses. His conclusory claims of limited income and employment do not appear credible. Even if the Father were to be receiving public assistance, that would not establish an inability to pay child support and would not relieve him from his obligation to provide support for his Children (see Matter of Grant v Green, 293 AD2d 540 [2002]; Matter of Commissioner of Social Servs. v McDonald, 245 AD2d 506 [1997]).
Nor is there any merit to Father's argument that his child support arrears should be reduced by applying a portion of the sale proceeds of Mother's residence. Equitable distribution between the parties was resolved by the Judgment of Divorce of August 2002, over 15 years ago! Domestic Relations Law §§ 236[B][5][a, c, d] and 240-b explain that equitable distribution comprises a one-time distribution of the marital property acquired by the parties during the marriage, while child support is an ongoing obligation mostly based on the parties' yearly income and salary (see Domestic Relations Law §§ 236[B][7]). As the Magistrate carefully explained, the parties' Separation Agreement specifically provided that each party were to retain his or her own real estate property after the divorce and, consequently, retain any proceeds made from their sale.
Finally, the opaqueness with regard to his finances demonstrated by Father during the Magistrate's proceedings have continued unabated before the undersigned. Not only has Father been contumaciously reluctant to provide actual evidence of his finances, but he has shown a continued disregard for the court-ordered support by engaging in self-help and unilaterally reducing the support obligation to $285 per month. Such behavior reveals a total lack of respect for the rule of law, his legal obligations to his Children and to this Court. Given Father's essentially conceded willfulness in failing to pay child support, there is a real concern about the absence of the deterrent effect of imprisonment. Nonetheless, this Court will honor Mother's withdrawal of her imprisonment request, but will require Father to make significant monthly payments of $2,000 in order to reduced his exorbitant arrears. Contrary to his protestations, this amount does not appear to be far off the $100,000 in five years which Father repeatedly offered Mother to settle the matter.
In accordance with the foregoing, Mother's application to confirm the Magistrate's Findings of Fact and Order is granted only to the extent that Father is declared to be in willful violation of the Support Order, and is hereby placed on probation with the New York City Department of probation whereby he is hereby ordered to pay the sum of $2,000 per month in order to satisfy the accumulated arrears to Mother. This constitutes the decision and order of the Court. ENTER: Dated: August 24, 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.