| Matter of Renee XX. v John ZZ. |
| 2008 NY Slip Op 04018 [51 AD3d 1090] |
| May 1, 2008 |
| Appellate Division, Third Department |
| In the Matter of Renee XX., Appellant, v John ZZ.,Respondent. |
—[*1] Robert H. Ballan, Norwood, for respondent.
Cardona, P.J. Appeals (1) from an order of the Family Court of St. Lawrence County (Potter,J.), entered January 9, 2007, which, in a proceeding pursuant to Family Ct Act article 4, remittedthe matter to the Support Magistrate for a determination of petitioner's standing, and (2) from anorder of said court, entered May 18, 2007, which dismissed petitioner's application to directrespondent to pay child support.
After the child in this proceeding, born in 1988, claimed that respondent (hereinafter thefather) had inappropriate sexual contact with her when she was approximately 14 years old, aninvestigation was commenced by the St. Lawrence County Department of Social Services(hereinafter DSS). The investigation led to the filing of a child abuse petition by DSS against thefather. The child's mother (hereinafter the mother), maintaining that she did not believe herdaughter's allegations, agreed to DSS's request that a safety plan be implemented which wouldinclude having the child reside outside of her parents' home. Accordingly, petitioner, a familyfriend, agreed to have the child live in her home. An order to that effect was entered pursuant toFamily Ct Act § 1027 (b). Temporary orders of protection were also entered prohibitingthe father from any contact with the child. The mother was also ordered not to have anyunsupervised contact with the child nor allow the father any access. Although a trial on the childabuse petition was scheduled in September 2004, the matter was stayed because the father wasordered to active military duty in Iraq. Accordingly, the temporary orders of placement andprotection were extended.[*2]Subsequently, in June 2005, the mother moved in FamilyCourt for the return of the child; however, the parties to that motion later agreed to have the childremain with petitioner with some revisions in the visitation schedule. It is undisputed that,throughout this period, the mother was paying child support to petitioner. After the fatherreturned from active duty in 2006, the Family Ct Act article 10 abuse proceeding was adjournedin contemplation of dismissal. In connection therewith, an order of protection was issueddirecting the father to stay away from the child until her 18th birthday, which was to occur withinthe next few weeks.
Thereafter, petitioner commenced this proceeding against the father seeking child support.Notably, the only affirmative defense raised in the father's answer was constructiveemancipation. Following a fact-finding hearing, the Support Magistrate dismissed the affirmativedefense and ordered the father to pay, among other things, "$276.00 semi-monthly" in childsupport. In response, the father filed objections in November 2006 challenging the dismissal ofthe affirmative defense, certain rulings at the hearing and the amount of support awarded. FamilyCourt, in a January 2007 order, did not rule on the objections, instead, deciding, sua sponte, toremit the matter to the Support Magistrate to determine whether petitioner had standing to bringthis proceeding. Following another fact-finding hearing, the Support Magistrate found thatpetitioner was in loco parentis to the child and, therefore, had standing pursuant to Family Ct Act§ 422 (a).[FN*]The father filed objections renewing his prior challenges and challenging the SupportMagistrate's finding of standing. Family Court, in an order filed in May 2007, found thatpetitioner lacked standing and dismissed the application for support. Petitioner appeals from boththe January 2007 and May 2007 Family Court orders.
Petitioner principally contends that Family Court improperly raised the issue of standing suasponte without the father having raised that issue as an affirmative defense in his answer or filingany prior objection on that ground. We find petitioner's argument to be meritorious and,accordingly, reverse the appealed orders and remit the matter to Family Court for furtherproceedings.
Generally, a lack of standing is an affirmative defense that can be waived through the failureto raise it in an answer or motion to dismiss (see CPLR 3211 [e]; Dougherty v City ofRye, 63 NY2d 989, 991-992 [1984]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 241[2007]). Moreover, an order from a Support Magistrate is final and Family Court's review underFamily Ct Act § 439 (e) is tantamount to appellate review and requires specific objectionsfor issues to be preserved (see Matter ofSmith v Smith, 44 AD3d 1081, 1082 [2007]; Matter of Musarra v Musarra, 28 AD3d 668, 668 [2006]; Matter of Redmond v Easy, 18 AD3d283, 283-284 [2005]). While there are occasions when an issue of standing "may be [*3]characterized as raising questions of subject matter jurisdiction"(Lacks v Lacks, 41 NY2d 71, 74 [1976]; see Matter of Battenkill Assn. of ConcernedCitizens v Town of Greenwich Planning Bd., 156 AD2d 863, 865 [1989]; Matter ofEaton Assoc. v Egan, 142 AD2d 330, 334-335 [1988]) which can be raised at any time(see CPLR 3211 [a] [2]; [e]; Signature Health Ctr., LLC v State of New York, 42 AD3d 678,679 [2007]), this is true only under certain circumstances. Significantly, "[a]bsence ofcompetence to entertain an action deprives the court of 'subject matter jurisdiction'; absence ofpower to reach the merits does not" (Lacks v Lacks, 41 NY2d at 75).
Here, the father failed to raise the issue of standing in his answer or objections filed prior toFamily Court's remittal on that ground, thus, failing to preserve the issue. Furthermore, it was notproper for Family Court to raise and address the issue sua sponte. Family Court clearly has thecompetence to entertain an application for child support brought by an individual purportedlyacting in loco parentis on behalf of a dependent child (see Family Ct Act § 422[a]). The issue of whether a petitioner can appropriately fit within that standard goes solely to acourt's power to reach the merits and, thus, implicates an issue of standing that can be waived inthe absence of a timely defense or objection (see Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d at 244). Since Family Court herein addressed only the issue ofstanding and did not make any ruling as to the father's filed November 2006 objections, thematter will be remitted for that purpose.
Spain, Carpinello, Kavanagh and Stein, JJ., concur. Ordered that the orders are reversed, onthe law, without costs, and matter remitted to the Family Court of St. Lawrence County forfurther proceedings not inconsistent with this Court's decision.
Footnote *: This statute lists the class ofpersons who has standing to bring a proceeding for child support, including, among others, "[a]parent or guardian, of a child, or other person in loco parentis" (Family Ct Act § 422 [a];see Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, FamilyCt Act § 422; see also Matter of South Carolina Dept. of Social Servs. v JamesC.D., 119 Misc 2d 649, 650 [1983]; Kinsey v Lawrence, 100 NYS2d 597 [1950]).