| Matter of Suffolk County Dept. of Social Servs. v Spinale |
| 2008 NY Slip Op 09805 [57 AD3d 681] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mIn the Matter of Suffolk County Department of Social Services, onBehalf of Charles Spinale, Jr., Respondent, v Charles Spinale, Sr.,Appellant. |
—[*1] Christine Malafi, County Attorney, Central Islip, N.Y. (Mary Ann Filosa of counsel), forrespondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from anorder of the Family Court, Suffolk County (Budd, J.), dated January 29, 2008, which denied hisobjections to so much of an order of the same court (Buse, S.M.), dated November 28, 2007, asdismissed his petition, inter alia, to vacate two money judgments of the same court (Buse, H.E.), datedSeptember 1, 1993, and September 26, 1994, respectively, in favor of Suffolk County Department ofSocial Services and against him for child support arrears and failed to set a date certain in its directiveto the Child Support Collection Unit to provide the father and mother with audits of their accounts.
Ordered that the order is reversed, on the law, without costs or disbursements, the father'sobjections are sustained, the petition is reinstated, and the matter is remitted to the Family Court,Suffolk County, for a hearing on the petition, for the setting of a date certain for the Child SupportCollection Unit to provide the father and mother with audits of their accounts, and for a newdetermination on the petition thereafter.
Charles Spinale, Sr. (hereinafter the father), and Terre Reidy (the mother) were married for sixyears and had two children. After their divorce in 1978, both children initially lived with the [*2]mother. The father was ordered to pay support for both children. In1991, the parties' daughter went to live with the father, and the mother was ordered to pay support forthe daughter. Pursuant to the order of support, the mother was to receive credit for the payments shewas ordered to make for the daughter's support, which were to be applied towards the support arrearsowed to her by the father. Two money judgments were subsequently entered against the father forsupport arrears.
In June 2007 the father filed an order to show cause and petition to vacate the money judgments,or in the alternative, for an order stating that the two money judgments had been satisfied by thepayments made by the mother to the Child Support Collection Unit (hereinafter the CSCU). In anorder dated November 28, 2007, the Family Court dismissed the petition on the ground that accountinghearings are not set forth in the Family Court Act as part of its statutory jurisdiction. The Family Courtdirected the CSCU to provide the parties with audits of their accounts, but did not direct the CSCU todo so by a date certain. The father filed objections to that order, and the Family Court denied theobjections on the ground that it lacked the authority to make a decision that affected the internalaccounting practices of the CSCU and to compel the CSCU to issue satisfactions of the moneyjudgments.
The father's contention that he was entitled to a hearing on his petition is correct. Although theFamily Court is a court of limited jurisdiction and is possessed only of those powers specificallyenumerated in the state constitution and by statute (see Matter of James A., 50 AD3d 787 [2008]), it does have jurisdictionto determine applications to modify or enforce judgments and orders of support (see NYConst, art VI, § 13; Family Ct Act § 454). Support magistrates are empowered to hear,determine, and grant any relief within the powers of the Family Court in support proceedings(see Family Ct Act § 439). Furthermore, pursuant to Family Court Act § 451, theFamily Court may modify, set aside, or vacate any order issued in the course of a support proceeding,although it may not reduce or annul child support arrears accrued prior to the making of an applicationfor a downward modification of the support obligation (see Matter of Dox v Tynon, 90 NY2d166, 172 [1997]; Matter of Brooks vPierre, 38 AD3d 656 [2007]; Dembitzer v Rindenow, 35 AD3d 791 [2006]).
Here, the father is not seeking to reduce or annul the arrears due. Rather, he is seeking credit forchild support payments due to him from the mother, which were to be applied towards the arrears andin satisfaction, in whole or in part, of the money judgments. It is not apparent from the record whetherthe mother's support obligation was applied to the arrears owed to her by the father and whether thefather's arrears were recalculated accordingly.
It is within the court's discretion to determine whether to proceed with a hearing on a motion tomodify, set aside, or vacate an order of support (see Matter of Manners v Manners, 238AD2d 815 [1997]; Matter of Morgan v Wright, 199 AD2d 931 [1993]). Here, the FamilyCourt improvidently exercised its discretion in denying the petition without a hearing to determinewhether the credits were properly applied, the exact amount of such credits, and whether those creditsare sufficient to account for the father's arrears, in whole or in part. Furthermore, the court should haveset a date certain for the audits of the parties' accounts. Skelos, J.P., Ritter, Carni and Dickerson, JJ.,concur.