| Anderson v Harris |
| 2009 NY Slip Op 09066 [68 AD3d 472] |
| December 8, 2009 |
| Appellate Division, First Department |
| Tonya Anderson, Respondent, v Hal H. Harris,Appellant. |
—[*1] Tonya Anderson, respondent pro se.
Order, Family Court, Bronx County (Andrea Masley, J.), entered on or about July 11, 2008,which denied respondent's objections to an order of the Support Magistrate, dated April 21,2008, dismissing with prejudice respondent's supplemental petition for a downward modificationof his child support obligation and upwardly modifying his child support obligation to $342biweekly, and which brings up for review an order, same court (Marian R. Shelton, J.), enteredon or about January 17, 2006, which, inter alia, (1) denied respondent's objection to a October11, 2005 ruling of a Support Magistrate denying his motion to vacate his March 3, 2005 default,and (2) remanded this matter for a hearing to determine child support based on the child's needsor standard of living, whichever was higher, unanimously modified, on the law and the facts,respondent's objections granted to the extent of remanding this matter to Family Court for arecalculation of his income, to include any reduction due to the amount of court-ordered childsupport provided to his two sons who are not subjects of the instant action, and to determinewhether his income would fall below the poverty level, and otherwise affirmed, without costs.Order, Family Court, Bronx County (Lori Sattler, J.), entered on or about January 15, 2008,which denied respondent's objection to a decision, dated July 12, 2007, denying his motion torecuse Support Magistrate Robert Mulroy, unanimously affirmed, without costs. Order, samecourt (Andrea Masley, J.), entered on or about March 17, 2009, which denied respondent'sobjection to the Support Magistrate's October 3, 2008 decision and fact-finding and October 8,2008 order to the extent that it directed a money judgment in favor of petitioner, and dismissedas premature his objection to the extent that it challenged the finding of a willful violation of andthe recommendation of incarceration, unanimously affirmed, without costs.
Family Court properly ordered child support to be based upon the needs or standard of livingof the child, whichever was greater (see Family Ct Act § 413 [1] [k]). Respondentdefaulted by appearing more than two hours late on March 3, 2005. The Support Magistratereasonably concluded that respondent's default was not excusable (see CPLR 5015 [a][1]). Respondent's claim that he did not have to appear until 11:30 a.m. is refuted by petitioner'sadjourn slip indicating that the March 3 hearing was for 9:15 a.m., and respondent failed toproduce his adjourn slip.
Respondent objected on the ground that the April 21, 2008 supportorder would reduce his income below the poverty level (see Family Ct Act § 413[1] [d]), but [*2]Family Court failed to determine respondent'sincome. If one accepts respondent's tax return for 2005 (the most recent tax return before theApril 2008 support order, as respondent requested extensions for his 2006 and 2007 returns), hewould be below the poverty level after paying $342 biweekly ($8,892 per year). Neither theSupport Magistrate nor Family Court accepted the income shown in the tax return, which theywere entitled to do (see e.g. Matter ofChildress v Samuel, 27 AD3d 295, 296 [2006]). While exercising its discretion toimpute income to respondent (see e.g. Family Ct Act § 413 [1] [b] [5] [v]), thecourt was "required to provide a clear record of the source from which the income is imputedand the reasons for such imputation" (Matter of Kristy Helen T. v Richard F.G., 17 AD3d 684, 685[2005]) and "the record is not sufficiently developed to permit appellate review" (id.).When calculating respondent's income, the court should deduct the child support that respondentprovided to his two sons who are not the subject of the instant action (see Family Ct Act§ 413 [1] [b] [5] [vii] [D]).
The Support Magistrate was not "interested" within the meaning of Judiciary Law §14. "In the absence of statutory grounds, the decision upon a recusal motion is a discretionaryone . . . and should not be disturbed unless the moving party can point to an actualruling which demonstrates bias, which appellant does not do here" (Yannitelli v Yannitelli &Sons Constr. Corp., 247 AD2d 271, 271 [1998], lv dismissed 92 NY2d 875 [1998][internal quotation marks, emendations, and citations omitted]).
Respondent's contention that the purge amount set in the October 2008 order ($18,000) isexcessive is premature because the purge amount is part of the Support Magistrate'srecommendation of incarceration, which is subject to confirmation by Family Court (seeFamily Ct Act § 439 [a]). Since Family Court will determine whether respondent is belowthe poverty line, we note that "[w]here the non-custodial parent's income is less than or equal tothe poverty income guidelines amount for a single person . . . unpaid child supportarrears in excess of five hundred dollars shall not accrue" (Family Ct Act § 413 [1] [g]).
Respondent's argument that the contempt proceeding against him for violating a supportorder should have been dismissed because he was never served with the violation petition isunavailing. In open court on May 12, 2005, respondent's attorney said that petitioner could serveher with the petition; respondent, who was in court, did not disagree. On June 13, 2005,respondent's attorney received the petition, as respondent himself admitted in paragraph 5 (c) ofhis affidavit, sworn to on July 11, 2005.
Respondent's contention that due process was violated lacks merit. "Due process is satisfiedso long as a party receives reasonable notice of a claim and an opportunity to be heard"(Matter of Stone v Stone, 218 AD2d 824, 825-826 [1995], lv dismissed 87 NY2d843 [1995]). Respondent received both.
We also reject respondent's argument that the contempt proceeding should have beendismissed because the Support Magistrate did not decide his motion to dismiss within 60 days.The 60-day deadline in CPLR 2219 (a) is "precatory . . . so that a decision renderedafter the expiration of the allotted time is still a valid one" (Siegel, Practice Commentaries,McKinney's Cons Laws of NY, Book 7B, CPLR C2219:2).[*3]
We have considered respondent's remaining arguments,to the extent they are preserved and properly before us on this appeal, and find them devoid ofmerit. Concur—Tom, J.P., Nardelli, Renwick, Freedman and Roman, JJ.