| Matter of Cortland County Dept. of Social Servs. v VanLoan |
| 2010 NY Slip Op 07456 [77 AD3d 1135] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Cortland County Department of Social Services, onBehalf of Shelby VanLoan, Appellant, v Gordon J. VanLoan, III,Respondent. |
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Egan Jr., J. Appeal from an order of the Family Court of Cortland County (Campbell, J.),entered November 9, 2009, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 4, to hold respondent in violation of a prior order ofsupport.
Respondent is the father of a child who has frequently found herself in the custody of theCortland County Commissioner of Social Services. In January 2008, petitioner commenced aproceeding pursuant to Family Ct Act article 4 seeking to establish respondent's supportobligation for the subject child. Respondent defaulted in that proceeding and, by order entered inMarch 2008, the Support Magistrate found respondent's adjusted income to be $13,734, andordered that respondent pay $50 per month for the periods the child was in petitioner's care. In2009, petitioner commenced this proceeding, alleging that respondent had violated the 2008order. As respondent admitted that he had not made any payments under the 2008 order, theSupport Magistrate found that he had violated that order, albeit not willfully, and directed thatjudgment be entered against him for $1,850, the full amount of arrears. Respondent filed anobjection with Family Court arguing that, based on the amount of his income, the amount ofarrearages that could accrue against him could not exceed $500 (see Family Ct Act§ 413 [1] [g]). Family Court agreed and directed that a corrected judgment be enteredagainst respondent in the amount of $500. Petitioner now appeals.[*2]
Family Ct Act § 413 (1) (g) provides that, "[w]herethe non-custodial parent's income is less than or equal to the poverty income guidelines amountfor a single person as reported by the federal department of health and human services, unpaidchild support arrears in excess of five hundred dollars shall not accrue." Here, respondent wasfound by the Support Magistrate to have an adjusted income of $13,734, which was in excess ofthe poverty income guidelines for a single person as promulgated by the Department of Healthand Human Services. Respondent has admitted to never making a payment of child supportpursuant to the original order and conceded the current arrearage figure of $1,850 was correct. Ifrespondent wished to contest the amount of income originally attributed to him, and thus invokethe cap on arrears provided by Family Ct Act § 413 (1) (g), his remedy was to make anapplication to "modify, set aside or vacate" the earlier order (Family Ct Act § 451; see Matter of Moore v Abban, 72AD3d 970, 972-973 [2010]; Matterof Cook v Miller, 4 AD3d 745, 746 [2004]). Here, section 413 (1) (g) will not limit theaccrual of arrears during the relevant period absent respondent's affirmative request for andsuccessfully obtaining relief from the original order (see Family Ct Act § 451; Matter of Mandelowitz v Bodden, 68AD3d 871, 875-876 [2009], lv denied 14 NY3d 710 [2010]; Matter of Martinez v Torres, 26 AD3d496, 497 [2006]; Matter ofCommissioner of Social Servs. of Rensselaer County [Faresta] v Faresta, 11 AD3d 750,752-753 [2004]).
Cardona, P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as limited the accrual of arrearsto $500, and, as so modified, affirmed.