| Matter of Fisher v Nathan |
| 2011 NY Slip Op 03237 [83 AD3d 938] |
| April 19, 2011 |
| Appellate Division, Second Department |
| In the Matter of Patricia Fisher, Respondent, v Charles N.Nathan, Appellant. |
—[*1]
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from(1) an order of the Family Court, Westchester County (Furman, J.H.O.), dated April 2, 2010,which denied his motion for a temporary downward modification of his obligation to pay arrearsfor his daughter's college expenses, and (2) an order of the same court (Klein, J.), datedSeptember 20, 2010, which denied his objection to the order dated April 2, 2010.
Ordered that the appeal from the order dated April 2, 2010, is dismissed, without costs ordisbursements, as that order was superseded by the order dated September 20, 2010; and it isfurther,
Ordered that the order dated September 20, 2010, is affirmed, without costs ordisbursements.
The Family Court properly denied the father's objection to the order of the Judicial HearingOfficer, which denied his motion for a temporary downward modification of his obligation to payarrears for his daughter's college expenses. Although child support arrears cease to accrue abovethe sum of $500 where a noncustodial parent can establish that his or her income is less than orequal to poverty income guidelines amount for a single person, as reported by the United StatesDepartment of Health and Human Services (see Family Ct Act § 413 [1] [g]), a"modification, set aside or vacatur [of a child support obligation set forth in a judgment or order]shall not reduce or annul child support arrears accrued prior to the making of an applicationpursuant to this section" (Family Ct Act § 451 [1]). "In that regard, contrary to the father'sclaim, child support arrears may not be reduced or annulled even where the defaulting partyshows good cause for failing to make an application for relief from the judgment or order ofsupport prior to the accrual of arrears or where requiring the party to pay the arrears will result ina grievous injustice" (Matter ofMandelowitz v Bodden, 68 AD3d 871, 875 [2009]; see Matter of Dox v Tynon,90 NY2d 166, 173-174 [1997]).
Here, the father failed to establish that any decline in business sustained by his solo lawpractice as a result of his illness left him below the federal poverty income guidelines.Accordingly, his obligation for child support arrears continued to accrue, and there is no basis inlaw to adjust or reduce his obligation to pay child support arrears. Dillon, J.P., Florio, Chambersand Miller, JJ., concur.