| Matter of Cadwell v Cadwell |
| 2015 NY Slip Op 00369 [124 AD3d 649] |
| January 14, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Earl Cadwell, Sr.,Appellant, v Genevieve Cadwell, Respondent. |
Earl Cadwell, Sr., Brentwood, N.Y., appellant pro se.
Genevieve Cadwell, East Stroudsburg, Pennsylvania, respondent pro se.
Appeal from an order of the Family Court, Queens County (Marybeth S. Richroath,J.), dated January 2, 2014. The order denied the father's objections to a prior order of thatcourt (Joette M. Blaustein, S.M.), dated November 20, 2013, which dismissed hispetition for a downward modification of his child support obligation retroactive toOctober 30, 2004, and for the reduction of support arrears.
Ordered that the order dated January 2, 2014, is affirmed, with costs.
In a judgment of divorce dated June 18, 1996, which incorporated but did not mergea separation agreement dated December 1, 1990, the father's child support obligation wasset at $150 per week for the parties' children. Pursuant to an order entered August 19,2008, the father's support obligation was terminated, effective June 12, 2008. Thereafter,pursuant to an order dated July 11, 2012, which was entered on the parties' consent, thefather's total support arrears were fixed at $85,871.98, and a money judgment wasentered in favor of the mother in that amount. Subsequently, on March 14, 2013, thefather commenced this proceeding, seeking a downward modification of his childsupport obligation retroactive to October 30, 2004, and to reduce the amount of arrearsthat were fixed in the order dated July 11, 2012. The father contended that there had beena change of circumstances, in that the parties' daughter had been emancipated on October30, 2004, by virtue of her marriage on that date. The Support Magistrate dismissed thefather's petition, and the Family Court denied the father's objections to the SupportMagistrate's order.
Family Court Act § 451 provides that the court "shall not reduce orannul child support arrears accrued prior to the making of an application pursuant to thissection." A court "ha[s] no discretion to reduce or cancel arrears of child support whichaccrue before an application for downward modification of the child support obligation"(Matter of Gardner vMaddine, 112 AD3d 926, 927 [2013], quoting Grossman v Composto-Longhi,96 AD3d 1000, 1002 [2012]; see Matter of Dox v Tynon, 90 NY2d 166,173-174 [1997]; Matter ofWeintrob v Weintrob, 87 AD3d 749, 750 [2011]; Matter of Fisher v Nathan, 83AD3d 938, 939 [2011]; Matter of Moore v Abban, 72 AD3d 970, 973 [2010]; Matter of Mandelowitz vBodden, 68 AD3d 871, 875 [2009]). Here, the father petitioned for a downwardmodification of his child support obligation after the arrears accrued. Thus, anymodification was [*2]prohibited.
In any event, the Family Court properly concluded that the father was barred fromrelitigating the amount of arrears owed. The order dated July 11, 2012, which fixed theamount of arrears that the father owed, and provided the basis for the entry of the moneyjudgment against him, was entered on his consent. On appeal, a party may not collaterallyattack an order entered on his or her consent (see generally Matter of Jackson vGangi, 277 AD2d 383, 384 [2000]). Moreover, the father had a full and fairopportunity, beginning on October 30, 2004, to raise the issue of the emancipation of hisdaughter, and thus prevent the accrual of additional arrears between that date and June12, 2008, the date that his support obligation terminated, yet he did not do so. Thus, thecourt properly determined that the father was barred from litigating or relitigating theissue of arrears (see Matter ofSimmons v Simmons, 91 AD3d 960 [2012]; Matter of Hua Fan v Wen Zong Yu, 91 AD3d 952 [2012];Matter of Solis vMarmolejos, 50 AD3d 691 [2008]).
Accordingly, the Family Court properly denied the father's objections to the order ofthe Support Magistrate which dismissed his petition for the retroactive modification ofhis child support obligation, and the reduction of arrears. Dillon, J.P., Leventhal,Chambers and Duffy, JJ., concur.