| Matter of Pepe v Pepe |
| 2015 NY Slip Op 04133 [128 AD3d 831] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Bryan Pepe,Respondent, v Kristin Pepe, Appellant. (Proceeding No. 1.) In the Matter ofKristin Pepe, Appellant, v Bryan Pepe, Respondent. (Proceeding No. 2.) |
Kristin Pepe, Naples, Florida, appellant pro se.
Appeals from (1) an order of the Family Court, Rockland County (William P.Warren, J.), dated June 17, 2014, and (2) an order of that court dated September 16,2014. The first order, insofar as appealed from, granted the father's objection to so muchof an order of that court (Catherine M. Miklitsch, S.M.), entered April 8, 2014, asamended May 29, 2014, as denied his petition for a downward modification of his childsupport obligations as set forth in an order of support dated September 27, 2012, andthereupon granted the petition and reduced the father's support obligations. The secondorder, insofar as appealed from, denied the mother's objections to stated portions of theamended order which, inter alia, (1) denied, without prejudice, the mother's request forcertain child care arrears, (2) modified the order of support dated September 27, 2012, bydirecting the father, effective February 13, 2013, to pay only 60% of child care expensesdirectly to the mother, (3) directed him, commencing on February 28, 2014, to makepayments of only $50 weekly to the mother, through the New York State SupportCollection Unit, to repay support arrears, and (4) failed to award her an attorney's feeunder Family Court Act § 454 (3).
Ordered that the order dated June 17, 2014, is reversed insofar as appealed from, onthe law and the facts, the father's objection to so much of the order entered April 8, 2014,as amended May 29, 2014, as denied his petition for a downward modification of hischild support obligations is denied, and the child support obligations set forth in theorder of support dated September 27, 2012, are reinstated; and it is further,
Ordered that the order dated September 16, 2014, is modified, on the law and thefacts, (1) by deleting the provision thereof denying the mother's objection to so much ofthe amended order dated May 29, 2014, as modified the order of support datedSeptember 27, 2012, by directing the father, effective February 13, 2013, to pay 60% ofchild care expenses directly to the mother, and substituting therefor a provision grantingthat objection by the mother, vacating that portion of the amended order dated May 29,2014, and reinstating the provision in the order of support dated September 27, 2012,which directed the father to pay child care expenses in the sum of $147.12 per week,payable to the New York State Support Collection Unit, effective December 6, 2013, and(2) [*2]by deleting the provision thereof denying themother's objection to so much of the amended order dated May 29, 2014, as directed thefather, commencing on February 28, 2014, to make payments of $50 weekly to themother, through the New York State Support Collection Unit, to repay support arrears,and substituting therefor a provision granting that objection to the extent of vacating thatportion of the amended order dated May 29, 2014; as so modified, the order datedSeptember 16, 2014, is affirmed insofar as appealed from, and the matter is remitted tothe Family Court, Rockland County, for a determination under Family Court Act§ 454 (3) regarding an award of an attorney's fee to the mother's attorney;and it is further,
Ordered that one bill of costs is awarded to the mother.
The parties were married on June 13, 2009, and divorced on September 27, 2012.They have one son, born on September 4, 2010. Pursuant to the terms of a settlementagreement entered into on April 12, 2012, which was incorporated but not merged intothe judgment of divorce, the father was ordered to pay, through the New York StateSupport Collection Unit (hereinafter the SCU), the sum of $245.19 per week towardbasic child support and $147.12 per week for child care expenses.
In February 2013, the father petitioned for a temporary reduction in his child supportobligations, claiming a substantial change in circumstances because of an injury thatwould prevent him from working for a period of 6 to 10 weeks.
In March 2013, the mother obtained a money judgment against the father for$2,983.70 in child support arrears, and subsequently filed two violation petitions in May2013, claiming that the father willfully failed to pay the money judgment and refused topay additional child support, child care expenses, and unreimbursed medical expensesincurred since then.
By order entered April 8, 2014, after hearings held in October and December of2013, the Support Magistrate, inter alia, denied the father's petition with prejudice,adjudged that the father willfully violated the prior support order, and determined theamount of all arrears up to December 6, 2013 (the final date of the hearing), but denied,without prejudice, the mother's request for child care expenses incurred from February13, 2013, until December 6, 2013. The order also directed the father to repay arrearsthrough the SCU at a rate of $50 per week.
An amended order and amended findings of fact were issued by the SupportMagistrate on May 29, 2014. The amendments corrected a typographical error and addeda new decretal paragraph confirming the father's obligation to pay 60% of child careexpenses directly to the mother, effective February 13, 2013. Objections to the amendedorder were submitted by both parties to the court.
By order dated June 17, 2014, the Family Court granted the father's objection to somuch of the Support Magistrate's order entered April 8, 2014, as amended on May 29,2014, as denied his petition for a downward modification, and thereupon, granted thefather's petition and reduced his child support obligations to $94.35 per week fromFebruary 20, 2013, until April 10, 2014.
By order dated September 16, 2014, the Family Court, among other things, deniedthe mother's objections to the Support Magistrate's amended order dated May 29,2014.
Since the parties' stipulation of settlement, which set forth the father's child supportobligations, was executed after the effective date of the 2010 amendments to FamilyCourt Act § 451 (see L 2010, ch 182, § 13), in order toestablish his entitlement to a downward modification of his child support obligations, thefather had the burden of establishing "a substantial change in circumstances" (Family CtAct § 451 [3] [a]; cf. Matter of Suchan v Eagar, 121 AD3d 910 [2014]). Aparty seeking modification due to illness or injury "must show that he or she is incapableof working or has made a good faith effort to obtain other employment commensuratewith his or her abilities or qualifications" (Matter of Gavin v Worner, 112 AD3d 928, 929 [2013]).Here, the father failed to submit [*3]any competentmedical proof of the extent of his injury and incapacity to work. The father's uncertifiedmedical records were never introduced into evidence—nor could they have been(see Kotlyar v Strogov, 58AD3d 693 [2009]; CPLR 4518)—and the father did not accept the SupportMagistrate's offer to have his attending physician testify by phone.
Moreover, the father's petition sought only to reduce his support obligations for alimited period of approximately three months between his injury on February 11, 2013,and his return to full-time work on May 15, 2013. The Support Magistrate, having had anopportunity to hear the father's testimony and evaluate his credibility, found that he didnot submit a complete picture of his finances and, therefore, did not establish asubstantial change in his circumstances during the relevant three-month period. Weaccord deference to a Support Magistrate's credibility determinations (see Matter of Ippolito vUriarte, 112 AD3d 716, 717 [2013]), and we discern no reason to disturb thehearing court's findings of fact on this point.
Therefore, it was error for the Family Court, in its order dated June 17, 2014, to grantthe father's objections and modify the order and findings of the Support Magistrate onthis point, and the error was compounded by the court's decision, sua sponte, to extendthe downward modification for a period of almost one year beyond the three monthsrequested by the father in his petition.
The Support Magistrate erred, in the amended order, in failing to continue the orderof support dated September 27, 2012, in the sum of $147.12 per week toward child careexpenses, payable to the mother through the SCU, and directing instead, effectiveFebruary 13, 2013, that the father pay 60% of child care expenses directly to themother.
Absent a petition to modify the terms of the existing order of support with respect tochild care, the Family Court had no authority to discontinue the father's weekly paymentof $147.12 to the mother through the SCU. If the parties' circumstances have changedand the actual costs of child care are less than what had been determined at the time ofthe divorce in September of 2012, the father may petition the court for a downwardadjustment of the weekly sum to be paid through the SCU (see Matter of Scarduzio vRyan, 86 AD3d 573 [2011]). Unless and until such a petition is granted,however, the terms of the existing order of support should be continued. Therefore, theFamily Court should have granted the mother's objection to the provision of the amendedorder which directed the father, effective February 13, 2013, to pay 60% of child careexpenses directly to the mother.
The Support Magistrate erred in directing the father to repay the arrears at the rate of$50 per week, commencing on February 28, 2014, payable to the mother through theSCU. Where, as here, the relevant order of support is being enforced pursuant to SocialServices Law § 111-g, the court's role is limited to establishing the amountof child support arrears and notifying the parties that such amount shall be enforced bythe SCU pursuant to an execution for support enforcement as provided for in CPLR 5241(b), and the court shall not direct the schedule of repayment of retroactive support(see Family Ct Act § 440 [1] [a]; Matter of Tosques v Ponyicky,89 AD3d 1097, 1098 [2011]). Therefore, the mother's objection to that portion ofthe Support Magistrate's amended order should have been granted.
In light of the finding of willfulness, we remit the matter to the Family Court,Rockland County, for a determination under Family Court Act § 454 (3)regarding an award of an attorney's fee to the mother's attorney.
The mother's remaining contentions are unpreserved for appellate review, refer tomatter dehors the record, are rendered academic in light of our determination, or arewithout merit. Rivera, J.P., Hall, Austin and LaSalle, JJ., concur.