Carella v. Collins

• Decision Date: 26 January 1989
• Citation: 144 A.D.2d 78,536 N.Y.S.2d 1020
• Parties: In the Matter of Arlene C. CARELLA, Respondent, v. Charles E. COLLINS, III, Appellant, and Albert M. Rosenblatt, as Chief Administrative Judge of the Unified Court System of the State of New York, Intervenor-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 1020

536 N.Y.S.2d 1020

144 A.D.2d 78

In the Matter of Arlene C. CARELLA, Respondent, v. Charles E. COLLINS, III, Appellant and Albert M. Rosenblatt, as Chief Administrative Judge of the Unified Court System of the State of New York Intervenor-Respondent.

Supreme Court, Appellate Division Third Department.

Jan. 26, 1989.

Nicholas D. Morsillo, Schenectady, for respondent.

Michael Colodner, New York City (Patricia P. Satterfield, of counsel), for intervenor-respondent.

Frost & Donohue, Troy (Jerome K. Frost, of counsel), for appellant.

Before CASEY, J.P., and MIKOLL, YESAWICH, LEVINE and HARVEY, JJ.

MIKOLL, Justice.

Petitioner and respondent were married June 28, 1975. They had three children during their marriage. Under the terms of a 1980 separation agreement, as amended in 1981, respondent was to pay $105 per week for three years for maintenance and child support. After three years, the parties were to review their circumstances and, in the event they were unable to reach an agreement, they could seek to have Family Court determine the amount of support. The parties were divorced on July 27, 1981. The divorce judgment incorporated but did not merge the separation agreement.

Various court proceedings were had which changed the maintenance and support payments on the basis of changed circumstances. On April 22, 1986, Saratoga County Family Court awarded exclusive possession of the marital residence to petitioner and ruled that the issues of support and maintenance were to be heard by a Family Court Hearing Examiner in Schenectady County.

Following a series of hearings, the Hearing Examiner, in a decision dated March 12, 1987, found that respondent was to pay approximately $1,500 per month for support. On April 15, 1987, in a decision adopting the Hearing Examiner's report, Saratoga County Family Court held that respondent was in contempt for failure to make certain payments under the Hearing Examiner's decision and sentenced respondent to 15 weekends in the Saratoga County Jail. However, this sentence was suspended upon the condition that there be full compliance with the order.

Subsequently petitioner filed violation petitions and respondent filed a modification petition alleging, inter alia, his inability to comply with the support order. In September 1987, the Hearing Examiner found that respondent's noncompliance was willful and recommended incarceration. Petitioner sought to have respondent committed to jail pursuant to Family Court's order of April 15, 1987. By way of answer and cross petition, respondent asserted the defenses that the Hearing Examiner was without jurisdiction to entertain the issues and that he was financially unable to comply with the orders sought to be enforced.

On January 25, 1988, following a hearing on this matter, Family Court issued a decision and order holding that respondent had willfully violated its order of support of April 15, 1987 and directed his commitment to the Saratoga County Jail for 15 weekends. The court dismissed respondent's challenge to the jurisdiction of the Hearing Examiner as having no merit. Respondent then filed a notice of appeal regarding Family Court's April 15, 1987 order directing certain support payments and the January 25, 1988 order directing respondent's commitment. This court subsequently granted the State's Chief Administrative Judge (hereinafter intervenor) permission to intervene and a stay of respondent's sentence pending this appeal.

Respondent's argument that the order directing support payments should be modified to a point where he will be financially able to comply must be rejected as untimely. The order appealed from directing support payments was dated April 15, 1987. It appears that more than 30 days passed since the entry of this order and before the filing of the notice of appeal. An appeal from such order must be taken no later than 30 days from the entry and service thereof (Family Ct. Act § 1113).

However, the appeal from the order dated January 25, 1988 sentencing respondent to 15 weekends in jail is timely. Although respondent has waived his right to attack the support obligations imposed under the April 15, 1987 order, his appeal from the commitment order may be pursued on the ground that he is financially unable to comply with his support obligations (Family Ct. Act § 455).

Initially, we find unpersuasive intervenor's claims that respondent has waived his right to challenge the support order of the Hearing Examiner by failing to comply with the requirements of Family Court Act § 439(e) in that respondent did not submit written objections to such order to Family Court within 30 days of entry of the Hearing Examiner's order. Respondent is not precluded from appealing the propriety of such order by failing to submit such objections. The content of the Hearing Examiner's order is not an issue here. The issue is whether the Hearing Examiner lacked the jurisdiction to hear this case. Respondent timely appealed from an order of Family Court entered January 25, 1988 dismissing this issue. Therefore, the constitutionality of the Hearing Examiner's order is properly before this court.

We find without merit respondent's contention that Family Court Act § 439 is unconstitutional insofar as it authorizes the transfer of Family Court's powers from constitutionally elected Judges to nonjudicial, unelected employees of the Unified Court System. N.Y. Constitution, article VI, § 30 vests broad power in the Legislature to make procedural rules for the courts (Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 247, 303 N.Y.S.2d 633, 250 N.E.2d 690). The Legislature, in enacting Family Court Act § 439, has recognized the need to "the powers of hearing examiners in child support cases and require the use of such hearing examiners to expedite child support determinations" (Executive Department mem., 1985 McKinney's Sessions Laws of N.Y., at 3162; see, Glass v. Thompson, 51 A.D.2d 69, 379 N.Y.S.2d 427).

Even if the authority vested in Family Court Hearing Examiners could be shown to infringe in some way upon the province of Family Court Judges, any such infringement would not be an unconstitutional grant of authority because the final authority to review determinations made by Hearing Examiners is reserved for Family Court Judges (cf., Chase v. Scalici, 97 A.D.2d 25, 468 N.Y.S.2d 365). According...