Evans v. Pudding, 2019–01506

• Decision Date: 10 June 2020
• Docket Number: 2019–01506 ,Docket No. F–7380–18/18B
• Parties: In the Matter of Charlotte EVANS, Respondent, v. Alan PUDDING, Appellant.
• Court: New York Supreme Court — Appellate Division

184 A.D.3d 638

123 N.Y.S.3d 508 (Mem)

In the Matter of Charlotte EVANS, Respondent,

v.Alan PUDDING, Appellant.

2019–01506

Docket No. F–7380–18/18B

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 30, 2020

June 10, 2020

Nancy C. Nissen, White Plains, NY, for appellant.

Segal & Greenberg LLP, New York, N.Y. (Philip C. Segal of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Westchester County (Nilda Morales Horowitz, J.), dated December 20, 2018. The order denied the father's objections to an order of the same court (Rosa Cabanillas–Thompson, S.M.) dated October 26, 2018, which, after a hearing, inter alia, found that the father willfully violated a prior order of child support.

ORDERED that the order dated December 20, 2018, is affirmed, without costs or disbursements.

"A determination by a support magistrate that a person is in willful violation of a support order and recommending commitment has no force and effect until confirmed by a Judge of the Family Court. Such a determination by a support magistrate does not constitute a final order to which a party may file written objections" ( Matter of Flanagan v. Flanagan, 109 A.D.3d 470, 471, 969 N.Y.S.2d 915 [internal quotation marks omitted]; see Family Ct Act § 439[a], [e] ). Here, despite denying the father's written objections, the order appealed from dated December 20, 2018, did not confirm the Support Magistrate's determination that the father willfully violated a prior order of child support (see Matter of Addimando v. Huerta, 147 A.D.3d 750, 751, 46 N.Y.S.3d 168 ). The father failed to pursue his sole remedy, which was to appeal from the order of commitment dated August 19, 2019, entered upon confirmation of the Support Magistrate's determination (see Matter of Flanagan v. Flanagan, 109 A.D.3d at 471, 969 N.Y.S.2d 915 ; Matter of Dakin v. Dakin, 75 A.D.3d 639, 640, 904 N.Y.S.2d 677 ). Accordingly, the issue of whether the father willfully violated a prior order of child support is not properly before us on the appeal from the order dated December 20, 2018 (see Matter of Ortiz–Schwoerer v Schwoerer, 128 A.D.3d 828, 830, 9 N.Y.S.3d 117 ).

The father's remaining contention is without merit.

LEVENTHAL, J.P., ROMAN, COHEN and MALTESE, JJ., concur.