In the Matter of Janet E. v. Antonio B., 2005 NY Slip Op 25434 (NY 10/18/2005)

Decision Date18 October 2005
Docket NumberU-03831-04.
Citation2005 NY Slip Op 25434
PartiesIN THE MATTER OF A UIFSA Proceeding Hillsborough County CSE-FL, O/B/O JANET E., Petitioner, v. ANTONIO B., Respondent.
CourtNew York Court of Appeals Court of Appeals

Antonio B., Respondent/Objectant, Appearing Pro Se.

Lara M. Quintiliani, Esq., Ulster County Attorney's Office Attorney for Petitioner, Janet E.

STEVEN NUSSBAUM, J.

Respondent Antonio B. [Objectant or Respondent] has filed objections to an order of support on consent signed by the Support Magistrate on August 4, 2005, and entered on August 8. The order provides that Objectant is to pay child support in the amount of $25.00 for the support of his daughter, Alexandra E. (d/o/b 12/15/97). It also provides that retroactive child support for the period of November 16, 2004 to August 4, 2005, is set at $500.00. The order was entered in connection with a Uniform Interstate Support Act [UIFSA] paternity proceeding commenced by Janet E. Mr. B. is currently incarcerated at Shawangunk Correctional Facility, serving the eighth year of a sentence of twenty-eight and one-half years to life. He was convicted of murder in the second degree based upon depraved indifference to life, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree.

By letter to this Court dated November 26, 2004, Mr. B. requested that the necessary paternity tests be done before he was produced from prison. A genetic marking test was ordered, and the results indicated Objectant is the biological father of the child within 99.99 percent of reasonable certainty.

On August 4, 2005, a hearing was scheduled. Present were counsel from the County Attorney's Office and Mr. B. Objectant, after being advised of his right to counsel, waived the same and admitted to paternity. With regards to setting an order of support, the Magistrate stated:

[b]ased on your circumstances, Mr. B., the law would have me enter what has been called a minimum order of support. It would say that you would have the obligation to pay $25.00 for the support of Alexandra but that your debt can never accumulate to any larger than $500.00. The end result of all that is that you will owe $500 when you finally get out of the correctional institute that you're in. Do you understand all that? Do you have any questions about that? Do you have any objections to that?

Mr B. responded that he had no choice as he was in prison. The Support Magistrate then stated, "Unless there is an objection I will order all that." Objectant replied, "If you want to me pay $25.00 a month, I will pay $25.00 a month."

Mr. B. sets forth three objections to the order of the Support Magistrate. The first objection is that the order inaccurately states that he is unemployed and "possessed of sufficient means and able to earn such means to provide support to his child in the form of financial payments." He asserts that he is not employed in the traditional sense of the word, being barred by New York State from pursuing work release or seeking gainful employment because of his violent felony conviction. According to Respondent, his lack of income is unavoidable.

His second objection is premised on the purported negative impact the $25.00 per month award of child support will have on his daughter, the Mother, and himself. It is his belief that because he cannot pay the child support ordered, "his daughter and her mother . . . may become hurt and confused because it appears as if the father was found capable of paying the support and simply opted not to." The child will be led to believe he refuses to support her. Were the child support amount reduced to zero, according to Objectant, the mother and child's "unrealistic expectations" would be eliminated.

According to Respondent, he also will be negatively impacted by the order because were he labeled a "dead beat dad," and he would be irreparably harmed and unfairly subjected "to bias and possible prejudice in any future criminal proceedings such as parole." Although he is in prison for at least another twenty years and will not be released until his daughter will be over the age of twenty-one, he claims that the "dead beat dad" label would undermine his rehabilitation goals, preventing any possible tangible child support in the future.

His final objection is premised on the argument that since he will not be out of prison until his daughter is well past her majority, her need for support will have passed and the order is therefore, merely punitive. Mr. B. argues that, since he is unable to pay, a support order serves no legitimate purpose.

Objectant requests that his order be reduced to no child support until such time as he is able to pay support. In the alternative, he seeks a stipulation from the Court that any arrears of unpaid child support be capped at $500.00 pursuant to FCA § 13(1)(g). In the event that there are any future hearings or proceedings, he requests that he be provided counsel.

The County Attorney, in opposition to the Objections, argues that the use of the term "unemployed" in the Order is appropriate as it describes his uncontested working status and was important to recite in the order so as to justify the below poverty order being signed and entered. It is further argued that the Objectant's claim that he would be labeled a "dead beat dad" is irrelevant to this Court's determination. In addition, Mr. B. agreed to the order, and it should not be set aside. The County Attorney asserts that the inability of the Objectant to make payments is the result of his own wrong doing. Accordingly, it is argued, the Objections should be denied.

DISCUSSION

The issue essentially raised on Objections in this matter is whether it is appropriate to establish an initial child support order for an individual already incarcerated and serving a sentence of twenty-eight and one-half years to life. All appeals by the father of his criminal conviction appear to have been decided and, in all likelihood, he will not be released from prison, if at all, until his child is well into her majority. Based upon the information provided, it appears that he committed the felony and was arrested shortly before the child's birth. Mr. B. had already served seven years of his sentence at the time the paternity proceeding in issue was commenced. Objectant does not contest his paternity, but rather his obligation to pay child support of $25.00 a month.

Most of the published case law in New York concerning the obligation of an incarcerated parent to pay child support arises in the context of the filing of a downward modification petition. In those instances a support order was entered prior to the criminal sentence and incarceration of the payer, and that parent was seeking to change an existing support order or to justify a failure to pay previously court-ordered support. Knights v. Knights, 71 NY2d 865, 522 NE2d 1045, 527 NYS2d 748 (1988) (incarceration does not justify downward modification of child support); Commissioner of Soc. Servs. v. Darryl B., 306 AD2d 54, 759 NYS2d 676 (1st Dept 2003); Furman v. Barnes, 293 AD2d 781, 739 NYS2d 655 (3d Dept 2002) (Support Magistrate's summary dismissal of father's petition seeking downward modification of child support due to long term incarceration upheld); Ontario Dept. of Soc. Servs. v. Jackson, 212 AD2d 1056, 624 NYS2d 1011 (4th Dept 1995). See also Grettler v. Grettler, 12 AD3d 602, 786 NYS2d 540 (2d Dept 2004) (loss of employment due to arrest was no excuse for failure to pay ordered child support). The rationale is that a downward modification of child support is inappropriate since the non-custodial parent's incarceration and loss of employment was the result of his or her wrongful conduct.

An initial order of child support is being sought in this case, however, after the Respondent has already been in prison for several years and will remain there for at least another twenty years, if not the remainder of his life. During the hearing before the Support Magistrate, Mr. B. indicated that he had no assets and no income. There was no evidence as to his pre-incarceration employment history or income. Given the seriousness of the crimes of which he was convicted, Objectant currently is not eligible for work release.

In Winn v. Baker, 2 AD3d 1169, 768 NYS2d 708 (3d Dept 2003), the petitioner was granted an order of child support against a respondent who was incarcerated at the time of the support hearing. He was convicted of felony driving while intoxicated. The ordered payment of $82.00 weekly was based upon income imputed to the respondent based upon his salary or income prior to his arrest. In affirming the payment, the Appellate Division definitely stated that "New York courts will not countenance a reduced child support award where a parent's financial hardship results from his or her own intentional and wrong conduct resulting in incarceration." Id. at 1170, 768 NYS2d at 709, citing to Knights v. Knights, supra , 71 NY2d 865, 522 NE2d 1045, 527 NYS2d 748 (1988).

In the within case, however, the Respondent had been incarcerated for over seven years at the time the proceeding was commenced. On the other hand, in Winn, the non-custodial parent's incarceration appears to have been a recent event, a conclusion based upon employment earning records from the prior year being introduced into evidence. As noted by one New York court, while there is discretion to impute income to a parent, including imputing income based upon a party's prior employment history, "the exercise of that discretion `must have some basis in law and fact.'" Cattaraugus County Comm. of Soc. Servs. v. Bund, 259 AD2d 973, 687 NYS2d 512 (4th Dept 1999). The Supreme Court of Nebraska, in Z.P. v. Porter, 259 Neb. 366, 374, 610 N.W.2d 23, 29 (2000), found that before relying on earning capacity to set an initial child support order for an incarcerated parent, evidence...

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