Malcolm v. Trupiano
| Decision Date | 26 April 2012 |
| Citation | 943 N.Y.S.2d 265,94 A.D.3d 1380,2012 N.Y. Slip Op. 03255 |
| Parties | In the Matter of Sheron MALCOLM, Respondent, v. Joseph TRUPIANO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
2012 N.Y. Slip Op. 03255
94 A.D.3d 1380
943 N.Y.S.2d 265
In the Matter of Sheron MALCOLM, Respondent,
v.
Joseph TRUPIANO, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
April 26, 2012.
[943 N.Y.S.2d 266]
Friedman & Molinsek, P.C., Delmar (Michael P. Friedman of counsel), for appellant.
Before: ROSE, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ.
McCARTHY, J.
[94 A.D.3d 1380] Appeal from an order of the Family Court of Greene County (Pulver Jr., J.), entered June 22, 2011, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 4, to modify a prior child support order.
The parties are the parents of one child (born in 2001). By order entered in January 2011 and corrected in February 2011, Family Court found that respondent's pro rata share of child support, including health insurance premiums, was $813.30. The court then determined that this amount would be unjust or inappropriate due to petitioner's receipt, as representative payee, of $1,008 monthly from the Social Security Administration (hereinafter SSA) on behalf of the child as a result of respondent's entitlement to Social Security retirement benefits ( see Family Ct. Act § 413[1][f] ). The court set respondent's support obligation at $540.15 per month. At the end of January 2011, petitioner commenced this proceeding seeking to modify the newly-issued order, alleging that respondent had contacted the SSA requesting that he be named the child's representative payee, the SSA made the change, and the child's Social Security check had been redirected to respondent.
Following two appearances at which no sworn testimony was taken and no documents were received into evidence, the Support[94 A.D.3d 1381] Magistrate granted petitioner's application, set respondent's child support obligation at $1,300 per month and continued all other provisions of the prior order. Family Court denied respondent's objections, prompting him to appeal.
Family Court was not required to dismiss the petition based upon petitioner's failure to file a supporting affidavit. Because the language of Family Ct. Act § 451(1) is “permissive rather than preemptory,” the court has “discretion to determine whether to proceed with a hearing on an application to modify an order of support” ( Matter of Morgan v. Wright, 199 A.D.2d 931, 932, 605 N.Y.S.2d 574 [1993] ). Nevertheless, reversal is required on other grounds.
In all support proceedings, including modification...
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...did not err in denying the father's petition without receiving financial disclosure statements ( cf. Matter of Malcolm v. Trupiano, 94 A.D.3d 1380, 1381, 943 N.Y.S.2d 265;Matter of Harvey v. Benedict, 83 A.D.3d 1402, 1402–1403, 919 N.Y.S.2d 451) because the burden was on the father to demon......
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