Matter of Miller v. Smith, 2003-07290.

• Decision Date: 10 May 2004
• Docket Number: 2003-07292.,2003-07290.
• Citation: 775 N.Y.S.2d 900,7 A.D.3d 629,2004 NY Slip Op 03824
• Parties: IN THE MATTER OF LISA MILLER, Respondent, v. JONATHAN SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

7 A.D.3d 629

775 N.Y.S.2d 900

2004 NY Slip Op 03824

IN THE MATTER OF LISA MILLER, Respondent, v. JONATHAN SMITH, Appellant.

2003-07290.

2003-07292.

Appellate Division of the Supreme Court of the State of New York, Second Department.

May 10, 2004.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Kings County (Shamahs, H.E.), dated June 13, 2002, which, after a hearing, directed him to pay the sum of $619.51 per month in child support and the sum of $311.83 per month toward child care, and (2) an order of the same court (Pearce, J.) dated November 22, 2002, which denied his objections to the order dated June 13, 2002.

Ordered that the appeal from the order dated June 13, 2002, is dismissed, as that order was superseded by the order dated November 22, 2002; and it is further,

Ordered that the order dated November 22, 2002, is affirmed; and it is further,

Ordered that one bill of costs is awarded to the mother.

Family Court Act § 439 (e) provides that an aggrieved party's specific written objections to the final order of support of the Hearing Examiner must be submitted within 35 days after the mailing of the order to such party. The Hearing Examiner's order was mailed to the father on June 14, 2002. However, the father did not submit written objections to the Hearing Examiner's order until July 22, 2002. Since the father's written objections were not submitted until more than 35 days after the mailing of the Hearing Examiner's order, the Family Court properly denied the objections on this ground (see Matter of Zullo v Hom, 1 AD3d 442 [2003]; Matter of Mayeri v Mayeri, 279 AD2d 473 [2001]). The father's contention on appeal regarding the date of mailing is based on matter dehors the record.

H. Miller, J.P., Adams, Townes and Mastro, JJ., concur.