McDonald v. McDonald

Decision Date12 December 2013
PartiesIn the Matter of Jason M. McDONALD, Respondent, v. Janelle M. McDONALD, Appellant.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

James A. Mack, Binghamton, for appellant.

Before: STEIN, J.P., McCARTHY, SPAIN and EGAN JR., JJ.

McCARTHY, J.

Appeal from an order of the Family Court of Broome County (Connerton, J.), entered December 21, 2012, which, in a proceeding pursuant to Family Ct. Act article 4, denied respondent's objections to an order of a Support Magistrate.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) were married in 2000, but the father had previously signed acknowledgments of paternity for their son (born in 1995) and daughter (born in 1998). 1 In 2002, the parties resolved the mother's support petition by stipulating to an order requiring the father to pay $150 per week in child support, which represented an upward deviation from the Child Support Standards Act due to the father's earning ability. The parties' 2003 separation agreement continued that child support arrangement, and the separation agreement was incorporated into their 2005 divorce decree. In 2006, Family Court continued the previously-ordered child support.

The father commenced this proceeding seeking to reduce his child support obligation on the grounds that he earns substantially less than he did previously, and that the son began receiving Social Security survivors benefits of $859 per month as a result of his biological father's death. Following a hearing, the Support Magistrate determined that the father did not demonstrate a significant change in his earning ability, but the Support Magistrate reduced his child support payments to $105 per week based on the son's unanticipated receipt of Social Security benefits. The mother filed specific written objections to the Support Magistrate's order. Family Court (Connerton, J.) denied the objections, and the mother now appeals.

Initially, Family Court erred in denying the objections on the procedural ground that the mother failed to properly serve them on the father. The statute requires that an objecting party serve objections on the opposing party ( seeFamily Ct. Act § 439[e] ). The mother complied with that requirement by serving the father's counsel and filing proof of that service ( see Matter of Nemcek v. Connors, 92 A.D.3d 1117, 1117, 938 N.Y.S.2d 384 [2012]; Matter of Etuk v. Etuk, 300 A.D.2d 483, 484–485, 751 N.Y.S.2d 566 [2002]; see alsoCPLR 2103[b] ).

The Support Magistrate did not err in denying the father's motion to dismiss the petition prior to holding a hearing. While a hearing is not required unless the application for a modification is supported by an affidavit and evidentiary material sufficient to establish a prima facie case ( seeFamily Ct. Act § 451[1] ), the statutory language is permissive, rather than mandatory, providing the court with discretion to either proceed to a hearing or dismiss the petition ( see Matter of Malcolm v. Trupiano, 94 A.D.3d 1380, 1381, 943 N.Y.S.2d 265 [2012]; Matter of Manners v. Manners, 238 A.D.2d 815, 816, 657 N.Y.S.2d 365 [1997] ). The Support Magistrate did not abuse that discretion by permitting the matter to proceed to a hearing.

Family Court erred in confirming the Support Magistrate's decision to reduce the father's child support obligation. If a separation agreement was fair and equitable when entered into, its child support provisions should not be modified [u]nless there has been an unforeseen change in circumstances and a concomitant showing of need” ( Matter of Boden v. Boden, 42 N.Y.2d 210, 213, 397 N.Y.S.2d 701, 366 N.E.2d 791 [1977] ). The father does not argue that the separation agreement was unfair or inequitable in 2003. Despite the father's assertions that his earnings have been below the poverty line for more than three years, he has no debt, more than $14,000 in the bank and has remained current on his support payments. The father is now self-employed and reports that he makes less than he did previously, but income can be imputed to him under the circumstances. We agree with the Support Magistrate's finding that the father failed to show any significant change in his income-producing ability.

The only change in circumstances—certainly unanticipated here—is the son's receipt of Social Security survivors benefits as a result of his biological father's death. But the father has not demonstrated any showing of need for modification as a result of that change. Those benefits do not in any way affect the father's financial situation ( see Matter of Graby v. Graby, 87 N.Y.2d 605, 611, 641 N.Y.S.2d 577, 664 N.E.2d 488 [1996] ). A reduction in child support based on those benefits would provide the father with a windfall and allow him to provide less for his children, to their detriment ( see id.). A child's resources may be considered only in determiningif the amount of the basic child support obligation is unjust or inappropriate ( seeFamily Ct. Act § 413[1][f][1]; Matter of Weymouth v. Mullin, 42 A.D.3d 681, 682, 839 N.Y.S.2d 600 [2007] ); a child should not be forced to diminish his or her own assets for basic necessities absent a showing of real need ( see Matter of Scholet v. Newell, 229 A.D.2d 621, 622, 644 N.Y.S.2d 858 [1996] ). The...

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