Michelle B. v. Thomas Y.

• Decision Date: 11 January 2022
• Docket Number: F-30317/2004/19F
• Parties: In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act Michelle B., Petitioner, v. Thomas Y., Respondent.
• Court: New York Family Court

2022 NY Slip Op 50020(U)

In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act Michelle B., Petitioner,
v.
Thomas Y., Respondent.

Docket No. F-30317/2004/19F

Family Court, Kings County

January 11, 2022

Unpublished Opinion

The mother was represented by Rena C. Dawson, Esq., Karasayk & Moschella, LLP, 233 Broadway, suite 2340, New York, NY 10006, Phone: (212) 233-3800, rdawson@kmattorneys.com; the Father was unrepresented.

JAVIER E. VARGAS, J.

Papers Numbered

Summons, Petitions, Affidavit & Exhibits Annexed 1

Objections, Affidavit in Support & Exhibits Annexed 2

Court Proceedings Transcripts 3

Upon the foregoing papers and for the following reasons, the Objections by Petitioner Michelle B. (Hereinafter "Mother"), to an Order on Motion dated October 29, 2021, by Support Magistrate Jennifer L. Castaldi, are granted in accordance with the following decision.

The Mother and Respondent Thomas Y. (hereinafter "Father") are the parents of the subject Child of these proceedings, born out-of-wedlock on XX XX, 1992. By Order of Support dated January 7, 2011, the Father was ordered to pay child support to the Mother payable through the Support Collection Unit ("SCU"). Pursuant to a prior violation proceeding by the Mother, the Father was found in willful violation of the Support Order and was incarcerated for six months from January 2019 to July 2019. The remaining arrears were converted into a Judgment against the Father for which he was paying $23 bi-weekly consistent with the Terms of the SCU payout arrangement.

By Violation Petition dated October 15, 2019, the Mother commenced the instant proceeding against the Father in Kings County Family Court, alleging that he has not paid those scheduled arrears since 2018, and that his failure to comply was again willful requiring remedies pursuant to Family Court Act § 454. As of November 13, 2019, when the parties initially appeared before Support Magistrate Castaldi, the Father had outstanding arrears of $206, 055.44 for the now-emancipated Child, according to the SCU Accounts and Records Statement. The Magistrate assigned an attorney to Father and adjourned the matter to December 12, 2019.

On January 17, 2020, Mother appeared pro se and Father appeared with his appointed attorney who appeared by phone. The SCU Statement dated January 15, 2020, reflected that the Father had paid $1, 050 to the SCU since the prior court date. The Father's attorney informed the Magistrate that Father, who was employed by the Department of Corrections for 12 years, has a total of $67, 000 in a pension fund managed by the New York City Employees Retirement System ("NYCERS"). The Magistrate adjourned the case to February 21, 2020, when the Magistrate noted that a NYCERS letter dated December 20, 2019, indicated that Father had in fact $67, 674.36 in his account. The Father convinced the Magistrate that NYCERS will release the money, and she adjourned the case to March 20, 2020.

Unfortunately, due to the COVID-19 Pandemic, the matter was administratively adjourned, and the parties next appeared before the Magistrate via Skype on August 3, 2020, when the Mother appeared pro se and Father appeared with counsel. The SCU Statement of that date reflected arrears owed by the Father in the amount of $211, 148.16. According to the August 3, 2020 transcript, the Magistrate again referenced the NYCERS letter acknowledging the $67, 674.36, and it was placed on the record that Father would not be eligible for that money until he turns age 62 in 2025. Negotiations ensued wherein the Father's attorney described the Father as being 58 years old with a "litany of illnesses," and that "the best that he can do" would be to sign his NYCERS pension balance over to the Mother. If that were accepted by the Mother, counsel stated that it would be on the condition that all arrears were deemed "cleaned up, done, finished, gone, goodbye." The Father reported that, as per the legal department at Corrections, a Qualified Domestic Relations Order ("QDRO") had to be filled out, notarized and signed by the judge, wherewith the Mother could obtain the money upon the Father reaching the retirement age.

After informing the Mother of her right to counsel, the Magistrate summarized: "So here's what they're saying * * * is whatever comes out of the NYCERS account, let's just call it in round numbers right now $70, 000, that that would be paid to you in full satisfaction of outstanding arrears. Is that something that you are agreeing to?" To which the Mother responded: "Yes, I agree to it." The Magistrate then stated "I am going to make a note of that, ma'am. Okay? So, once again, you are agreeing to accept the funds that are in the NYCERS for full satisfaction of outstanding arrears." The Mother responded: "if they are going to give it to me in a lump sum." The Magistrate stated: "In order to resolve this, I think the best bet is to get the QDRO in place. I just need to have somebody put that together. Let me see what I can do with the Volunteer Attorney Program." She further stated: "The QDROs are quite technical. They have to be very specific." The Magistrate then described the process of setting up the QDRO: "it's a document that needs to be prepared, sent to you, sent to Mr. London to send to Mr. Yarborough." Thereafter, the Magistrate directed the Father to pay at least $50 per month until Mother receives the NYCERS money, and adjourned the matter to October 5, 2020 for the Voluntary Attorneys Program to assist the Mother in setting up the QDRO. No order was generated by the Magistrate to memorialize the Agreement.

On October 5, 2020, both parties appeared with counsel before the Magistrate via Skype and phone. The SCU statement dated September 29, 2020 reflected $214, 250.72 in outstanding arrears. The Mother's attorney informed the Magistrate that she prepared the QDRO, but that the approval process can take between two to three months. Counsel also indicated that an income withdrawal order will be needed, as well, and that she would prepare it. The Father's attorney informed the Magistrate that the Father consents to a QDRO for all of his funds in the NYCER's account. The Court relieved him from representing the Father and adjourned the case to January 19, 2021, when the...