Onondaga Cnty. Dep't of Soc. Servs. ex rel. December R.M. v. Marcus N.D., 1131

• Decision Date: 15 March 2019
• Docket Number: 1131,CAF 17–01276
• Parties: In the Matter of ONONDAGA COUNTY DEPARTMENT OF SOCIAL SERVICES, ON BEHALF OF DECEMBER R.M., Petitioner–Respondent, v. MARCUS N.D., Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1561
94 N.Y.S.3d 527 (Mem)

In the Matter of ONONDAGA COUNTY DEPARTMENT OF SOCIAL SERVICES, ON BEHALF OF DECEMBER R.M., Petitioner–Respondent,
v.
MARCUS N.D., Respondent–Appellant.

1131
CAF 17–01276

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: March 15, 2019

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR RESPONDENT–APPELLANT.

LAL, GINGOLD & FRANKLIN, PLLC, SYRACUSE (SUJATA LAL OF COUNSEL), FOR PETITIONER–RESPONDENT.

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, CURRAN, AND TROUTMAN, JJ.

94 N.Y.S.3d 528

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Respondent was adjudicated the father of the subject child by a 1999 order of filiation entered on respondent's default. He moved by order to show cause filed in 2016 to vacate the default order of filiation and cancel his child support arrears, after another man was adjudicated the father of the same child in a Mississippi court, based upon, inter alia, DNA test results. He now appeals from an order that granted his motion in part and vacated the order of filiation, but denied that part of his motion seeking to vacate the arrears. We affirm.

The Family Court Act grants Family Court continuing jurisdiction over any child support proceeding, including the power to modify or vacate orders issued thereunder, but the Act unequivocally provides that the court "shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section" (§ 451[1] ). The purpose of that provision is to "preclude[ ] forgiveness of child support arrears to ensure that respondents are not financially rewarded for failing either to pay the order or to seek its modification ... Under the present enforcement scheme, then, [n]o excuses at all are tolerated with respect to child support" ( Matter of Dox v. Tynon , 90 N.Y.2d 166, 173–174, 659 N.Y.S.2d 231, 681 N.E.2d 398 [1997] [internal quotation marks omitted]; see ...