Opinion
1199 CAF 20-00660
02-05-2021
In the Matter of ONEIDA COUNTY DEPARTMENT OF SOCIAL SERVICES, ON BEHALF OF Gloria CHRISTMAN, Petitioner-Appellant, v. Joshua BLEAU, Respondent-respondent.
TRACY L. PUGLIESE, ROME, FOR PETITIONER-APPELLANT.
TRACY L. PUGLIESE, ROME, FOR PETITIONER-APPELLANT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner appeals from an order denying its objection to an order of the Support Magistrate, which had granted its petition seeking an upward modification of respondent father's support obligation to the extent of directing the father to pay child support in the amount of $58 per week retroactive to the date the petition was filed. On appeal, petitioner contends that the Support Magistrate erred in directing that the modification of child support be retroactive to the date on which petitioner filed the petition, instead of the earlier date upon which the father was released from incarceration, and that Family Court therefore should have granted its objection. We affirm.
Although we agree with petitioner that, under certain circumstances, the court may order an upward modification of child support retroactive to a date prior to the filing of the modification petition (see Matter of Oneida County Dept. of Social Servs. v. Abu-Zamaq , 177 A.D.3d 1412, 1413, 114 N.Y.S.3d 542 [4th Dept. 2019] ; Matter of Department of Social Servs. v. Douglas D. , 226 A.D.2d 633, 634, 641 N.Y.S.2d 388 [2d Dept. 1996] ; Matter of Monroe County Dept. of Social Servs. v. Campbell , 161 A.D.2d 1176, 1177, 555 N.Y.S.2d 967 [4th Dept. 1990] ; see also Family Ct Act § 451 ), on this record, petitioner failed to present sufficient evidence supporting an upward modification retroactive to a date earlier than that ordered by the Support Magistrate (see generally Matter of Rosenthal v. Buck , 281 A.D.2d 909, 909-910, 723 N.Y.S.2d 773 [4th Dept. 2001] ). Moreover, contrary to petitioner's contention, Family Court Act § 449 (2) does not permit the court to direct that the child support modification be retroactive to the date the father was released from incarceration under the circumstances of this case (see generally Matter of Broome County Dept. of Social Servs. v. Short , 234 A.D.2d 772, 772-773, 651 N.Y.S.2d 220 [3d Dept. 1996] ). We have considered petitioner's remaining contentions and conclude that they lack merit.