Opinion
06-10-2016
In the Matter of Steven M. GERHARDT, Petitioner–Respondent–Appellant, v. Melissa S. BAKER, Respondent–Petitioner–Respondent.
Steven M. Gerhardt, Petitioner–Respondent–Appellant Pro Se.
Steven M. Gerhardt, Petitioner–Respondent–Appellant Pro Se.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM: Petitioner-respondent father appeals from an order denying his objections to two orders of the Support Magistrate finding a violation of a prior support order and modifying the prior support order by, inter alia, requiring respondent-petitioner mother to pay child support to the father based on the subject child's change of residence to that of the father and by imputing income to the father. We agree with the father that Family Court erred in denying his objections to the Support Magistrate's orders because he was not properly advised of his right to an attorney on the violation petition brought by the mother (see Family Ct. Act § 262[a][vi] ; Matter of Soldato v. Caringi, 137 A.D.3d 1749, 1749, 28 N.Y.S.3d 537 ), and the Support Magistrate erred in failing to conduct a proper hearing on the father's modification petition. While “[a] hearing on a petition for modification of a support obligation need not follow any particular format” (Matter of Ademovic v. Reid, 1 A.D.3d 899, 899, 767 N.Y.S.2d 735 ), we conclude that the hearing in this matter was “ ‘inherently flawed’ ” (id. ). Here, the father “was not offered an opportunity to testify, nor was he permitted to present the sworn testimony of any other witnesses” (id. ), and the cursory handling of this matter by the Support Magistrate did not provide a substitute for the “ ‘meaningful hearing’ ” to which the father was entitled (id. at 900, 767 N.Y.S.2d 735 ). We therefore reverse the order and remit the matter to Family Court for further proceedings on both petitions in accordance with our decision.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, and the matter is remitted to Family Court, Livingston County, for further proceedings.