Opinion
File No. 260836
12-02-2022
In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, K.L.T., Petitioner, v. Commissioner of Social Services of the City of New York o/b/o Z.T.J., Respondent.
K.L.T, pro se petitioner Katarzyna Oleszek, Esq. o/b/o Commissioner to the New York City Department of Social Services
Unpublished Opinion
K.L.T, pro se petitioner
Katarzyna Oleszek, Esq. o/b/o Commissioner to the New York City Department of Social Services
Hasa A. Kingo, J.
By an Objection to Support order dated October 24, 2022, Petitioner K. L. T. ("Petitioner") objects to an order of dismissal dated August 11, 2022, and entered on August 12, 2022 by Support Magistrate Kevin Mahoney (the "Magistrate"). The Commissioner of Social Services of the City of New York ("CSS"), appearing on behalf of Respondent Z. T. J. ("Respondent"), filed a rebuttal to the objection. After review of the objection, rebuttal, procedural history and case file, the objection is denied.
Background
Petitioner and Respondent are the parents of a child born July XX, 20XX (the "child"). On January 18, 2017, an order of support was entered in this court that ordered Petitioner to pay weekly child support in the amount of $73.00 and retroactive support in the amount of $350.00 to CSS on behalf of the Respondent (the "order of support"). On May 1, 2022, Petitioner filed a petition to modify the order of support. The matter was scheduled for a first appearance with the Magistrate on August 11, 2022 at 12:40 p.m. in Part 22, to be conducted virtually. A notice of this appearance containing a video link and telephone dial-in for the virtual appearance was emailed to Petitioner and CSS on May 19, 2022. On August 11, 2022, at the appointed time, counsel for CSS appeared before the Magistrate but Petitioner did not. The petition was then dismissed without prejudice due to the Petitioner's failure to appear by an order dated August 11, 2022 (the "dismissal order").
Paternity of the child was established by an Order of Filiation dated May 12, 2016, entered in the Queens County Family Court.
On or about October 24, 2022, Petitioner filed the instant objection. An affidavit of service that indicates it was served upon Respondent was filed with the objection, which was then returned to Petitioner by the court clerk on November 3, 2022, due to lack of proof of service upon CSS. Petitioner did not resubmit the objection with proof of service upon CSS. Nevertheless, CSS filed a rebuttal on November 16, 2022. Both the objection and the rebuttal were then processed by the court clerk on November 21, 2022.
The petitioner's objection states the following:
I called in on family court and was placed in a waiting room for over 45 minutes. Afterwards I was then placed in another case hearing in which the Judge asked for my full name and the time of my hearing today, he then proceeded to tell me a decision has already been made on my case and I would receive a letter in the mail that ended the call before I would [sic] say anything. I didn't reach out to the court sooner due to exploring different jobs opportunities and different work programs to better find a successful job by obtaining my G.E.D.
CSS argues in its rebuttal that the objection should be denied because the Magistrate did not err a matter of law or fact, and the order is supported by the record. CSS also argues that the objection was untimely.
Discussion
Family Court Act § 439 (a) empowers Support Magistrates "to hear, determine and grant any relief within the powers of the Court," in proceedings properly before them. FCA § 439 (e) provides that the Support Magistrate's determination "shall include findings of fact and... a final order of support." The parties are permitted by statute to submit "specific written objection to a final order of a support magistrate" for "review" by a Family Court judge. The review of the Support Magistrate's order is essentially equivalent to an appellate review of such an order (see Matter of Cherrez v Lazo, 102 A.D.3d 781, 782 [2d Dept 2013]). The scope of that review, however, is narrow, and confined to whether the Support Magistrate, as the trier of fact, has made the necessary findings of fact and whether, upon review of the record, the findings of fact present a reasonable basis for that order. The findings of the Magistrate must be given great deference, as they are in the best position to assess the credibility of the witnesses and the evidence proffered (see Anthony L. v Bernadette R., 193 A.D.3d 510, 510 [1st Dept 2021]).
The dismissal order issued by the Magistrate in this instance is not "a final order of support" as pursuant to FCA § 439 (e) and is not subject to review under the objection process delineated by the statute, which contemplates review of a decision made on the merits, following a fact finding. The dismissal was procedural, there was no fact finding, and there were no conclusions of law, and therefore, FCA § 439(e) does not apply. Thus, the objection is denied. If the petitioner seeks to vacate the order of dismissal, he may do so by filing a motion to vacate pursuant to CPLR § 5015 (a). Alternatively, the Petitioner may elect to simply refile the petition because the dismissal was without prejudice.
Although not dispositive, the court notes that CSS also argues that the objection was untimely. Although Petitioner's objection was filed beyond the deadline set forth in FCA § 439 (e), the court record is lacking with regard to when the parties were served with a copy of the dismissal order. Thus, Petitioner's objection cannot be considered untimely (see FCA § 439 [e]; Matter of Lisa C. v Mark C., 169 Misc.2d 205 [Monroe County 1996]; Matter of Jeanne S. v Salvatore S., 49 A.D.3d 330 [1st Dept 2008] citing Commissioner of Social Services v. Dietrich, 208 A.D.2d 474 [1st Dept 1994]).
This constitutes the decision and order of the court.
Notify parties.