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Matter of Commissioner of S.S. v. McDonald

Appellate Division of the Supreme Court of New York, Second Department
Dec 22, 1997
245 A.D.2d 506 (N.Y. App. Div. 1997)

Opinion

December 22, 1997

Appeal from the Family Court, Westchester County (Braslow, J.).


Ordered that the order entered October 4, 1996, is reversed, on the law, without costs or disbursements, the objections are sustained, the order dated June 27, 1996, is vacated, and the matter is remitted to the Family Court, Westchester County, for a new determination of child support consistent herewith.

Since the respondent mother defaulted in appearing, her child support obligation should have been determined pursuant to Family Court Act § 413 (1) (k) ( see, Matter of New York City Commr. of Social Servs. v. Hills, 203 A.D.2d 574). Although the respondent mother was receiving public assistance, that fact did not conclusively establish her inability to pay child support ( see, Matter of Ludwig v. Reyome, 195 A.D.2d 1020; see also, Matter of Edwards v. Johnson, 233 A.D.2d 884).

Although a respondent parent must be given the opportunity to rebut the presumption that the application of the child support guidelines results in the correct amount of child support to be awarded ( see, 42 U.S.C. § 667 [b] [2]; Matter of Rose [Clancy] v. Moody, 83 N.Y.2d 65, cert denied sub nom. Attorney Gen. of N Y v. Moody, 511 U.S. 1084), in this case the respondent never took advantage of that opportunity. Accordingly, upon remittal, "the court shall order child support based upon the needs or standard of living of the child, whichever is greater" (Family Ct Act § 413 [k]).

Ritter, J. P., Sullivan, Goldstein and Lerner, JJ., concur.


Summaries of

Matter of Commissioner of S.S. v. McDonald

Appellate Division of the Supreme Court of New York, Second Department
Dec 22, 1997
245 A.D.2d 506 (N.Y. App. Div. 1997)
Case details for

Matter of Commissioner of S.S. v. McDonald

Case Details

Full title:In the Matter of COMMISSIONER OF SOCIAL SERVICES, on Behalf of TRACY…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 22, 1997

Citations

245 A.D.2d 506 (N.Y. App. Div. 1997)
666 N.Y.S.2d 717

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