Opinion
Nos. 2022-07346 2022-07348 Docket No. F-11125-19
12-04-2024
In the Matter of Valerie O'Connor, appellant, v. Kenneth Shaw, respondent.
Valerie O'Connor, Chappaqua, NY, appellant pro se. Kenneth Shaw, Chappaqua, NY, respondent pro se.
Valerie O'Connor, Chappaqua, NY, appellant pro se.
Kenneth Shaw, Chappaqua, NY, respondent pro se.
MARK C. DILLON, J.P. PAUL WOOTEN, BARRY E. WARHIT, LILLIAN WAN, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 4, the mother appeals from (1) an order of the Family Court, Westchester County (Rosa Cabanillas-Thompson, S.M), dated April 8, 2022, and (2) an order of the same court (Nilda Morales Horowitz, J.) dated June 21, 2022. The order dated April 8, 2022, insofar as appealed from, after a hearing, granted the mother's petition for an upward modification of the father's child support obligation only to the extent of awarding her the sum of $1,544.29 per month by applying Colorado law. The order dated June 21, 2022, denied the mother's objections to that portion of the order dated April 8, 2022.
ORDERED that the appeal from the order dated April 8, 2022, is dismissed, without costs or disbursements, as that order was superseded by the order dated June 21, 2022; and it is further, ORDERED that the order dated June 21, 2022, is reversed, on the law, without costs or disbursements, the mother's objections to so much of the order dated April 8, 2022, as granted her petition to modify and recalculate the father's child support obligation only to the extent of awarding her the sum of $1,544.29 per month by applying Colorado law are granted, that portion of the order dated April 8, 2022, is vacated, and the matter is remitted to the Family Court, Westchester County, for further proceedings in accordance herewith.
The parties, who have two children, divorced in 2018 in the state of Colorado. Pursuant to an order of the District Court, Boulder County, in the state of Colorado (hereinafter the Colorado support order), the parties were to recalculate child support on an annual basis pursuant to Colorado Revised Statutes § 14-10-115(14). In August 2018, the parties and their children relocated from Colorado to New York and have resided in New York since that time.
In November 2020, the mother filed a petition for an upward modification of the father's child support obligation. Following a hearing, in an order dated April 8, 2022, a Support Magistrate, inter alia, granted the mother's petition to the extent of directing the father to pay child support in the sum of $1,544.29 per month, which was the father's presumptive child support obligation under Colorado Revised Statutes § 14-10-115. The mother filed objections to that portion of the Support Magistrate's order. In an order dated June 21, 2022, the Family Court denied the mother's objections. The mother appeals.
"The Uniform Interstate Family Support Act..., 'adopted in New York as article 5-B of the Family Court Act, grants continuing, exclusive jurisdiction over a child support order to the state that issued the order'" (Matter of Sherman v Killian, 225 A.D.3d 771, 772, quoting Matter of Salim v Freeman, 204 A.D.3d 677, 678; see Matter of Spencer v Spencer, 10 N.Y.3d 60, 66; Matter of Deazle v Miles, 77 A.D.3d 660, 662, citing Family Ct Act § 580-205[a]). "As relevant herein, the issuing state loses such jurisdiction where none of the parties or children continue to reside in that state" (Matter of Deazle v Miles, 77 A.D.3d at 662; see Family Ct Act § 580-613[a]). Here, it is undisputed that the parties and their children reside in New York and that the mother registered the Colorado support order in this state. Thus, the Family Court, Westchester County, had jurisdiction to adjudicate the proceeding (see 28 USC § 1738; Family Ct Act §§ 580-611[a]; 580-613[a]; see also Matter of Paskuly v Lowenkron, 17 A.D.3d 1007, 1009; Matter of Saxton v Saxton, 267 A.D.2d 688, 689).
Further, Family Court Act § 580-613(b) provides that, in a modification proceeding brought pursuant to section 580-613(a), the court "shall apply... the procedural and substantive law of this state" (see Matter of Brooks v Brooks, 171 A.D.3d 1462, 1463; Matter of Saxton v Saxton, 267 A.D.2d at 689). Here, the Support Magistrate improperly applied Colorado law in calculating the father's modified support obligation (see Family Ct Act § 580-613[b]; Matter of Brooks v Brooks, 171 A.D.3d at 1463; Matter of Saxton v Saxton, 267 A.D.2d at 689). Accordingly, the Family Court should have granted the mother's objections.
We remit the matter to the Family Court, Westchester County, for recalculation of the father's modified child support obligation in accordance with the Child Support Standards Act (see Domestic Relations Law § 240[1-b]), following a hearing, if necessary, to adduce evidence relevant to that recalculation (see Matter of Napolitano v Napolitano, 217 A.D.3d 948, 950).
DILLON, J.P., WOOTEN, WARHIT and WAN, JJ., concur.