Opinion
F-00861-08/18F
01-08-2019
In the Matter of a Support Proceeding, Mary Anne Conley, Petitioner, v. Alex Behrns and Jamie Behrns, Respondents.
Carol Barbash, Esq. Family Law Division Director of Legal Services Rockland County DSS 845-364-3056 Edward Lussen Coordinator RCDSS CSEU For Carol Barbash, Esq. Director of Legal Services Family Law Division RCDSS Objector
Carol Barbash, Esq. Family Law Division Director of Legal Services Rockland County DSS 845-364-3056 Edward Lussen Coordinator RCDSS CSEU For Carol Barbash, Esq. Director of Legal Services Family Law Division RCDSS Objector Keith J. Cornell, J.
Before the Court is an objection to the November 9, 2018 Order modifying an Order of Support on Default (the "Order") and Findings of Fact and Decision of the same date (the "Decision"), which Order and Decision found that the payee of a child support order could only be changed retroactively to the date of the filing of petition to modify, rather than the date of the change of residential custody of the child. On behalf of the Petitioner, Mary Anne Conley, the paternal grandmother ("PGM") and residential custodian of C.B., the child for whom the support is paid, Rockland County Department of Social Services ("RCDSS") Child Support Enforcement Unit ("CSEU") filed the instant objection on December 17, 2018.
Background
C.B. was born in October 2004 to Alex Behrns (the "Father") and Jamie Behrns, (the "Mother"). In 2008, he was removed from his parents' custody pursuant to a petition by RCDSS Child Protection Services ("CPS") that alleged neglect. C.B. was placed with his maternal grandmother, Shari Hahn (the "MGM"). Within two months of removal, RCDSS CSEU brought initial support petitions against both parents. Until C.B. was returned to his Mother's custody in mid-2009, his MGM received support payments through CSEU from both of his parents.
When C.B. was returned to the custody of the Mother, support modification petitions were filed and granted to eliminate the Mother's obligation to pay support and to modify the Father's obligation to the limited degree of changing the payee from the MGM to the Mother. A few years later, in September 2012, C.B. returned to his MGM's custody. Within two months, RCDSS filed a petition to modify the Father's support order, requesting a change in beneficiary from the Mother back to the MGM. C.B. returned to his Mother's custody in November 2014. RCDSS filed a petition within two weeks to modify the order of support for the purpose of changing the payee of the Father's support order back to the Mother.
On April 20, 2017, Maryanne and Kenneth Conley, the paternal grandparents (the "PGPs") filed a petition for guardianship of C.B. On June 14, 2017, the PGPs received a temporary order appointing them as the guardians of C.B. Apparently in response to the temporary guardianship order, CSEU ceased sending the Father's support payments to the Mother. For reasons that are not clear, RCDSS did not immediately file a petition to modify the Father's support obligation. Instead, the funds were held by CSEU pending the outcome of the PGPs' guardianship petition. On October 20, 2017, the parents and PGPs entered into a settlement. The Father, Mother and PGPs agreed to share legal custody of C.B. The PGPs were awarded physical custody of C.B. Both parents were awarded visitation.
On January 11, 2018, perhaps with the support of CSEU, the PGM filed a petition for support against both parents. In the petition, the PGM requested that the Mother be ordered to pay support and that payee of the Father's outstanding support order be changed from the Mother to the PGM. The petition was bifurcated and the petition against the Father was dismissed because an order of support already existed. The petition against the Mother was heard on June 15, 2018. On consent, the Mother stipulated to pay child support for C.B. to the PGM effective January 11, 2018, the date of the petition. The Mother's arrears were set at $250 and her ongoing obligation was set at $50 per month.
On May 21, 2018, RCDSS filed a petition on behalf of the PGM requesting modification of the existing support order against the Father. The petition sought only to change the payee from the Mother to the PGM. The petition was dismissed for failure to properly serve the Respondent Mother. The PGM refiled the limited modification petition on September 10, 2018. Service on the Mother was properly effected and an inquest was scheduled for November 9, 2018.
Support Magistrate Rachelle Kaufman held the inquest, at which CSEU and the PGM appeared. The Father's appearance was excused, as he had previously consented to the requested change of the payee from the Mother to the PGM. The Mother did not appear. In addition to changing the payee, at the inquest, CSEU and Petitioner requested an order directing CSEU to release the funds that accrued since June 14, 2017, when CSEU ceased disbursing the Father's support payments to the mother.
The Support Magistrate found that C.M. had been in the physical custody of the PGPs since at least June 14, 2017. Therefore, the Support Magistrate granted the petition to change the payee of the support order from the Mother to the PGM. However, because the Mother had not consented to the modification, the Support Magistrate limited the modification order retroactive to the date of the petition, September 10, 2018. The Decision cited Family Court Act § 449(2), which states that "any order of child support made under this article shall be effective as of the . . . date of the filing of the petition therefore." The Decision also cited Manocchio v. Mannochio, 16 AD3d 1126, 1127 (4th Dept. 2005), which held that "a support order may not be made effective prior to the date of the filing of the petition." The Support Magistrate therefore concluded that she was without the authority to modify the support order prior to the date of the filing of the most recent petition, September 2018.
CSEU filed the instant objection. CSEU stated that it has collected $3,192.16 from the Father for C.B.'s support since June 14, 2017. CSEU argued that it would be contrary to public policy to prevent the custodial grandparent from receiving the child support paid by the Father since June 14, 2017. CSEU cited Modica v. Thompson, 300 AD2d 662 (2d Dept. 2002), which affirmed a decision from this Court directing CSEU to release collected but undispersed child support to a grandparent who had acquired custody of a grandchild. CSEU also cited Family Court Act § 451, which grants the Family Court continuing jurisdiction over support proceedings.
No rebuttal to the objection was filed.
Discussion
A child support order is made in favor of a child, not the parent or guardian. See, e.g. Leggio v. Devine, 158 AD3d 803 (2d Dept. 2018). The custodial parent or guardian is no more than a conduit of support from the noncustodial parent to the child. See Modica v. Thompson, 300 AD2d 662, 663 (2d Dept. 2002); Comm. of Soc. Serv. ex rel Lachs v. Grifter, 150 Misc 2d 209, 212 (Fam. Ct. NY Co. 1991). New York Social Services Law codifies this rule in Section 111-h(4), stating that "[a]ny and all moneys paid into the support collection unit pursuant to an order of support . . . [shall] be deemed for all purposes to be the property of the person for whom such money is to be paid." (emphasis added). Cf. Hawkins v. Berlin, 26 NY3d 417, 422 (2015) ("support payments . . . flow directly to the person who is entitled to them.").
The regulations that direct the operations of CSEU are found at 18 NYCRR § 347 et seq. CSEU has an affirmative obligation to review child support orders and seek adjustments as appropriate. See id. § 347.3. When CSEU determines that a change may be necessary, the agency is required to "immediately petition or otherwise assist the recipient of services to petition the Family Court . . . for modification of the order of support." Id. § 347.8(c)(2)(ii). Here, for reasons that are not known to this Court, rather than immediately filing the modification petition per the regulations, CSEU unilaterally stopped forwarding support payments to the Mother in 2017 when the PGM was awarded temporary guardianship. It is not clear under what regulatory or statutory authority CSEU acted when it ceased forwarding payments to the Mother without a court order. See id. § 347.13(e) (requiring disbursement of support collections to the family within two business days of the end of the month in which the support is collected).
As the previous assignor of the support order, the Mother clearly had a due process right to notice and opportunity to be heard prior to any decision on how to direct the Father's support payments. See Comm. Of Soc. Serv. ex rel. Sandra J. v. Stephen J., 180 Misc 2d 598, 601 (Fam. Ct. NY Co. 1999). Therefore, the Support Magistrate's decision to require service on the Mother of the petition to change the payee was clearly correct.
However, the Support's Magistrate's reliance on FCA § 449 to limit the effective date of the modification to the date of petition creates an untenable result in this particular matter. While the Family Court lacks general jurisdiction in equity, see Matter of Brescia v. Fitts, 56 NY2d 132, 139 (1982), the Court of Appeals has stated that "statutory jurisdiction—as Family Court has—carries with it such ancillary jurisdiction as is necessary to fulfill the court's core function." H.M. v. E.T., 14 NY3d 521, 527 (2010). Cf. id. at 527. (holding in concurring opinion that definition of parent must include same sex partners because to do otherwise would lead to unacceptable result).
Family Court specifically retains continuing jurisdiction over support proceedings. See FCA § 451. Pursuant to that continuing jurisdiction, in an analogous situation, the Appellate Division Second Department affirmed an order from this Court (Garvey, J.) that awarded accrued support payments to a grandmother from a date prior to the filing of the petition for modification. See Modica, 300 AD2d at 663. In Modica, the petition was filed in October 2001, but the Family Court awarded funds that had accrued with CSEU since December 2000. In affirming the Family Court decision, the Second Department wrote, "consonant with the statutory scheme and the public policies it embodies, the accrued child support payments were property awarded to [the maternal grandmother], who had custody of the child and was charged with her care during the relevant period." Id. See also DSS ex rel. Angela C.M. v. Douglas D., 226 AD2d 633 (2d Dept. 1996) (reversing family court order that held that modifying the father's support obligation could only be retroactive to the filing of the DSS's petition for such relief).
In Modica, the Second Department found that "[i]t would be contrary to the statutory scheme of the Family Court Act and the public policies it embodies to order the child support payments accrued after the mother's death to be returned to the appellant when he neither had custody of the child nor sought to otherwise modify his child support obligation during the relevant period." Id., 300 AD2d at 663. Similarly, it would be contrary to public policy to direct that the funds held by CSEU in this case be returned to the non-custodial Father or forwarded to the non-custodial Mother, neither of whom seek such relief.
Unfortunately, the apparently unauthorized cessation of support payments to the Mother by CSEU in 2017, coupled with the unexplained delay by CSEU in filing the petition to change the payee, resulted in the collection of 14 months of funds by CSEU that rightly belong to the child. Limiting the change of payee to the date of the petition, when there is no dispute as to the date that the PGM became the custodial adult, in effect punishes the child for administrative errors completely beyond his control. Therefore, given the lack of opposition by any party to the desired resolution, the strong public policy in favor of proper distribution of child support, and the overall statutory goal of the Family Court Act to promote the best interests of the child,
IT IS HEREBY ORDERED AND ADJUDGED that CSEU's Objection is GRANTED; and it further
ORDERED that CSEU is directed to release all child support funds accrued from July 14, 2017 through September 10, 2018 from the Father on behalf of C.B. to the Paternal Grandmother, Petitioner Mary Anne Conley, for use in C.B.'s best interests.
The foregoing shall constitute the decision and order of this Court. Dated: January 8, 2019 New City, New York Keith J. Cornell, Acting Judge Family Court