Posted On: April 7, 2012 by Stephen Bilkis

Court Reviews Modification of Child Support

The petitioners in this case are Gabriel T. Russo, the Monroe County Department of Social Services and the New York State Department of Social Services. Leonard Rizzo is the respondent.

Motions

The respondent moves to dismiss the petition.

The Monroe County Family Court issued an order of child support where the respondent was charged with supporting his wife and child. No requirement of financial support was issued in this order. However, a change of circumstances is alleged in the petition which requests that the respondent pay a back payment of $4150 to the petitioner.

Case Facts

The respondent's initial child support had been reduced, his wage deduction cancelled and an order issued to return any funds held by the support bureau based on a change in his personal circumstances. This change took place in a modification of the original Order of Support. His circumstances included his increased financial burdens by reason of a new marriage, and the relocation of his wife and child to Florida. His wife had also remarried, and the family was no longer receiving public assistance funds.

A New York Family Lawyer said initially, $50 per week was being deducted from the petitioner’s wages in order to pay child support. In 1975, a petition was filed stating that he was in arrears $4150 on the payments. In March of 1973, the respondent admitted to refusing to support the dependents. However, the motion to dismiss the petition is based upon the divorce the Supreme Court granted in February of that same year. The separation agreement included support payments of $25 per week until the child was 21, and $25 per week for the wife if she remained single.

The respondent claims that the divorce ordered support for his wife so the Family Court could not issue their Order of Support. The law does not allow for liability to support another person when that person is no longer married and is on public assistance. A Long Island Family Lawyer said the initial order of support issues in 1973 was not valid because the court did not have the jurisdiction to issue it. Therefore, the terms of that order would normally no longer apply to the respondent.

The petition as it applies to child support cannot be dismissed though. The portion of the divorce which applies to child support is still applicable, and is enforceable. The original Family Court order would be invalid if the parties of interest were the same in all of the proceedings. The petitioner in the violation proceeding and the original petition however, was the Director of the Monroe County Department of Social Services.

This was the case because the director is authorized to originate proceedings to obtain support for dependents on public assistance. It is also important to note that there are reasons for denying the motion beyond the inability of the director to seek modification or enforcement of any of the proceedings. A Nassau County Family Lawyer said the law differentiates between support to children and spouses under common law and the support of those receiving public assistance. Supporting someone on public assistance is to reimburse the government for money spent supporting the individuals.

Another case relevant to this case took place recently. After a divorce, the husband was required to pay $10 weekly for support of the child. He did not pay for over ten years, and eventually the child moved out from the mother's home and had her own child. However, she moved back in with her mother before she turned 21. The court did not order back pay made to the welfare officer who had been supporting the child, however, it was stated that it did have the authority to demand this until the child turned 21.

Ruling

A new trial was needed to determine whether or not the respondent violated the Family Court order. The arrears named in previous court orders were reduced to half of the original amount.

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