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Appellant Claims Order to Pay Child Support in Arrears is Incorrect

A New York Family Lawyer said in a matrimonial action in which the parties were divorced by judgment, the defendant former husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, as granted those branches of the plaintiff former wife’s motion which were for awards of child support arrears and counsel fees, and from a money judgment of the same court, which is in favor of the plaintiff and against him.

A New York Custody Lawyer said the appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the money judgment. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the money judgment.

A Westchester County Family Lawyer said contrary to the Supreme Court’s determination that a plenary action was necessary to enforce the parties’ stipulation of settlement incorporated but not merged into the judgment of divorce, the plaintiff’s post-judgment motion was a proper vehicle to ascertain the defendant’s child support arrears, if any, that have accrued under that judgment of divorce. The Court also disagree with the Supreme Court’s conclusion that an order determining the defendant’s arrears, modified the child support provisions of the parties’ stipulation of settlement incorporated into the judgment of divorce, or set a new recurring amount of child support that the defendant was required to pay going forward.

A Westchester County Custody Lawyer said further, it was error to simply award the plaintiff arrears based upon the records of the Nassau County Collection Unit submitted in support of the plaintiff’s motion. Rather, the Supreme Court should have determined the defendant’s child support obligation for the relevant years by applying the child support formula provided in the parties’ stipulation of settlement, which in this case required the court to first determine the defendant’s income during the relevant time period, and then apply the percentage-based formula from the stipulation of settlement. On remittitur, the Supreme Court should determine the dates that the parties’ three children were emancipated and abate the child support obligation proportionately as the parties provided for in the stipulation of settlement. After comparing the defendant’s child support obligation for the years in question to the actual amounts of child support paid, the Supreme Court should then enter a judgment in favor of the plaintiff and against the defendant for arrears, if any are shown to exist.

In light of the foregoing, we also remit the matter to the Supreme Court, Nassau County, for a new determination of that branch of the plaintiff’s motion which was for an award of counsel fees.

The parties’ remaining contentions are academic in light of our determination.

In another Child support case, a hearing on the petition was scheduled to be held, in the Family Court, Nassau County. The mother appeared in court that morning, pro se, but allegedly became ill before the case was called. The mother submitted an adjournment request, indicating that she was ill, and then left the courthouse, allegedly to go see a doctor. When the case was called at approximately 3:00 P.M., the Support Magistrate acknowledged receiving the adjournment request, but proceeded with the hearing in the mother’s absence, in effect, denying the mother’s request for an adjournment. Thus, when the Family Court granted the father’s petition, it did so on the mother’s default. “However, notwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from the order brings up for review those ‘matters which were the subject of contest’ before the [Family] Court” Accordingly, review is limited to the denial of the mother’s request for an adjournment.

In a child support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Nassau County, as corrected by an order of the same court, which denied her objections to two orders of the same court, entered upon her default in appearing at a hearing, after the denial of her request for an adjournment, inter alia, granting the father’s petition for leave to enter a money judgment for overpayment of child support arrears and to vacate a child support order.

The Court ordered that the appeal from the order, as corrected by the order, is dismissed except insofar as it brings up for review the denial of the mother’s request for an adjournment, without costs or disbursements; and it is further ordered that the order, as corrected by the order, is reversed insofar as reviewed, on the facts and in the exercise of discretion, without costs or disbursements, the orders, are vacated, the mother’s objection to the denial of her request for an adjournment is sustained, and the matter is remitted to the Family Court, Nassau County, for a new hearing and a new determination on the petition thereafter.

“The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” Under the particular circumstances of this case, however, the Support Magistrate improvidently exercised her discretion in denying the mother’s application for an adjournment.

Accordingly, the Court grant the mother’s objection to the denial of her request for an adjournment, and remit the matter to the Family Court, Nassau County, for a new hearing on the petition, and a new determination thereafter.

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