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Wife Brings De Novo Hearing Regarding Support

 

The family case at bar involves a petition for support filed pursuant to the Florida Uniform Reciprocal Enforcement of Support Law. The petitioner-wife seeks a de novo hearing relative to support for the two children of the parties’ marriage as well as support for herself. Respondent-husband, a Suffolk County resident, opposes the petition on the basis that there is presently an existing support order emanating from the Nassau County Family Court and, therefore, the petitioner’s application should be treated as one seeking an upward modification of an order of another court. Respondent contends that the Family Court may transfer the within matter pursuant to Family Court Act Sections 171 and 174 and, therefore, justify this court’s denial of a de novo hearing.

Section 41(1) of the Domestic Relations Law provides that the Uniform Support of Dependents Law ‘. . . shall be construed to furnish an additional or alternative civil remedy and shall in no way affect or impair any other remedy, civil or criminal, provided in any other statute and available to the petitioner in relation to the same subject matter.’ Section 411 of the Family Court Act provides the Family Court with exclusive original jurisdiction over support proceedings initiated under both Article 4 of the Family Court Act and in proceedings under Article 3-A of the Domestic Relations Law, known as the Uniform Support of Dependents Law. In light of this original jurisdiction and the above mentioned Section 41(1) of the Domestic Relations Law, petitioner had a choice to proceed under either the Uniform Support of Dependents Law or seek a transfer of the pending case from Nassau County and then an upward modification and enforcement of that Family Court order pursuant to the Family Court Act.

The fact that there is an existing Family Court order of support of another county is, thus, not relevant since petitioner has not sought to proceed under that section, but rather has chosen to proceed under the Uniform Support of Dependents Law as an ‘additional or alternative’ remedy which is available to her. Her selection leaves the court with no choice but to proceed with a de novo hearing on the question of support under the USDL.

Respondent-husband’s motion is denied. Calendar Department to calendar case for de novo hearing on the first available date.

in another family case a mother, on behalf of herself and four minor children, clearly demonstrates an entitlement to the standard shelter allowance and the approval of a supplemental shelter allowance commensurate with reasonable actual fair market rental values documented for at least a one bedroom apartment in this geographical region during the 2002 year.

The Office of Housing and Inter-governmental Affairs has published “Fair Market Rents” for Suffolk County since 1993. In 1992 the fair market rent for a one-bedroom unit was at least $1,045. The Suffolk County plan entitled “The Crisis of Homelessness in Suffolk County” included a document of “Facts about Housing Costs in Nassau-Suffolk,” showing the decline in rental availability at reasonable values within this region and the broad discrepancy between the public assistance maximum shelter allowance and actual rental value.

The mother selected a small (27 1 square foot) apartment, which is a legal one-family dwelling located at 14 Hickory Street, Wyandanch, New York. The Town of Babylon Building Department has issued a permit to the owner for one-family use dated September 10,2003 which is scheduled to expire June 20,2004. She took occupancy on February 1, 2003 and continues to reside at this residence. The rent charged for the premises is $1,200.00 per month which was reduced by the owner to $900.00 per month, without heat or utilities. She receives a $457.00 standard monthly shelter allowance as part of the public assistance grant to house herself and four infant sons, ages 1, 4, 5 and 8. She is unable to pay the $443.00 difference between the standard shelter allowance and rental value with subsidies from outside employment or assistance from family or friends.

In view of the discrepancy and default in payment the owner of the premises, the owner notified the mother in April 2003 that unless the difference in rental value was paid retroactive to March 2003, he would proceed to evict the family, she applied to SCDSS for a supplemental shelter allowance, which was denied. DSS failed to approve the supplemental shelter value after an inspection of the premises disclosed violations of the New York State Property Maintenance Code, which allegedly threatened the family health and safety.

Dispute exists concerning whether an inspection is required under the circumstances and whether the violations disclosed present a safety factor. It appears that when the recipient entitled to shelter selects the housing which is paid from the standard shelter allowance of the basic grant, an inspection is not required. However, Section 166 of the Social Service Department, and Local Law of Suffolk County permit the SCDSS to withhold a shelter allowance where the housing is dangerous, hazardous or detrimental to life or health. In the event a recipient independently chooses the shelter, SCDSS need not inspect but must verify that the building has a valid Certificate of Occupancy and/or rental permit and does not have a violation of law which is dangerous, hazardous or detrimental to life or health.

Defendants admit that the defendant independently selected the premises. DSS did not inspect, and the recipient was entitled to payment to the owner of the standard shelter allowance included in the basic grant. However, when a supplemental shelter allowance is requested, the defendants contend that the relief requires an inspection of the shelter pursuant to an informal arrangement between counsel for recipient applicants and the defendants.

Violations disclosed in writing appear to render the shelter inadequate or unsafe. While space is minimal, the itemized violations appear to be relatively minor, are reparable and are alleged to have been completed following a Town inspection on August 19, 2003. This could be confirmed upon a follow-up inspection by DSS.

The mother is clearly entitled to preliminary injunctive relief. The applicant is eligible for a supplemental shelter allowance under law. The standard shelter allowance does not cover actual fair rental values in the Nassau or Suffolk community. The shelter is legal and is subject to reasonable repair. Alternative emergency housing in a hotel or motel is not likely larger and is definitely more costly, at least $100.00 per day, $700.00 per week and at least $2,800.00 pet-month as opposed to the $900.00 requested. The current premises also offers the family a home environment rather than a transitory living condition. Thus, preliminary relief is warranted.

The mother has demonstrated the likelihood of success on the merits, that the family will suffer irreparable injury from the failure to supplement the rent differential and that eviction is inevitable, without alternate option.

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