2017 NY Slip Op 03549
May 3, 2017
2017 NY Slip Op 03549
May 3, 2017
2017 NY Slip Op 01343
February 22, 2017
This case involves the enforcement of a sister-state divorce judgment, with respect to arrears in alimony and support payments, pursuant to the ‘Uniform Enforcement of Foreign Judgments Act’ (article 54 of the CPLR) brought before the Supreme Court, Special Term.
Sometime in Junuary 1973, the plaintiff-wife commenced an action for divorce in the Superior Court of the State of Connecticut where she was then living and has continued to reside with her two minor children. On 16 April 1973, while the action was pending, the parties executed a separation agreement – semimonthly payments to the plaintiff for alimony and child support, among others. Thereafter, the plaintiff was granted a judgment of absolute divorce by the Connecticut court, specifically incorporating the terms of the separation agreement, the agreement surviving and not merging into the decree.
Defendant resided in Manhattan when the separation agreement was executed, and in Brooklyn when the divorce judgment was granted. There is no question of the defendant appearing in and being represented by counsel in the divorce action. Defendant currently lives in Brooklyn and is a practicing veterinarian.
2017 NY Slip Op 01529
March 1, 2017
The appellate court affirms the judgment.
In this proceeding pursuant to Article 78 of the CPLR, the petitioners, Probation Officers with permanent status in the Nassau County Probation Department, question the authority of the respondent, as the State Administrator of the Judicial Conference of the State of New York to exercise jurisdiction over the examinations for positions in the Probation Department and the reasonableness of the eligibility requirements fixed by him for the promotion examination that was to be conducted on November 18, 1967 for the position of Supervising Probation Officer.
Specifically, petitioners urge: that the Nassau County Probation Department is not a part of the unified court system of the State of New York; that the reduction in eligibility requirements for candidates from those specified in Exhibit B (Nassau County Civil Service Commission notice of examination dated December 15, 1962) to those specified in Exhibit A (announcement for written test on November 18, 1967 of Administrative Board of the Judicial Conference) so that persons with less experience and training would be eligible, would result in placing supervision in the hands of persons who were not qualified, and would increase from 36 to 80 the number of probation officers eligible to take the examination.
Examination of the papers submitted and of the law satisfied the Court that the Administrative Board has jurisdiction over the subject matter and that it was not unreasonable for it, through its administrator, to adopt the requirements for the position as revealed in Exhibit A.
This court has before it objections to the decision and order of Hearing Examiner Miklitsch dated April 4, 1994. The petitioner, represented by the County Attorney of Rockland County, objects to the dismissal of her petition brought under Article 3-A of the Domestic Relations Law which sought enforcement of a Kings County Family Court order of support and collection of arrears.
The issue to be decided is whether a petitioner who is a resident or domiciliary of one county of the State of New York can maintain a proceeding under Article 3-A of the Domestic Relations Law to enforce the terms of a New York State order of child support against a respondent who is a resident or domiciliary of another county of the State of New York.
“In reviewing a determination of the Family Court, deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses”.
The Support Magistrate properly found that the father was in arrears for the sum of $1,365.13 for his pro rata share of unreimbursed medical expenses of the parties’ two sons. The mother’s testimony at the fact-finding hearing and her submissions of medical expense receipts satisfied her initial burden of presenting prima facie evidence of the father’s nonpayment of this amount. The father proffered no proof of having reimbursed the mother for any of the medical expenses for which she sought reimbursement.
In August 1993 the parties entered into an agreement which provided, inter alia, that the father would pay the mother specified child support until their two children were emancipated, as that term was defined therein. Pursuant to the agreement, emancipation was triggered, in relevant part, upon the child’s residence away from the mother’s residence, “not including attendance at college.” The parties were divorced, and the agreement was incorporated but not merged into the judgment of divorce.
The father filed a petition, seeking to suspend his child support obligation and to adjust his child support arrears accordingly, alleging a change in circumstances in that the parties’ youngest child was living with him, and their oldest child was living at college. The mother filed a petition alleging that the father was in violation of his child support obligation, and for an award of child support arrears.
“A party seeking downward modification of a support obligation has the burden of showing a change in circumstances and that he used his best efforts to obtain employment commensurate with his qualifications and experience”. “In determining a change of circumstances, a court need not rely upon the party’s account of his or her finances, but may impute income based upon the party’s past income or demonstrated earning potential”. However, “[w]hile a support magistrate is afforded considerable discretion in determining whether to impute income to a parent, a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion”.
Although the Family Court did not explicitly state the amount of income imputed to the father, in effect, it imputed to him an income of $80,000, since it left in place the basic support obligation previously determined, which was based on the father’s income in 2001, when he was employed by a firm. This was an improvident exercise of discretion, as it was undisputed that the father had been laid off from said firm in 2002, and is now employed at a much lower salary as a quality assurance technician.
A New York Family Lawyer said that, in a proceeding to determine child custody pursuant to Family Court Act article 6, in which the mother cross-petitioned for modification of an order of the Family Court, Bronx County, dated May 2, 1986, granting the father custody of the parties’ daughter, the father appeals from a dispositional order of the Family Court, Nassau County, entered August 4, 1989, which, after a hearing, granted permanent custody of the parties’ two children to the mother.
A New York Divorce Lawyer said that, by petition dated April 12, 1988, the appellant, a resident of Nassau County, requested legal custody of his son, who was born in 1987. In his petition, he asserted that he had been left with physical custody of his son since March 5, 1988, when the respondent mother “moved to the Bronx by herself”. However, the evidence adduced at the subsequent hearing reveals that the mother took her son with her when she left.
A Bronx Family Lawyer said that, in her cross petition dated March 29, 1988, the mother confirmed that until March 1988 she resided with the appellant along with their son and their daughter, who was born in 1982. She alleged that she left the appellant’s residence in March and that he refused to allow her to take her daughter with her. She requested modification of a prior order of the Family Court, Bronx County, dated May 2, 1986, pursuant to which custody of the daughter had been awarded to the appellant, and further requested permanent custody of the daughter. On July 27, 1988, the Family Court, Nassau County, granted temporary custody of Christopher to the mother. The daughter remained in the custody of the appellant. After a hearing, the Family Court, in the order appealed from, awarded permanent custody of both children to the mother.