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Petitioner Reopens Child Support Case


A New York Family Lawyer said that, in this proceeding, the Commissioner of Social Services, as assignee of the non-party mother, seeks child support from appellant father for the couple’s two children, claiming that the mother’s active welfare case constitutes a “change in circumstances” mandating revision of the parties’ previously negotiated agreement, pursuant to which the mother and father waived the right to child support from each other. A New York Custody Lawyer said it was not claimed that there had been a change in the financial circumstances of the mother, other than the fact of the opening of a welfare case. Because the father was denied the opportunity to obtain any discovery concerning the mother’s welfare case, it could not be verified that there had, in fact, been a change in circumstances in the mother’s finances so as to warrant a modification of the parties’ support decree.

A Brooklyn Family Lawyer said the mother and father were divorced in Supreme Court, Kings County, in March 2003. Pursuant to a stipulation, incorporated in their judgment for divorce, the parties agreed to a 50/50 sharing of physical custody of their two daughters. The parties represented that they had been advised of the provisions of the Child Support Standards Act, and each agreed that they would deviate from that standard and waive any right pursuant to the guidelines. The stipulation, entered on the record, provided that “the deviation is based on the fact that the parties are sharing expenses and sharing the custodial time with the children,” and that as a result, “neither party shall be paying child support to the other party.”

A Brooklyn Child Custody Lawyer said that, the parties agreed to retain his or her own separate property, and to waive any rights as to the other’s property. The parties exchanged net worth statements and relied on the representations therein with respect to finances. Each party acknowledged that he or she had been made aware of the factors affecting income and property, including the present and future earning capacity of each party, and the ability of each party to be self-supporting. Each party released and discharged the other from any and all claims, including present and future claims for alimony and maintenance, and each specifically acknowledged that he or she was self-supporting. The net worth affidavit submitted by the mother in connection with the proceeding indicated that she was a sculptor, self-employed, with a gross income of $15,000, assets in the amount of $2,000 and liabilities in the amount of approximately $31,000. In October 2002, the mother requested permission to relocate to Lower Manhattan, where she had been accepted into an artists’ community. The mother subsequently and apparently in defiance of the parties’ stipulation moved to Manhattan and commenced a custody proceeding in the Family Court, New York County. On or about August 2, 2004, the mother applied for welfare.

A New York Child Custody Lawyer said that, by petition dated August 2, 2004, petitioner Commissioner, as assignee of the mother, sought an order directing appellant father to pay support for the subject children. On or about October 12, 2004, appellant father filed a verified answer alleging, inter alia, that the mother had committed a fraud upon the Commissioner and had obtained public assistance benefits for herself and the children by concealing assets and income which would otherwise have disqualified her from receipt of public assistance. Appellant father attached the affidavit of net worth submitted by the mother in connection with the divorce proceeding, which showed, inter alia, that the mother had $2,000 in a bank account in England; that she had various items of art sculpture in storage, for which she owed unpaid storage charges of $11,000; that she paid $395 per month for rental of an art studio; that she received $300 per month from a friend, and that the friend had paid the mother’s legal fees in connection with the custody proceedings. By letter dated January 4, 2005, appellant’s attorney advised the Commissioner of his belief, based on the various statements in the mother’s affidavit of net worth, that the mother had engaged in and continued to engage in welfare fraud. The Commissioner referred the matter to its bureau of fraud investigation, and in turn to the New York County District Attorney’s Office. The District Attorney ultimately declined to prosecute for fear that the case could not be proven beyond a reasonable doubt.

A New York Child Custody Lawyer said that, a hearing was held before the Support Magistrate over the course of several dates. At the beginning of the hearing, appellant father’s attorney stated that it was his intention to cross-examine the mother regarding the defenses interposed in his answer. He stated that it was his understanding that the mother was to be produced by the Commissioner, and, accordingly, that he had not subpoenaed the mother himself. Appellant’s counsel complained that the mother’s absence was “irreparably harmful to the presentation of his case,” and asked that the case be dismissed. Counsel for DSS argued that whether the children were lawfully on public assistance was “not an issue that could be dealt with by the Family Court.” The Support Magistrate found that under the circumstances of the case, DSS was not required to produce the mother.

On or about March 1, 2006, appellant father subpoenaed the public assistance application of the mother for in camera inspection. The Commissioner’s oral application to quash the subpoena was granted over appellant’s objection. The Support Magistrate ruled that she did not have jurisdiction to determine the mother’s eligibility for welfare and what the mother may or may not have divulged to the Commissioner regarding her sources of income. At the next hearing date, May 15, 2006, appellant’s counsel argued that the Commissioner should have removed the proceeding to the Supreme Court, and that by failing to do so his client had been deprived due process of law. Appellant’s counsel argued that the issue of welfare fraud was in any event properly before the Support Magistrate since the Commissioner was required to prove, as part of his prima facie case, that the mother was lawfully on welfare. Appellant argued that if the mother, as the recipient of welfare, had no right to child support then the Commissioner, as her assignee, could have no superior right. Appellant’s counsel asked that the matter be dismissed, or, in the alternative, removed to the Supreme Court.

A New York Child Custody Lawyer said that, appellant father asserted that the mother had committed and continues to commit welfare fraud. The Commissioner, acting on information provided by appellant, referred the matter to its fraud investigation unit and ultimately to the District Attorney’s Office, which declined to prosecute.

A New York Family Lawyer said that, appellant’s principal claim on appeal is that he was deprived of due process by the Family Court, which denied him the opportunity to contest the issue of whether the mother was lawfully on welfare. The Family Court, inter alia, precluded appellant father’s attorney from cross-examining the mother regarding her entitlement to welfare, granted the Commissioner’s oral application to quash a subpoena seeking production of records relating to the mother’s welfare application for in camera inspection, and found that the Commissioner had established a prima facie case merely by submission of documents showing that the mother had an active welfare case. Although the Family Court found that the father’s only recourse was to challenge the mother’s entitlement to welfare in an article 78 proceeding, on appeal petitioner frankly admits that appellant father had no standing to bring such a proceeding.

The issues in this case are whether the court erred in directing the father to pay child support and whether the father and the mother were denied due process by the Family Court.

The father’s various arguments based on the mother’s alleged fraudulent receipt of public assistance benefits lack merit. The doctrine of judicial estoppel does not apply to bar the proceeding because, although the Commissioner, after commencing this proceeding, did inconsistently refer the mother’s case to the District Attorney for a possible welfare fraud prosecution, the District Attorney’s decision not to prosecute was not a prior judgment, or indeed any kind of decision, in the Commissioner’s favor vindicating a prior position that the mother had committed welfare fraud.

Nor should the case have been removed from Family Court to Supreme Court so as to allow the father to raise the issue of the mother’s alleged fraud. The proceeding was properly brought in Family Court pursuant to Family Court Act § 571, and, as Family Court pointed out, the father’s remedies for the mother’s alleged ineligibility for public assistance are administrative, not judicial.

The father’s objection to the Support Magistrate’s quashing of his so-ordered subpoena for the Commissioner’s public assistance records was properly denied because the father failed to demonstrate his entitlement to the confidential records sought therein under a specific regulatory exception. The failure to give the father the required eight days’ notice of the motion to quash was harmless, and, as Family Court also noted, the record indicates that the father neither objected to the Commissioner’s affirmation in support of the motion nor requested an adjournment to respond to the motion.

Finally, the Commissioner’s alleged failure to contact the Department’s Inspector General’s Office about the mother’s alleged fraud cannot be deemed frivolous within the meaning of 22 NYCRR § 130-1.1(c) since the Commissioner referred the alleged fraud to the District Attorney’s Office and the District Attorney decided not to pursue the matter. The mother’s sworn testimony confirming the statements of the Commissioner’s attorney was sufficient to meet the Commissioner’s burden of proving that the mother is a recipient of public assistance.

The Support Magistrate properly concluded that the father was not entitled to an automatic deviation from the CSSA guidelines simply because of the parties’ equal sharing of custody. Indeed, shared custody arrangements do not alter the scope and methodology of the CSSA. The father failed to preserve his argument that the Support Magistrate, in balancing his resources, improperly used a self-support reserve for an individual, rather than a support reserve for a family of two, and we decline to review it.

The court said that under the circumstances of this case, appellant father was entitled, at a minimum, to cross-examine the mother and to present evidence in support of his affirmative defenses. The failure to do so was a violation of procedural due process, particularly since appellant father has no standing to challenge the mother’s eligibility for welfare in an article 78 proceeding. DSS, as assignee of the mother, stands in her shoes and has failed to show a change in circumstance warranting modification of the parties’ child support obligations.

Accordingly, the court held that the order of the, Family Court, New York County, entered on or about March 30, 2007, which, in a child support proceeding brought by the Commissioner of Social Services as assignee of the child’s mother, denied in part respondent father’s objections to a December 2006 support order directing him to pay child support and order, same court and Judge, entered on or about August 19, 2008, which denied all of the father’s objections to (a) a November 2007 order denying his motion for summary judgment to dismiss this proceeding on the ground of judicial estoppel, and (b) a January 2008 child support order directing him to pay child support without a deviation from the Child Support Standards Act (CSSA) guidelines, affirmed, without costs.

Every person is entitled to due process of law. If you have been deprived of your right under the proceedings before a Family Court, seek the help of a New York Child Custody Attorney and/or New York Child Support Attorney at Stephen Bilkis and Associates. Call us.

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