MATTER OF CARAVELLA v. Toale

DEBRA J. KIEDAISCH, J. The mother has filed objections to the decision and order of the Support Magistrate, dated April 8, 2004, which granted the father's petition for downward modification of his child support obligation for the parties' two children. The Support Magistrate reduced the father's support obligation to $200 biweekly from $340.38 biweekly, where it had been fixed in the parties' divorce judgment. In his petition, filed June 5, 2003, the father alleges he lost his employment in which he had been earning $41,421 per year stating he "was denied tenure by his employer and was forced to seek other employment." The father further alleges he has been unable to locate a position at the same salary he was previously earning and is currently working as a waiter at a restaurant earning approximately $250 to $300 gross pay each week. The mother objects to the decision and order on the ground it was made without the conducting of a plenary evidentiary hearing upon the merits of the father's petition, and that she was denied standing to oppose the petition. This court reviewed a tape of the proceedings conducted before the Support Magistrate on March 15, 2004. The tape confirms that, at first, the Support Magistrate had the parties mark exhibits and admitted them into evidence in preparation for the hearing. When the first witness, a support collection unit caseworker, testified that the children were now receiving public assistance, the Support Magistrate suspended the hearing and directed that a representative of the Orange County Department of Social Services (hereafter, DSS) become "involved" in the proceeding. When the hearing recommenced 15 minutes later a representative of DSS can be heard on the record, in response to questioning by the Support Magistrate, accepting an "offer" by the father of $100 per week child support. The DSS representative then stated the offer was acceptable to DSS for the reason that the amount of $100 per week is $2 in excess of the $98 per week (public assistance) grant being paid on behalf of the children. The procedure by which there was an abrupt switch from a plenary evidentiary contested hearing to a settlement being placed upon the record by a DSS representative conducting a plenary evidentiary hearing on the merits of the father's petition. Accordingly, the order of the Support Magistrate, dated April 8, 2004, is vacated and the matter remanded to the Support Magistrate for a plenary hearing on the father's petition seeking downward modification of his child support obligation with the mother granted full status and standing to participate as a party respondent. [1] While it is possible there may have been discussions off the record as to the procedure being followed, greater care must be taken to place and clearly state upon the record such material rulings as altered the course of this hearing so that the court may intelligently review any objections, and the parties are granted an opportunity to clearly state on the record their assent or opposition which could affect their right to appeal or file objections to the resulting order. [2] The office of the Orange County Attorney will also provide representation to private parties seeking to enforce support rates at reduced attorney's fees rates to represent individuals seeking child support. In this case the mother was already represented by counsel who identifies herself as a former Legal Services attorney who represented the mother in the past and is doing so, pro bono, in this proceeding. [3] Possibly, although this court does not now decide such issue, if this case involved a reduction of the father's child support obligation where the public assistance grant already exceeded the father's prior court ordered support obligation there would be no prejudice in permitting the further reduction without a full plenary hearing since whether the original order remained, or was further reduced, there would be no excess support monies due from the father for the children after DSS was reimbursed for its public assistance. Under the law, once public assistance ended, the mother would have the right to seek a de novo determination of the father's child support obligation (see, Matter of Lafayette v McPherson, 300 AD2d 488 [2002]; Family Ct Act § 571 [3] [b]).