IN RE: a Support Proceeding under Article Four of the Family Court Act: Michelle M. (2025)

On March 9, 2021, Michelle M. ("Petitioner") filed a petition seeking enforcement of the parties' October 10, 2014, a judgment of divorce (hereinafter "Divorce Judgment"), ordering Fabrizio V. ("Respondent") to pay $765 per month for and towards the basic support of the two subject children "A" (DOB: XX/XX/2008) and "M" (DOB XX/XX/2009) and 27% of the children's add-on expenses, including summer camp, educational expenses, medical insurance and expenses and extracurricular expenses. On April 5, 2024, the Petitioner filed an amended petition seeking the same relief and adding additional expenses.

A fact finding was held on April 9, April 25, May 7, June 17, and August 21 of 2024 before Support Magistrate Sandra Stines (hereinafter "Support Magistrate"), wherein the Petitioner was represented by counsel and the Respondent appeared pro se. At the conclusion of the hearing, on January 2, 2025, Support Magistrate Stines granted, in part, the Petitioner's petition finding that Respondent willfully failed to pay basic child support in the amount of $12,805 plus interest  ¹ . The Support Magistrate denied, without prejudice, the Petitioner's petition for arrears associated with add-on expenses, finding that the court lacked jurisdiction, in that the parties' Judgement of Divorce included contractual provisions to interpret and that "the interpretation of the terms of joint custody are so intertwined with enforcing the terms of support for add-ons in the Judgment that this court lacks jurisdiction to enforce those provisions" (emphasis added).

Now, before the Court is an objection filed by the Petitioner, through counsel, arguing, inter alia, that the Support Magistrate erred in law by finding that the court lacked jurisdiction to determine the amount of arrears owed to the Petitioner for the children's summer camp, educational, medical and extracurricular expenses. The Petitioner timely filed her objection, along with a proper affidavit of service. The Respondent failed to submit a rebuttal.

Family Court Act § 439 (e) provides that the Support Magistrate's determination "shall include findings of fact and ... a final order." The parties are permitted by statute to submit "specific written objection," to the order for "review" by a Family Court judge. The review of the Support Magistrate's order is essentially equivalent to an appellate review of such an order (see Matter of Cherrez v Lazo, 102 AD3d 781, 782 [2d Dept 2013]). The scope of that review, however, is narrow, and confined to whether the Support Magistrate, as the trier of fact, has made the necessary findings of fact and whether, upon review of the record, the findings of fact present a reasonable basis for that order. The Court, upon review of the objection and underlying file, finds that the Petitioner's objection has merit.

A support magistrate under Family Court Act § 439(a) is empowered to hear, determine and grant relief "within the powers of the court in any proceeding under this article, articles five, five-A, five-B and five-C and sections two hundred thirty-four and two hundred thirty-five of this act, and objections raised pursuant to section five thousand two hundred forty-one of the civil practice law and rules." The statute also specifies powers not in the purview of the support magistrate including "issues of contested parentage involving claims of equitable estoppel, custody, visitation including visitation as a defense, determinations of parentage . . . and orders of protection or exclusive possession of the home," all of which shall be referred to a judge as directed by § 439(b) and § 439(c). "Upon determination of such issue by a judge, the judge may make a final determination . . . or immediately refer the proceeding to a support magistrate for further proceedings . . . " Support magistrates regularly refer defenses such as interference of a non custodial parent's visitation rights  ² or the emancipation of an economically independent child  ³ to family court judges.

Here, the Divorce Judgment states that "all issues related to Child Support shall be resolved in accordance with Article VI" of the parties' Stipulation of Settlement and Agreement ("Stipulation") dated September 4, 2024. The Divorce Judgment also states that "issues related to custody, access, parenting time, and decision-making . . . shall be resolved in accordance with Article VIII" of the Stipulation. It further states that, pursuant to Article VIII of the Stipulation, a third document related to custody and access is incorporated into the Divorce Judgement, namely the Binding Term Sheet dated June 18, 2014. All three documents were properly entered in evidence by the Support Magistrate.

The parties 2014 Divorce Judgment, incorporating the Binding Term Sheet and the Stipulation, laid out the rights and responsibilities of each parent. The Stipulation outlines the cost sharing required for add-on expenses and states "if the mother advances the money for any add-on expenses, the father shall reimburse her within ten dates after she presents him with a receipt of proof of payment." The separate Binding Term Sheet Binding grants Petitioner final decision making if the parties cannot agree after "meaningful consultation." The Binding Term Sheet does not define what constitutes "meaningful consultation" and, importantly, it does not condition Respondent's obligation to pay his share of add-on expenses on Petitioner's obligation to consult with him. Courts have found generally that an obligation to pay for specific expenses controls over more general obligations, such as a right of consultation.⁴ These two separate and distinct obligations — a right to pay support and a right to have meaningful consultation — each provide the parties with specific legal remedies. And the Respondent failed to exercise those remedies.

The trial record appears to indicate that Respondent did not make these payments because of Petitioner's alleged lack of meaningful consultation, but rather because at "[no]t one time was [his] suggestion ever agreed to." It also appears that some of the unpaid add-ons do not even require any custodial analysis, including the children's continued enrollment until 2021 at the school they attended during the divorce and their later enrollment in boarding school (specifically allowed by subsequent court orders).

Although Respondent raised Petitioner's alleged lack of meaningful consultation "as a defense to payments of the add-ons," the Court finds that this does not fall within the purview of Family Court Act § 439(c), which would require a referral to a judge. However, even if the Support Magistrate made such a finding, no such referral was made.

Accordingly, the objection is hereby GRANTED.

It is hereby,

ORDERED, the order dismissing a portion of the Petitioner's petition is vacated, and that portion of the petition is hereby re-instated

ORDERED, the matter is remanded to Support Magistrate Stines for a full hearing and determination regarding add-on expenses.

ORDERED, that any relief not expressly granted is otherwise denied.

Notify all parties. The foregoing is the decision and order of the court.

Dated: March 21, 2025

New York, New York

ENTER:

Hon. Lydia S. Antoncic, J.F.C.

FOOTNOTES

1.   The Court note that the Respondent did not dispute his failure to pay basic child support.

2.   Suspension of child support payments is warranted when the custodial parent's actions rise to the level of "deliberate frustration or active interference" with the other parent's visitation rights. Matter of Morgan v. Morgan, 213 AD3d at 670, 182 N.Y.S.3d 262 (2023) quoting Matter of Thompson v. Thompson, 78 AD3d 845, 846, 910 N.Y.S.2d 536 (2nd Dep't 2010).

3.    Thomas B. v. Lydia D., 69 AD3d 24, 886 N.Y.S.2d 22 (1st Dep't 2009).

4.    Wheeler v. Wheeler, 162 AD3d 1517, 78 N.Y.S.3d 547 (4th Dep't 2018) (father's commitment to pay for daughter's college was not conditioned on being consulted on her choice, although separation agreement required parties to consult each other); Hejna v. Reilly, 88 AD3d 1119, 931 N.Y.S.2d 192 (3rd Dep't 2011) (father's agreement to pay for 4 years of college controlled over general provision terminating support obligations at age 22).

Lydia S. Antoncic, J.