McADAMS v. PINCKNEY (2005)

 Petitioner appeals from an order of Family Court modifying an order of the Hearing Examiner that was entered upon the consent of the parties.   Respondent thereafter filed objections with the court seeking to vacate the order of the Hearing Examiner.   Even assuming, arguendo, that the court was empowered to review an order of the Hearing Examiner entered by consent (see Matter of Culton v. Culton, 2 A.D.3d 1446, 769 N.Y.S.2d 431;  Matter of Steuben County Support Collection Unit v. Bartholomew, 2 A.D.3d 1434, 1435, 768 N.Y.S.2d 908, lv. denied 2 N.Y.3d 703, 778 N.Y.S.2d 460, 810 N.E.2d 913;  Matter of Woods v. Velez-Shanahan, 308 A.D.2d 593, 594, 765 N.Y.S.2d 517), we conclude that the court erred in making new findings of fact and reducing respondent's child support obligation from $77.50 per week to $25.00 per month, a remedy that was not sought in the objections filed pursuant to Family Court Act § 439.   No hearing having been held, there was no record upon which the court could make its “own findings of fact” (§ 439[e] ).   In addition, it was improper to apply the “unjust or inappropriate” provisions of section 413(1)(f) without notice or a hearing before the Hearing Examiner.   Instead, respondent's remedy is to move to vacate the consent order before the Hearing Examiner.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the objections are denied and the order entered January 31, 2003 is reinstated.

MEMORANDUM: