CHAUTAUQUA COUNTY COMMISSIONER OF SOCIAL SERVICES JESSICA v. DANA (1997)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of CHAUTAUQUA COUNTY COMMISSIONER OF SOCIAL SERVICES, on Behalf of JESSICA R., Appellant, v. DANA R., Respondent.

Decided: November 19, 1997

Before GREEN, J.P., and PINE, WISNER, BALIO and FALLON, JJ.

Jerry Hyde, Mayville, for appellant. Dana Ramsey, Jamestown, respondent pro se.

Family Court erred in denying petitioner's objection to the Hearing Examiner's order of support. In computing respondent's support obligation for Jessica R., the subject of this support proceeding, the Hearing Examiner improperly adjusted respondent's income by deducting the entire amount of an income execution issued by the Child Support Enforcement Unit in another support matter (see, Family Ct.Act § 413[1][b][5][vii][D]; CPLR 5241). The portion of the execution that is applied to arrears in the other matter is not “actually paid pursuant to court order or written agreement” (Family Ct.Act § 413[1][b][5] [vii][D] ), and thus is not properly deductible. Respondent's other support obligation may be taken into account under section 413(1)(f) of the Family Court Act upon a claim that the basic child support obligation is unjust or inappropriate (see, Matter of Steuben County Dept. of Social Servs. [Padgett] v. James, 171 A.D.2d 1023, 569 N.Y.S.2d 32). We modify the order, therefore, by granting petitioner's objection and remitting the matter to Chautauqua County Family Court for a recomputation of respondent's support obligation.

Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Chautauqua County Family Court for further proceedings.

MEMORANDUM:

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