IN RE: a Proceeding for Support under Article IV of the Family Court Act

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Family Court, Kings County, New York.

IN RE: a Proceeding for Support under Article IV of the Family Court Act, ADRIANNE F., Petitioner, v. ANTHONY S., Respondent.

Decided: May 26, 2005

Anthony S., respondent pro se. Michael A. Cardozo, Corporation Counsel, Brooklyn (Scott Caplan of counsel), for petitioner.

As a consequence of being notified on January 14, 2005 by the Support Collection Unit [hereinafter “SCU”] that his driving privileges will be suspended pursuant to Social Services Law § 111-b(12)(b)(1) [hereinafter cited as “SSL”],1 the Respondent filed a challenge with SCU.2 SCU denied Respondent's challenge on April 5, 2005.   The Respondent filed an Objection 3 with this Court on April 21, 2005 pursuant to FCA § 454(5) claiming that he is a full-time student, that he has no income since being fired from his former job on November 17, 2004, that the arrears owed as of that date are due to one unreimbursed medical bill not non-payment of weekly child support, and that suspending his driver's license would prevent him from completing his Emergency Medical Technician course and becoming a member of the “work force.”   The Respondent seeks review of SCU's determination that his driving privileges should be suspended.

Subsequently, Assistant Corporation Counsel Scott Caplan filed a Rebuttal 4 on April 28, 2005 on behalf of the Petitioner in support of the determination by SCU. In his Rebuttal, the Petitioner stated SCU properly denied the Respondent's challenge because Respondent had accumulated child support arrears of four months or more and had not overcome his driver's license suspension in accordance with the methods outlined in SSL § 111-b(12), nor did he provide SCU with the required statement of net worth.

Upon receiving a notice to suspend driving privileges, the statute provides support obligors with three remedies.   The first is to seek to avoid the suspension pursuant to SSL § 111-b(12)(e)(1)-(4).   The Respondent attempted to use the provisions of SSL § 111-b(12)(e)(4)(ii) by claiming that paying the amount due would place him below the self-support reserve.   He was unable to substantiate this claim as he did not return the Affidavit of Net Worth and his 2004 tax return reflected eleven months of income which did not place him below the self-support reserve.   Although SCU did send a request for further financial information in the form of an Affidavit of Net Worth, the Respondent did not return the affidavit by the March 23, 2005 deadline or submit any other financial documentation in furtherance of his claim.   Because the Respondent was fired near the end of the year, and SCU considered his earnings profile for the entire 2004 year, it would have been impossible for him to demonstrate that his income fell below the self-support level.   Consequently, SCU denied the Respondent's effort to avoid the suspension.

The second remedy available, pursuant to SSL § 111-b(12)(f), is to assert that SCU did not give notice that the continued failure to pay child support arrears would result in a suspension of a driver's license or, in the alternative, that the content of the notice was inadequate.   The procedure for doing this is to request a review under SSL § 111-b(12)(d).  While the Respondent requested a review, he did not claim he was not notified or that the notice he received was insufficient.

The third remedy, available under SSL § 111-b(12)(d)(1), is to submit a challenge in writing to the correctness of the determination by SCU to suspend driving privileges.   The statute allows a support obligor to “submit documentation demonstrating mistaken identity, error in calculation of arrears, financial exemption, absence of an underlying court order or other reason that he is not subject to a determination to suspend his driver's license.” In the Respondent's challenge he claimed that he was a full-time student and that his post-termination income falls below the self-support reserve.   SCU denied the Respondent's challenge for the reasons stated above as he failed to establish any legally recognizable reason to overcome the determination by SCU that his license should be suspended.

FCA § 454(5) empowers a family court judge to review a support collection unit's denial of a challenge made by a support obligor pursuant to SSL § 111-b(12)(d).  FCA § 454(5) provides that “the court's review shall be based upon the record and submissions of the support obligor and the support collection unit upon which the support collection unit's denial was made.”   The scope of the Family Court's “review” is confined to an inquiry whether the determination of SCU contained “no clearly erroneous determination of fact or error of law.”   Upon a review of the “challenge” to SCU's determination, the Objection filed by the Respondent, the Rebuttal filed by the Petitioner and the court record in this case, the Respondent's Objection is granted for the reasons outlined below.

Of relevance to the Court's decision are the following facts.   The Respondent's child support was being paid through an income execution that was issued on October 18, 2001 5 .  The Respondent was fired from his job on November 17, 2004.   On November 18, 2004, the Respondent was current in his weekly child support payments and did not owe arrears equaling four months of child support 6 as his last child support income deduction payment occurred on November 24, 2004 according to the determination made by SCU. Within 24 hours of being terminated from his job, the Respondent came to court and filed a Petition for a Downward Modification of Child Support in order to seek relief before any weekly child support arrears could begin to accrue.   Despite his efforts to avoid becoming delinquent, arrears continued to accrue while the Respondent waited six months for his hearing on the downward modification.7  The arrears upon which SCU ultimately based the determination to suspend the Respondent's driving privileges were the result of the accumulation of the unreimbursed dental expense entered on October 21, 2004 and the accumulated weekly child support incurred from November 24, 2004 to April 5, 2005.8

 The Objection is granted in the first instance on procedural grounds.   Pursuant to SSL § 111-b(12)(b)(3) “no notice shall be issued by the department pursuant to subparagraph one of this paragraph to a support obligor from whom support payments are being received by the support collection unit as a result of an income execution or income deduction order.”   In this case the Respondent's payments were being made as a result of income execution since the October 18, 2001 Child Support Order and remained so until he was fired on November 17, 2004.   There is no indication in the record that SCU made efforts to “determine why payments were not being received” (Karen B. v. Willie B., 5 Misc.3d 327, 783 N.Y.S.2d 793 [N.Y. Fam. Ct., 2004] ).   Because Respondent's child support payments were being paid through an income execution, which SCU knew about, SCU was barred by statute from issuing any notice to suspend Respondent's driver's license.   Were this pro se litigant conversant with the statute, the Respondent could have made this argument in his challenge before SCU under the provision of SSL § 111-b(12)(d)(1) for any “other reason” for why he is not subject to the suspension provisions.   This Court finds that pursuant to FCA § 454(5), there was an “ erroneous determination of fact or error of law” committed by SCU when they notified the Respondent of a license suspension in contravention of the statute.

 The Family Court is “a court of limited jurisdiction and may exercise only those powers specifically granted to it by the State Constitution or by statute” (Matter of Custody and Guardianship of Anthony S., Jr., 178 Misc.2d 1, 11, 675 N.Y.S.2d 759 [Fam.Ct. Kings Co.1998] ).   The Family Court does not possess equity jurisdiction (Matter of Marvin A., 161 Misc.2d 745, 747, 615 N.Y.S.2d 249 [Fam.Ct. Queens Co.1994] ).   Nonetheless, the courts have “unanimously recognized that in appropriate cases they have inherent power to make orders that will correct evils, preserve rights and prevent injury to innocent parties” (Hendel v. Hendel, 59 Misc.2d 770, 775, 300 N.Y.S.2d 350 [Sup.Ct. N.Y. Co.1969] ).   The Objection is granted on these grounds in the interests of justice because neither the SCU petition clerk nor the Support Magistrate promptly scheduled and completed the hearing to determine whether the Respondent was entitled to a reduction in support payments.9

After the Respondent filed his downward modification, the initial return date given by the petition clerk for the Support Collection Unit was January 20, 2005.   Because of this delay, two months of support arrears were able to accrue.   On January 14, 2005, SCU issued its notice to suspend the Respondent's license, six days prior to his return date.   The Support Magistrate compounded the problem by adjourning the hearing an additional five months.   By May 17, 2005, the next date scheduled for the Respondent's downward modification, SCU had issued its denial of the Respondent's driver's license suspension (April 5, 2005) and arrears had reached $5708.94.   While arrears can be adjusted retroactively to the date of the filing of a modification petition, there is no provision in SSL § 111-b(12) prohibiting SCU from issuing a suspension notification while a petition for a downward modification is pending.   In light of this, the SCU petition clerk and the Support Magistrates must expedite the process for calendaring and reviewing applications for downward modifications to avoid precipitating a license suspension for non-payment of support.

For all of the foregoing reasons, the Respondent's Objection is granted and the determination of SCU is vacated.   SCU is directed not to notify the Department of Motor Vehicles to suspend the Respondent's driving privileges.

FOOTNOTES

1.   Under the statute, when a support obligor who is under a court order to pay child support “has accumulated support arrears equivalent to or greater than the amount of current support due for a period of four months, the department shall notify the support obligor in writing that his or her continued failure to pay the support arrears shall result in notification to the department of motor vehicles to suspend the support obligor's driving privileges unless the support obligor complies with the requirements ․ of this subdivision.”   On the date of the notice SCU claimed Respondent owed arrears of $3,860.94 which was the greater than 4 months of child support or $2,889.60.   A portion of the arrears owed was due to one unreimbursed medical amount of $1,926.76 charged to him on October 21, 2004 the remaining amount was due to unpaid weekly child support that began to accrue when his lost his job on November 17, 2004.

2.   The challenge was filed pursuant to SSL § 111-b(12)(d)(1):  “A support obligor may challenge in writing the correctness of the determination of the support collection unit that the obligor's driving privileges should be suspended, and in support of the challenge may submit documentation demonstrating mistaken identity, error in calculation of arrears, financial exemption from license suspension ․ the absence of an underlying court order to support such determination, or other reason that the person is not subject to such determination.”

3.   The Objection was filed pursuant to FCA § 454(5) and SSL § 111-b(12)(d)(2) which provides that “A support obligor may within thirty-five days of the date of notice denying his or her challenge by the support collection unit request that the family court review the support collection unit's determination ․ If the support obligor requests the family court to review the determination of the support collection unit, the support collection unit shall not notify the department of motor vehicles to suspend the support obligor's driving privileges until fifteen days after mailing a copy of the judgment by the family court to the support obligor denying the objections.”   In this case, the Respondent's Objection was timely served on SCU as evidenced by the stamp on the front page indicating it was received by the SCU office within thirty-five days of the denial of his challenge.

4.   Attached to the Rebuttal was an affidavit of mail service indicating that a copy of the Rebuttal was sent to the Respondent at his residence.

5.   In connection with the Petitioner's prior upward modification, Respondent's child support obligation was set at $168.00 weekly and was made payable through an income execution that was implemented by his employer, Epic Security Corp.

6.   At this point Respondent owed one unreimbursed medical payment of $1,926.76 for the child's dental expenses.

7.   The Respondent filed on November 18, 2004 and the matter was adjourned to January 20, 2005 for return of process.   On that date Respondent could not attend court due to a funeral and the matter was adjourned to May 17, 2005.

8.   Calculated at a rate of $168.00 a week, the child support arrears that accrued from November 24, 2004 to January 14, 2005 totaled approximately $1934.18 which, when coupled with the $1926.76 unreimbursed medical expense, brought the total child support due to $3860.94.   This was an amount “equivalent to or greater than the amount of support due pursuant to such order for a period of four months.”

9.   Lengthy adjournments and a failure to expedite hearings on downward modification petitions appears to be a pattern with this Support Magistrate.   The Respondent's December 19, 2001 petition for a downward modification was adjourned to February 14, 2002 and then to April 11, 2002 and then to June 18, 2002.   Six months passed before the Support Magistrate made a determination of that application.   If not for the income deduction in effect at that time, the Respondent could have fallen into arrears then as well.

PAULA J. HEPNER, J.