IN RE: Ruthanne MODICA

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

IN RE: Ruthanne MODICA, Respondent, v. Robert THOMPSON, Appellant.

Decided: December 30, 2002

DAVID S. RITTER, J.P., ANITA R. FLORIO, SONDRA MILLER and HOWARD MILLER, JJ. Harvey C. Kallus, New Windsor, N.Y., for appellant.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Rockland County (Garvey, J.), entered April 17, 2002, which granted the petition to substitute Ruthanne Modica as the payee of his child support obligation and denied his petition for the return of certain collected but undisbursed child support money.

ORDERED that the order is affirmed, without costs or disbursements.

In 1993 the appellant and Lori Modica (hereinafter the mother) were divorced.   Custody of their child was given to the mother, and the appellant was ordered to pay child support.   After the divorce, the mother and the child resided with her parents, the respondent, Ruthanne Modica, and Joseph Modica (hereinafter the grandparents).   In December 2000 the mother died after an illness.   The child continued to reside with the grandparents and, following a lengthy trial, they were awarded custody of the child (see Matter of Modica v. Thompson, 299 A.D.2d 486, 749 N.Y.S.2d 889).   In the interim, the Child Support Unit (hereinafter the CSU) continued to collect child support from the appellant by garnishing his wages.   However, the CSU did not disburse the bulk of the support payments collected.   As a result, $3,465 accrued in the CSU account.   On or about October 19, 2001, Ruthanne Modica filed a petition seeking to modify the support orders so as to reflect the change in custody.   She also requested that the court order the CSU to release to her the child support payments that accrued after the mother's death.   On or about December 31, 2001, the appellant filed a petition requesting that the court order the CSU to return the collected but undisbursed child support payments to him.   In the order appealed from, the Family Court granted Ruthanne Modica's petition and denied the appellant's petition.   We affirm.

 A parent's fundamental obligation to provide support for his or her child is well established by both statute and case law (see Family Ct Act § 413;  Hirsch v. Hirsch, 37 N.Y.2d 312, 372 N.Y.S.2d 71, 333 N.E.2d 371;  Matter of Roe v. Doe, 29 N.Y.2d 188, 324 N.Y.S.2d 71, 272 N.E.2d 567;  Laumeier v. Laumeier, 237 N.Y. 357, 143 N.E. 219;  Matter of Commissioner of Social Servs. v. Grifter, 150 Misc.2d 209, 210–211, 575 N.Y.S.2d 259).   Even a child placed in residential or foster care is entitled to support from the parents (see Matter of Dutchess County Dept. of Social Servs. v. Day, 96 N.Y.2d 149, 726 N.Y.S.2d 54, 749 N.E.2d 733;  Matter of Harvey–Cook v. Neill, 118 A.D.2d 109, 504 N.Y.S.2d 434;  Matter of Department of Social Services v. Joseph R., 82 A.D.2d 885, 440 N.Y.S.2d 305;  Commissioner of Social Servs. v. Grifter, supra Family Ct Act §§ 415, 545;  Social Services Law § 398).  “A custodial parent, a foster parent or the Commissioner of Social Services are no more than conduits of that support from the noncustodial parent to the child” (Commissioner of Social Servs. v. Grifter, supra at 212, 575 N.Y.S.2d 259).   This obligation continues after a divorce.  “The husband did not divorce his child, or dissolve his liabilities to it” (Laumeier v. Laumeier, supra at 364, 143 N.E. 219).   Further, the support obligation being to the child, not to the payee spouse, the death of the payee spouse does not terminate the obligation (see Belaustegui v. Belaustegui, 85 Misc.2d 1015, 380 N.Y.S.2d 950;  Matter of Slochowsky v. Lavine, 73 Misc.2d 563, 342 N.Y.S.2d 525;  Besharov, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct Act § 413, at 84;  cf.  Matter of Kummer, 93 A.D.2d 135, 461 N.Y.S.2d 845;  Gordon v. Gordon, 110 A.D.2d 623, 487 N.Y.S.2d 574).

 Here, the death of the mother did not terminate the appellant's continuing obligation to support the child.   It would be contrary to the statutory scheme of the Family Court Act and the public policies it embodies to order the child support payments accrued after the mother's death to be returned to the appellant when he neither had custody of the child nor sought to otherwise modify his child support obligation during the relevant period (see Commissioner of Social Servs. v. Grifter, supra).   Rather, consonant with the statutory scheme and the public policies it embodies, the accrued child support payments were properly awarded to Ruthanne Modica, who had custody of the child and was charged with her care during the relevant period (see Corso v. Corso, 48 A.D.2d 652, 367 N.Y.S.2d 557;  Commissioner of Social Servs. v. Grifter, supra).   The Family Court providently exercised its continuing jurisdiction to effect such a result (see Family Ct Act § 451).

The appellant's remaining contention is not properly before this court and, in any event, is without merit (see Matter of Knotts v. Vezina, 247 A.D.2d 539, 668 N.Y.S.2d 477).

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