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U.S. v. KERLEY

July 8, 2004.

UNITED STATES OF AMERICA,
v.
CLIFFORD KERLEY, Defendant.



The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion & Order

The Deadbeat Parents Punishment Act ("DPPA") provides that any individual who "willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000" may be subject to a fine and/or up to two years' imprisonment. 18 U.S.C. § 228. Defendant Kerley has been charged by information with the willful failure to pay a past due child support obligation, namely a child support order entered by a New York Family Court hearing examiner on July 6, 1990. He now moves to dismiss the information on the grounds that the support order was entered by a court that did not have subject matter jurisdiction.

Mr. Kerley received a summons in Spring 1990 to appear in New York Family Court to respond to allegations of paternity made by the New York City Commissioner of Social Services on behalf of a woman who gave birth to twin girls in 1989 and claimed that Mr. Kerley was the children's father. After making an initial appearance before a hearing examiner, where he contested paternity and requested that blood and genetic marker tests be performed, Mr. Kerley failed to appear for his scheduled blood test and failed to appear for his next scheduled court date. When Mr. Kerley failed to appear for the scheduled court date, Family Court Judge Bruce Kaplan entered an order of filiation. The support issue was then, according to the court file, referred to Hearing Examiner Richard Spegele, who made findings of fact with respect to child support and issued a support order. (Govt. 5/12/04 Ltr. Br. at 1-2, Ex. A).

  I. The Hearing Examiner Had No Jurisdiction to Enter the Support Order

  New York Family Court is a court of limited jurisdiction.*fn1 Kleila v. Kleila, 50 N.Y.2d 277, 282 (1980). Family Court judges may delegate certain tasks to hearing examiners. "Family Court Act Section 439 and the rules promulgated thereunder [22 NYCRR Sec. 205.32-205.37] enumerate the specific powers delegated to the Hearing Examiner. The Hearing Examiners possess no power beyond what is specifically enumerated in the statute."*fn2 Dep't of Soc. Servs. ex rel. Gary Z. v. Burton H., 151 Misc.2d 400, 401 (N.Y. Fam. Ct. Monroe Cty. 1991).

  As it existed in 1990, § 439 of the Family Court Act provided, in relevant part, that:
Except as hereinafter provided, hearing examiners shall be empowered to hear, determine and grant any relief within the powers of the court in any proceeding. . . . Hearing examiners shall not be empowered to hear, determine and grant any relief with respect to . . . issues of contested paternity . . ., which shall be referred to a judge as provided in subdivision (b) or (c) of this section.
The hearing examiner shall be empowered to hear and determine all matters related to [a proceeding to establish paternity] including the making of an order of filiation . . ., provided however, that where the respondent denies paternity, the respondent defaults in appearing before a hearing examiner after the court has obtained jurisdiction over the respondent or the acknowledgement of paternity is disputed, the hearing examiner shall not be empowered to determine the issue of paternity, but shall transfer the proceeding to a judge of the court for a determination upon the issue of paternity. Whenever an order of filiation is made by a hearing examiner, the hearing examiner also shall make a final or temporary order of support. When an order of filiation is made by the judge, the judge shall make a final or temporary order of support. If a temporary order is made the proceeding shall be returned to a hearing examiner for a final determination. . . .
Except in a proceeding to establish paternity in which the respondent has not acknowledged paternity, the hearing examiner . . . shall make a temporary order of support and refer the proceeding to a judge. Upon determination of such issue by a judge, the judge may make a final determination of the issue of support, or the proceeding shall be returned to a hearing examiner for a final determination upon the issue of support payments or other matters within the authority of the hearing examiner.
  By its terms, § 439 provides that a hearing examiner has no jurisdiction to enter an order of filiation in a proceeding where paternity is contested. The limits on the authority of a hearing examiner to enter an order of filiation act as a limitation on a hearing examiner's authority to enter orders of support, because § 439 requires that the court that enters an order of filiation also enter the order of support. See N.Y. Fam. Ct. Act § 439(b) ("Whenever an order of filiation is made by a hearing examiner, the hearing examiner also shall make a final or temporary order of support. When an order of filiation is made by the judge, the judge shall make a final or temporary order of support."); see also Dep't of Soc. Servs. ex rel. Katherine McL. v. Jay W., 482 N.Y.S.2d 810, 818 (2 Dep't 1984) ("the court in the paternity proceeding upon resolving the issue of paternity should have proceeded to determine as well the issue of support, within that same proceeding"). Put another way, in proceedings where a hearing examiner has no jurisdiction to enter an order of filiation, he also has no jurisdiction to enter an order of support.

  Here, the hearing examiner had no authority to determine the issue of paternity because Mr. Kerley had made an initial appearance before a hearing examiner and contested paternity; rather, the issue could be decided only by a judge. Because an order of paternity was entered against Mr. Kerley by a Family Court judge, that judge was required to enter the order of support.

  The Government makes several arguments, based upon various canons of statutory construction, why the hearing examiner had subject matter jurisdiction to enter the order of support. Each of the Government's arguments fails in light of the plain language of the statute. As the Supreme Court has explained:
[C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.
Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-254 (1992). Here, the plain language of § 439 unambiguously required that this matter be transferred to a Family Court judge for an order of filiation and that, after entering the order of filiation, the Family Court judge was required to enter a temporary or permanent order of support. The hearing examiner had no authority to enter a support order in the first instance.

  The Government argues that the paternity proceeding before the Family Court judge was governed by Article 5 of the Family Court Act, rather than Article 4,*fn3 and therefore § 439 (which appears in Article 4) is not relevant. As a general matter, Article 4 of the Family Court Act sets forth the procedures for support proceedings, and Article 5 sets forth the procedures for paternity proceedings. See N.Y. Fam. Ct. Act. §§ 411, 511. A description of the authority granted to hearing examiners — and the limitations on that authority — appears only in § 439; there is no parallel provision in Article 5. Yet nothing in § 439 suggests that the enumerated limitations on a hearing examiner's authority apply only to Article 4 proceedings. Indeed, the plain language of § 439 states otherwise: "Hearing examiners shall not be empowered to hear, determine, and grant any relief with respect to . . . issues of contested paternity . . ., which shall be referred to a judge as provided in subdivision (b) or (c) of this section." N.Y. Fam. Ct. Act § 439(a) (McKinney 1990). Since paternity proceedings are generally governed by Article 5 of the Act, this explicit limitation of the hearing examiner's authority to determine contested paternity indicates that § 439 limits the authority of hearing examiners in both Article 4 and Article 5 proceedings. This reading is confirmed by 1994 Recommendations of Family Court Advisory and Rules Committee, which stated "[s]ection 439 presently limits the authority of hearing examiners to hear and determine proceedings under articles 4, 5, and 5-A relating to support and paternity.")

  The Government further argues that, because § 439(a) empowers hearing examiners to determine and grant any relief within the powers of the court in any proceeding under Article 4 and Article 5 and because § 545 provides that "[i]n a proceeding in which the court has made an order of filiation, the court shall direct the parent or parents" to pay child support, the Family Court judge was permitted to refer the support determination to the hearing examiner. However, § 439(a) provides that:
Except as hereinafter provided, hearing examiners shall be empowered to hear, determine and grant any relief within the powers of the court in any proceeding under this article, articles five and five-A of this act, article three-A of the domestic relations law, and objections raised pursuant to section fifty-two hundred forty-one of the civil practice law and rules.
N.Y. Fam. Ct. Act § 439(a). The phrase "except as hereinafter provided" makes clear that there are certain enumerated restrictions on the ability of a hearing examiner to perform the duties of a family court judge. Those enumerated exceptions include a prohibition on a hearing examiner deciding issues of contested paternity and, consequently, a prohibition on entering a support order in a proceeding where a Family Court judge entered the order of filiation (unless the Family Court judge first enters a temporary support order). These specific limitations on the hearing examiner's authority may not be overcome by reference to the more general language that Article 5 matters may be referred to a hearing examiner. Cf. Cook v. New York State Div. of Parole, 321 F.3d 274, 279 n. 4 (2d Cir. 2003) ("It is a well-established canon of statutory construction that when two statutes cover the same situation, the more specific statute takes precedence over the more general one. The rationale for this canon is that a general provision should not be applied when doing so would undermine limitations created by a more specific provision.").

  This canon of statutory construction similarly defeats the Government's argument that § 435 permitted the hearing examiner to enter the order of support against Mr. Kerley. Section 435 provides that "[t]he hearing examiner shall enter an order of support on default if the respondent fails to answer or appear after having been properly served." However, § 439(b) specifically states that "where the respondent denies paternity, the respondent defaults in appearing before a hearing examiner after the court has obtained jurisdiction over the respondent or the acknowledgment of paternity is disputed, the hearing examiner shall not be empowered to determine the issue of paternity." Here, Mr. Kerley did not entirely fail to answer or appear, rather he made an initial appearance before the hearing examiner, contested paternity, and only later failed to appear. Since Mr. Kerley appeared and contested paternity, this is not a case of default. Myndi O. v. Ronald K., 690 N.Y.S.2d 407, 410 (N.Y. Fam. Ct. Monroe Cty. 1999) ("This is not a true default case, however, since Mr. K. appeared in Family Court and entered a denial to the paternity petition."). Thus § 439 — not § 435 — must apply.

  Finally, the Government argues that the "hearing examiner's jurisdiction to enter a support order was further conferred by the statute [Family Court Act § 439-a] setting forth the requirements for `expedited process.'" (Govt. 5/12/04 Ltr. Br. at 6). Section 439-a provided that "[t]he chief administrator shall assign a sufficient number of hearing examiners to ensure that such expedited process shall conform to the requirements of such case processing as set forth in federal statutes and regulations." N.Y. Fam. Ct. Act § 439-a (McKinney 1990). The term "expedited process" is defined as "a process in effect in the family court which reduces the processing time of support order establishment and enforcement efforts . . . by the referral of proceedings to hearing examiners appointed and qualified under section four hundred thirty-nine of this article and exercising the powers set forth in such section." Id. Because federal regulations required New York State to adopt an expedited process for establishing child support, and because those federal regulations further provided that "orders established by means other than full judicial process must have the same force and effect under State law as paternities and orders established by full judicial process," 45 C.F.R. § 303.101(c), the Government apparently believes that the support order in this action must be accorded full force and effect even if it would otherwise be defective.

  Under federal regulations, which were adopted in response to the Federal Child Support Enforcement Amendments, in order to receive federal funding, every state is required to institute expedited support enforcement processes to establish paternity and to establish, modify, and enforce support orders. The federal regulations require that 75% of actions to establish support orders must be completed within 6 months of service of process and 90% must be completed within 12 months, 45 C.F.R. § 303.101(b)(2)(i), thus discouraging state courts from granting stays or multiple adjournments. See Charles v. Charles, 501 N.Y.S.2d 589, 590 (N.Y. Fam. Ct. Onondaga Cty. 1986). The legislative history of the 1984 amendments specifically states that the federal regulations are not intended to specify the particular administrative or judicial structures to be adopted by the states, rather a state's compliance should be measured according to the results it produces. H.R. Conf. Rep. No. 98-925, at 29, reprinted in 1984 U.S.C.C.A.N. 2447, 2454 (Aug. 1, 1984). Thus, there is no support for the proposition that "expedited process" in any way alters the explicit jurisdictional boundaries of New York law set forth in the Family Court Act or the traditional principle that "[c]ourts created by statute can have no jurisdiction but such as the statute confers." Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818 (1988). Moreover, § 439-a specifically states that the "expedited process" adopted in New York will include the referral of proceedings to hearing examiners whose powers are set forth in § 439. Thus, by its terms, § 439-a incorporates the jurisdictional limitations enumerated in § 439.

  II. Because the Support Order Was Entered By a Court Without Subject Matter Jurisdiction, the ...


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