NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 8, 2009
TONYA ANDERSON, PETITIONER-RESPONDENT,
HAL H. HARRIS, RESPONDENT-APPELLANT.
Order, Family Court, Bronx County (Andrea Masley, J.), entered on or about July 11, 2008, which denied respondent's objections to an order of the Support Magistrate, dated April 21, 2008, dismissing with prejudice respondent's supplemental petition for a downward modification of his child support obligation and upwardly modifying his child support obligation to $342 bi-weekly, and which brings up for review an order, same court (Marian R. Shelton, J.), entered on or about January 17, 2006, which, inter alia, (i) denied respondent's objection to a October 11, 2005 ruling of a Support Magistrate denying his motion to vacate his March 3, 2005 default, and (ii) remanded this matter for a hearing to determine child support based on the child's needs or standard of living, whichever was higher, unanimously modified, on the law and the facts, respondent's objections granted to the extent of remanding this matter to Family Court for a recalculation of his income, to include any reduction due to the amount of court-ordered child support provided to his two sons who are not subjects of the instant action, and to determine whether his income would fall below the poverty level, and otherwise affirmed, without costs. Order, Family Court, Bronx County (Lori Sattler, J.), entered on or about January 15, 2008, which denied respondent's objection to a decision, dated July 12, 2007, denying his motion to recuse Support Magistrate Robert Mulroy, unanimously affirmed, without costs. Order, same court (Andrea Masley, J.), entered on or about March 17, 2009, which denied respondent's objection to the Support Magistrate's October 3, 2008 decision and fact-finding and October 8, 2008 order to the extent that it directed a money judgment in favor of petitioner, and dismissed as premature his objection to the extent that it challenged the finding of a willful violation of and the recommendation of incarceration, unanimously affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Nardelli, Renwick, Freedman, Roman, JJ.
Family Court properly ordered child support to be based upon the needs or standard of living of the child, whichever was greater (see Family Court Act § 413[k]). Respondent defaulted by appearing more than two hours late on March 3, 2005. The Support Magistrate reasonably concluded that respondent's default was not excusable (see CPLR 5015[a]). Respondent's claim that he did not have to appear until 11:30 a.m. is refuted by petitioner's adjourn slip indicating that the March 3 hearing was for 9:15 a.m., and respondent failed to produce his adjourn slip. Respondent objected on the ground that the April 21, 2008 support order would reduce his income below the poverty level (see Family Court Act § 413[d]), but Family Court failed to determine respondent's income. If one accepts respondent's tax return for 2005 (the most recent tax return before the April 2008 support order, as respondent requested extensions for his 2006 and 2007 returns), he would be below the poverty level after paying $342 biweekly ($8,892 per year). Neither the Support Magistrate nor Family Court accepted the income shown in the tax return, which they were entitled to do (see e.g. Matter of Childress v Samuel, 27 AD3d 295, 296 ). While exercising its discretion to impute income to respondent (see e.g. Family Court Act § 413[b][v]), the court was "required to provide a clear record of the source from which the income is imputed and the reasons for such imputation" (Matter of Kristy Helen T. v Richard F.G., 17 AD3d 684, 685 ) and "the record is not sufficiently developed to permit appellate review" (id.). When calculating respondent's income, the court should deduct the child support that respondent provided to his two sons who are not the subject of the instant action (see Family Court Act § 413[b][vii][D]).
The Support Magistrate was not "interested" within the meaning of Judiciary Law § 14. "In the absence of statutory grounds, the decision upon a recusal motion is a discretionary one . . . and should not be disturbed unless the moving party can point to an actual ruling which demonstrates bias, which appellant does not do here" (Yannitelli v D. Yannitelli & Sons Constr. Corp., 247 AD2d 271, 271 , lv dismissed 92 NY2d 875  [internal quotation marks, emendations, and citations omitted]).
Respondent's contention that the purge amount set in the October 2008 order ($18,000) is excessive is premature because the purge amount is part of the Support Magistrate's recommendation of incarceration, which is subject to confirmation by Family Court (see Family Court Act § 439[a]). Since Family Court will determine whether respondent is below the poverty line, we note that "[w]here the non-custodial parent's income is less than or equal to the poverty income guidelines amount for a single person . . . unpaid child support arrears in excess of five hundred dollars shall not accrue" (Family Court Act § 413[g]).
Respondent's argument that the contempt proceeding against him for violating a support order should have been dismissed because he was never served with the violation petition is unavailing. In open court on May 12, 2005, respondent's attorney said that petitioner could serve her with the petition; respondent, who was in court, did not disagree. On June 13, 2005, respondent's attorney received the petition, as respondent himself admitted in paragraph 5(c) of his affidavit, sworn to on July 11, 2005.
Respondent's contention that due process was violated lacks merit. "Due process is satisfied so long as a party receives reasonable notice of a claim and an opportunity to be heard" (Matter of Stone v Stone, 218 AD2d 824, 825-826 , lv dismissed 87 NY2d 843 ). Respondent received both.
We also reject respondent's argument that the contempt proceeding should have been dismissed because the Support Magistrate did not decide his motion to dismiss within 60 days. The 60-day deadline in CPLR 2219(a) is "precatory . . . so that a decision rendered after the expiration of the allotted time is still a valid one" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2219:2).
We have considered respondent's remaining arguments, to the extent they are preserved and properly before us on this appeal, and find them devoid of merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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