HOLECK, LISA M. v. BEYEL, SEAN D. ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1212
CAF 15-01119
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
IN THE MATTER OF LISA M. HOLECK,
PETITIONER-RESPONDENT-RESPONDENT,
V MEMORANDUM AND ORDER
SEAN D. BEYEL, RESPONDENT-PETITIONER-APPELLANT.
SEAN D. BEYEL, RESPONDENT-PETITIONER-APPELLANT PRO SE.
LISA M. HOLECK, PETITIONER-RESPONDENT-RESPONDENT PRO SE.
Appeal from an order of the Family Court, Oneida County (Joan E.
Shkane, J.), entered April 23, 2015 in a proceeding pursuant to Family
Court Act article 4. The order denied the objections of respondent-
petitioner to an order of a Support Magistrate.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act
article 4, respondent-petitioner father appeals pro se from an order
that, inter alia, denied his objections to a Support Magistrate’s
order that, among other things, denied his request for a reduction of
his child support obligation. Contrary to the father’s contention,
the Support Magistrate did not err in directing him to apply to the
Social Security Administration for a change in the representative
payee of the subject children’s social security disability (SSD)
benefits from the father to petitioner-respondent mother. The court
in a child support matter has discretion to consider “ ‘everything
available to support the child’ ” (Matter of Webb v Rugg, 197 AD2d
777, 778; see Matter of Graby v Graby, 87 NY2d 605, 611, rearg denied
88 NY2d 875). The evidence in the record before us establishes that
the mother had primary physical custody of the subject children, and
that their needs were best served by having their SSD benefits paid to
her.
We further conclude that, because those payments are to be used
for the benefit of the children and the father failed to establish
that he had done so, the Support Magistrate did not err in directing
that he pay to the mother the amount of those benefits that he
received after the mother filed the petition seeking those payments
for the benefit of the children (see Family Ct Act § 449 [2]; McDonald
v McDonald, 262 AD2d 1028, 1028-1029; see generally Matter of Kummer,
93 AD2d 135, 185-186). Contrary to the father’s contention, the
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CAF 15-01119
Support Magistrate did not award those funds to the mother as support
arrears. Instead, the Support Magistrate directed the father to
provide the mother, the children’s primary custodian, with funds that
were “for the children’s social security payment that [the father]
received and did not give to” the mother and that he failed to
establish that he used for the children’s benefit.
Family Court also properly denied the father’s objection to that
part of the Support Magistrate’s order that rejected his request for a
reduction of his child support obligation. The father requested that
reduction after the mother became the payee for the children’s SSD
benefits, and the father contended that he received less income due to
the change in payee. It is well settled that, “although a dependent
child’s Social Security benefits are derived from the disabled
parent’s past employment, they are designed to supplement existing
resources, and are not intended to displace the obligation of the
parent to support his or her children” (Graby, 87 NY2d at 611; see
Matter of Hollister v Whalen, 244 AD2d 650, 650). Therefore, the fact
that the Support Magistrate directed the father to request that the
Social Security Administration designate the mother as the children’s
representative payee, together with the father’s resulting loss of the
use of that money, does not provide a basis for a downward
modification of the father’s child support obligation (see Matter of
McDonald v McDonald, 112 AD3d 1105, 1107-1108; see generally Graby, 87
NY2d at 611).
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court