Matter of O'Sullivan v. Schebilski , 30 N.Y.S.3d 351 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 7, 2016 519679
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In the Matter of HAZEL
O'SULLIVAN,
Petitioner,
v MEMORANDUM AND ORDER
DENNIS SCHEBILSKI,
Appellant.
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Calendar Date: February 17, 2016
Before: McCarthy, J.P., Egan Jr., Rose and Lynch, JJ.
__________
Ameer Benno, New York City, for appellant.
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Lynch, J.
Appeal from an order of the Family Court of Ulster County
(McGinty, J.), entered July 29, 2014, which, among other things,
granted petitioner's application, in a proceeding pursuant to
Family Ct Act article 4, to hold respondent in willful violation
of a prior order of support.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of one child (born in
1992). Pursuant to a support order issued in July 2005, adjusted
in September 2009, the father was directed to pay child support
in the amount of $142 per week. In February 2013, the mother
commenced a violation proceeding in Family Court, contending that
the father had not paid child support totaling approximately
$80,000. At a subsequent hearing, the father admitted that he
had not made a child support payment since March 2005 and owed
more than $99,000. The father testified with regard to his
inability to work since 2001 and a pending personal injury claim,
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but did not offer medical evidence to support his testimony.
With the parties' consent, the Support Magistrate found that the
father willfully violated the support order, granted the mother a
judgment for $47,600 in arrears and recommended a suspended
prison term conditioned on the father paying the personal injury
settlement proceeds to the mother and producing medical evidence
with regard to his disability.
At the confirmation hearing held in June 2013, the father
explained that he was still expecting a personal injury
settlement and a lump-sum award in his pending claim for Social
Security disability benefits. Family Court adjourned the hearing
to August 2013, at which time the mother confirmed that, in July
2013, the father had paid her $12,000, the sum attributable to
the personal injury claim. Since the father's claim for
disability benefits remained pending, the court adjourned the
proceeding a number of times until March 2014, when the father
reported that, although he did not yet know the amount of his
benefit, he had received a "fully favorable" decision in his
disability case. After another adjournment, however, the father
advised that the lump-sum payment of approximately $16,000 was
not available because it was subject to a lien by the Ulster
County Department of Social Services and that he had been awarded
supplemental security income (hereinafter SSI) in the amount of
$808 per month. The matter was adjourned to allow a
representative of the County's Support Collection Unit
(hereinafter SCU) to verify whether or not the lump-sum SSI
payment could be applied to the outstanding child support
obligation. At the next appearance on July 24, 2014, the SCU
representative confirmed that the lump-sum payment was not
available and that SCU was not authorized to garnish any portion
of the monthly SSI award under federal law.1 Although it is
1
The federal SSI program provides benefits to disabled
persons who meet statutory income and resource requirements (see
42 USC § 1382; 20 CFR 416.202). As relevant here, the SSI
program's "basic purpose . . . is to assure a minimum level of
income for people who are . . . disabled and who do not have
sufficient income and resources to maintain a standard of living
at the established [f]ederal minimum income level" (20 CFR
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concerning that the father raised several reservations as to
whether he was authorized to enter into a settlement agreement
with respect to the SSI funds, he was represented by counsel and
eventually consented to Family Court's order, which, among other
things, confirmed the Support Magistrate's finding that he
willfully violated the prior support order and imposed a
suspended six-month prison term requiring him to pay $404 of his
monthly SSI benefit to the SCU. The father now appeals.
We find unavailing the father's arguments on appeal that,
due to his disability, Family Court should not have determined
that he willfully violated the support order and that his consent
to the willfulness finding was neither knowing, intelligent nor
voluntary. It is well settled that no appeal lies from an order
416.110). A person receiving SSI benefits must report "events
and changes in circumstances relevant to eligibility for or
amount of benefits," including any resources received or parted
with (42 USC § 1383 [e] [2]; see 20 CFR 416.708 [d]). 42 USC
§ 407 (a), which prohibits a person from transferring or
assigning his or her future public benefits and exempts the
benefits from "garnishment[] or other legal process," applies to
SSI benefits (see 42 USC § 1383 [d] [1]; Sykes v Bank of America,
723 F3d 399, 404 [2d Cir 2013]). The federal regulations
governing the SSI program similarly prohibit both a person from
transferring or assigning his or her benefits and a party from
garnishing or taking the benefit by other legal process (see 20
CFR 416.533, 416.534 [a]; 31 CFR 212.6). The Second Circuit has
provided three characteristics of "an impermissible 'legal
process': (1) the process is 'judicial or quasi-judicial'; (2)
the process transfers 'control o[ver] property . . . from one
person to another; and (3) the process is applied 'in order to
discharge or secure discharge of an allegedly existing or
anticipated liability'" (Wojchowski v Daines, 498 F3d 99, 109 [2d
Cir 2007], quoting Washington State Dept. of Social & Health
Servs. v Guardianship Estate of Keffeler, 537 US 371, 385
[2003]). Since the issue is not properly before us, we do not
address the propriety of Family Court's suggestion to the father
that he need not inform the federal authorities of the
stipulation.
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issued on consent (see CPLR 5511; Matter of Commissioner of
Social Servs. v Karcher, 129 AD3d 1351, 1351 [2015]; Matter of
St. Lawrence County Support Collection Unit v Chad T., 124 AD3d
1032, 1033 [2015]; Matter of Madison County Support Collection
Unit v Feketa, 112 AD3d 1091, 1092 [2013]). To the extent that
the father claims that his consent was involuntary, such a claim
must be raised in a motion to vacate the underlying order (see
Matter of Commissioner of Social Servs. v Karcher, 129 AD3d at
1351; Matter of Madison County Support Collection Unit v Feketa,
112 AD3d at 1092; Matter of Gabrielle S. [Reberick T.], 105 AD3d
1098, 1099 [2013]).
McCarthy, J.P., Egan Jr. and Rose, JJ., concur.
ORDERED that the appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court