GERHARDT, STEVEN M. v. BAKER, MELISSA S.

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
445
CAF 15-00901
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
IN THE MATTER OF STEVEN M. GERHARDT,
PETITIONER-RESPONDENT-APPELLANT,
V MEMORANDUM AND ORDER
MELISSA S. BAKER,
RESPONDENT-PETITIONER-RESPONDENT.
STEVEN M. GERHARDT, PETITIONER-RESPONDENT-APPELLANT PRO SE.
Appeal from an order of the Family Court, Livingston County
(Robert B. Wiggins, J.), entered December 19, 2014 in proceedings
pursuant to Family Court Act article 4. The order denied petitioner-
respondent’s objections to orders of the Support Magistrate.
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, and the matter is
remitted to Family Court, Livingston County, for further proceedings
in accordance with the following memorandum: Petitioner-respondent
father appeals from an order denying his objections to two orders of
the Support Magistrate finding a violation of a prior support order
and modifying the prior support order by, inter alia, requiring
respondent-petitioner mother to pay child support to the father based
on the subject child’s change of residence to that of the father and
by imputing income to the father. We agree with the father that
Family Court erred in denying his objections to the Support
Magistrate’s orders because he was not properly advised of his right
to an attorney on the violation petition brought by the mother (see
Family Ct Act § 262 [a] [vi]; Matter of Soldato v Caringi, 137 AD3d
1749, 1749), and the Support Magistrate erred in failing to conduct a
proper hearing on the father’s modification petition. While “[a]
hearing on a petition for modification of a support obligation need
not follow any particular format” (Matter of Ademovic v Reid, 1 AD3d
899, 899), we conclude that the hearing in this matter was
“ ‘inherently flawed’ ” (id.). Here, the father “was not offered an
opportunity to testify, nor was he permitted to present the sworn
testimony of any other witnesses” (id.), and the cursory handling of
this matter by the Support Magistrate did not provide a substitute for
the “ ‘meaningful hearing’ ” to which the father was entitled (id. at
900). We therefore reverse the order and remit the matter to Family
Court for further proceedings on both petitions in accordance with our
-2- 445
CAF 15-00901
decision.
Entered: June 10, 2016 Frances E. Cafarell
Clerk of the Court