Matter of Broome County Department of Social Services v. Kelley

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 19, 2015 519305
________________________________
In the Matter of BROOME COUNTY
DEPARTMENT OF SOCIAL
SERVICES, on Behalf of
CHERYL L. WHEELER,
Appellant, MEMORANDUM AND ORDER
v
HORACE P. KELLEY,
Respondent.
________________________________
Calendar Date: January 12, 2015
Before: McCarthy, J.P., Lynch, Devine and Clark, JJ.
__________
Robert G. Behnke, County Attorney, Binghamton (Mark Bice of
counsel), for appellant.
__________
Lynch, J.
Appeal from an order of the Family Court of Broome County
(Connerton, J.), entered September 25, 2013, which, in a
proceeding pursuant to Family Ct Act article 4, denied
petitioner's objections to an order of support.
Petitioner, the assignee of the mother of a minor child
(hereinafter the mother), commenced this child support proceeding
in May 2013 pursuant to Family Ct Act article 4. Petitioner
became the assignee of the mother's right to receive support for
her minor child upon the mother's receipt of public assistance
(see Social Services Law §§ 348, 571 [1]; Matter of Livingston
County Commr. of Social Servs. v Pragle, 294 AD2d 906, 907
[2002]). The issue presented on this appeal is whether the
Support Magistrate had the authority to limit the duration of an
-2- 519305
order of support obtained by petitioner for "so long as [the
mother] receives temporary assistance." Petitioner contends that
the support order must continue because the statute does not
permit Family Court to terminate a support order upon the
termination of public assistance. We agree.
Review of the record confirms that after concluding that
there is "nothing in the Family Court Act that says the order
shall continue" upon the termination of public assistance, the
Support Magistrate held that it was not appropriate to continue
the order once the mother's public assistance case closed because
the mother did not appear at the proceeding. In our view, this
was error. First, we note that while the court may have placed
the mother on notice of the hearing, she was not a party nor was
she joined as a necessary party to the proceeding (see Family Ct
Act § 571 [2]). Moreover, the statute clearly provides that a
support order issued in favor of a social services district as
assignee pursuant to Family Ct Act § 571 (1) "shall direct that
payments be made directly to the support collection unit, . . .
so long as there is in effect an assignment of support rights to
such district. Further, the order shall provide that when the
person or family no longer receives public assistance, payments
shall continue to be made to the support collection unit, unless
the person or family requests otherwise" (Family Ct Act § 571 [3]
[a] [emphasis added]). This statutory directive avoids a gap in
payment, while providing a mechanism for payments to be made
directly to the recipient parent (see Matter of Friedlander v
Friedlander, 244 AD2d 812, 814 [1997]). Here, in direct
contravention of the statute, the Support Magistrate's order
provided that payments only had to be made while the mother
received public assistance. While the statute entitles the
mother to commence a de novo support proceeding upon the
cessation of her public assistance benefits (see Family Ct Act
§ 571 [3] [b]; Matter of Burke v Palermo, 190 AD2d 1075, 1076
[1993]), we discern no basis for Family Court's conclusion that
the order of support automatically terminates. In our view,
therefore, Family Court erred when it denied petitioner's
objections to the order of the Support Magistrate.
-3- 519305
McCarthy, J.P., Devine and Clark, JJ., concur.
ORDERED that the order is reversed, on the law, without
costs, and matter remitted to the Family Court of Broome County
for further proceedings not inconsistent with this Court's
decision.
ENTER:
Robert D. Mayberger
Clerk of the Court