A New York Family Lawyer said this is a child support proceeding pursuant to Family Court Act article 4 where the father appeals from the order of the Family Court of Kings County dated 7 October 2009 granting the mother’s objection to an order of the same court dated 12 December 2008 dismissing her petition for an upward modification of child support for lack of subject matter jurisdiction to the extent of vacating the order dated 12 December 2008 and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction; and, the mother cross-appeals from the order dated 7 October 2009 granting her objection to the order dated 12 December 2008 only to the extent of vacating that order and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction.
The order dated 7 October 2009 was affirmed insofar as appealed from, without costs or disbursements; and, the order dated 7 October 2009 was reversed insofar as cross-appealed from, on the law, without costs or disbursements, the mother’s objection was granted in its entirety, the order dated 12 December 2008 was vacated, and the matter was remitted to the Family Court of Kings County for further proceedings on the merits of the mother’s petition for an upward modification of child support.
A New York Child Custody Lawyer said the specific events that took place are as follows:
Sometime in December 1998, a mother who was residing in Ithaca filed a petition in the Family Court of Tompkins County for child support with respect to her child (the parties’ child). The father of the child was at that time residing out of state.
By order dated 22 November 1999, the Family Court of Tompkins County directed the father to pay the mother certain child support.
A Manhattan Family Lawyer said that on 23 November 2005, the mother, who stated that she was residing in Brooklyn, filed a petition in the Family Court of Kings County for an upward modification of child support against the father who continued to live outside of New York State.
According to the father, the Family Court lacked subject matter jurisdiction to modify the child support order dated 22 November 1999 because New York had not remained the “residence” of the mother and/or the parties’ child for purposes of Family Court Act § 580-205(a).
In an order dated 12 December 2008, the Support Magistrate dismissed the mother’s petition on that ground.
A Manahattan Child Custody Lawyer said the mother filed an objection to the Support Magistrate’s order and argued that the record developed before the Support Magistrate established that the Family Court had subject matter jurisdiction and that her petition for an upward modification should be heard and determined on the merits.
In reviewing the mother’s objection, the Family Court indicated, among other things, that the Support Magistrate’s findings of fact did not support dismissal of the mother’s petition for lack of subject matter jurisdiction. Nonetheless, the Family Court only granted the mother’s objections to the extent of vacating the order dated 12 December 2008 and remitting the matter to the Support Magistrate to issue supplemental written findings of fact and a new determination on the issue of subject matter jurisdiction.
The instant court agrees with the Family Court that the Support Magistrate’s order was not supported by the evidence presented at the hearing. However, the Family Court erred in not granting the mother’s objection in its entirety since the record was sufficiently developed to establish the existence of subject matter jurisdiction.
The Uniform Interstate Family Support Act (hereinafter the UIFSA) which is adopted in New York as article 5-B of the Family Court Act grants “continuing, exclusive jurisdiction over” a child support order to the state that issued the order; Family Ct Act § 580-205[a]; and as held in Matter of Spencer v. Spencer, 10 N.Y.3d 60, 66, 853 N.Y.S.2d 274, 882 N.E.2d 886. The issuing state loses such jurisdiction where none of the parties or children continue to reside in that state; again in Family Ct Act § 580-205[a] and as held in Matter of Hutchison v. Pirro, 11 A.D.3d 465, 466, 783 N.Y.S.2d 381.
Here, New York was the issuing state for the child support order. As such, New York had continuing, exclusive jurisdiction over that order. Although the father does not reside in the state, New York would retain continuing, exclusive jurisdiction if New York continued to be the residence of the mother and/or the subject child at the time she commenced the proceeding for a modification of child support.
While it is true that the UIFSA does not define the terms “reside” or “residence”, Family Ct Act § 580-101, it has been determined in the cases of Antone v. General Motors Corp., Buick Motor Div., 64 N.Y.2d 20, 30, 484 N.Y.S.2d 514, 473 N.E.2d 742, and Wittich v. Wittich, 210 A.D.2d 138, 139, 620 N.Y.S.2d 351, that a person is a “resident” of New York State when he or she has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year. As held in the case of Ellis v. Wirshba, 18 A.D.3d 805, 805, 796 N.Y.S.2d 388, the case of Schaefer v. Schwartz, 226 A.D.2d 619, 620, 641 N.Y.S.2d 138, and the case of McKenzie v. MAJ Tr., 204 A.D.2d 154, 154, 611 N.Y.S.2d 191, an individual may establish his or her residency with documentary evidence such as a lease, rent receipts, phone bill, utility bills, voter’s registration card or driver’s license.
Aside from the fact that the mother also maintained a residence in Philadelphia where she worked and where the parties’ child attended school, she submitted documentary evidence that supported her testimony that Brooklyn had been and continued to be her place of residence at the time the proceeding at bar was commenced. What’s more, she also presented, among other things, a lease for a Brooklyn apartment which listed herself and the subject child as tenants during the relevant time period; a check for partial payment of the monthly rent payable from her bank account held at a New York credit union which listed her address as being in Brooklyn; New York driver’s licenses issued to her in 2002 and in 2008; and, a New York Voter Registration Card indicating that she had been registered to vote in Kings County since April 1996.
Based upon the documentary evidence submitted by the mother and pursuant to Family Ct Act § 580-205[a][1], it was clearly demonstrated that New York remained her residence, thus, allowing New York to retain continuing, exclusive jurisdiction over the child support order.
In conclusion, the Family Court should have granted the mother’s objection in its entirety. Henceforth, the court ordered that the matter be remitted to the Family Court of Kings County for further proceedings on the merits of the mother’s petition for an upward modification of child support.
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