In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, as denied his objections to stated portions of an order of the same court which, after a hearing, inter alia, fixed the father’s child support arrears in the sum of $20,046.76 and awarded the mother counsel fees in the sum of $5,000.
“In reviewing a determination of the Family Court, deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses”.
The Support Magistrate properly found that the father was in arrears for the sum of $1,365.13 for his pro rata share of unreimbursed medical expenses of the parties’ two sons. The mother’s testimony at the fact-finding hearing and her submissions of medical expense receipts satisfied her initial burden of presenting prima facie evidence of the father’s nonpayment of this amount. The father proffered no proof of having reimbursed the mother for any of the medical expenses for which she sought reimbursement.
In addition, the mother met her initial burden of presenting prima facie evidence of the father’s partial payments of his child support obligation for November 2008 through 2010. The father failed to offer evidence sufficient to rebut her showing of the father’s partial payment for those dates
The Support Magistrate erred in finding that the father failed to make any child support payment whatsoever in January, February, March, or April 2011. The mother testified that she received a full payment for January 2011 in the amount of $2,190 and that she received three partial payments of $1,500 in each of the months of February, March, and April 2011.
The Support Magistrate should have credited the father for these payments. Since the tables appended to the Support Magistrate’s Findings of Fact dated May 12, 2011, and Supplemental Findings of Fact, do not accurately reflect all of the payments that the Support Magistrate correctly credited to the father from November 2008 through 2010, it is not possible to determine the manner in which the Support Magistrate calculated the child support arrears and interest. Therefore, the matter must be remitted to the Family Court, Kings County for a calculation of the correct amount of child support arrears, and thereafter, the entry of an appropriate order and money judgment.
“Once a finding of willfulness was made, the court was required by Family Court Act § 438(b) to award an attorney’s fee to the mother”. Under the circumstances of this case, the Support Magistrate properly found that the attorney’s fee of $5,000 was reasonable.
Accordingly, the Court modifies the Order, on the facts and in the exercise of discretion, by deleting the provisions thereof denying the father’s objection to so much of the order, as fixed the father’s arrears for child support in the sum of $20,046.76; as so modified, the order, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for further proceedings in accordance herewith.
In another child custody proceeding pursuant to Family Court Act article 6, the maternal grandmother appeals from an order of the family Court, Kings County, which, without a hearing, dismissed her petition to modify an order of custody, with respect to the subject child, and directed that no further petitions for modification of the order of custody, would be accepted for filing without leave of court.
As the Children’s Services correctly concedes, under the circumstances of this case, the Family Court improperly dismissed, without a hearing, the maternal grandmother’s petition to modify an order of custody, with respect to the subject child. Accordingly, the order must be reversed, the maternal grandmother’s petition reinstated, and the matter remitted to the Family Court, Kings County, for further proceedings on the petition. In light of certain remarks made by the Court Attorney Referee, the proceedings should be held before a different Court Attorney Referee.
Further, the Court noted that the maternal grandmother’s request for legal assistance to amend her petition is not properly before this Court and would be properly made before the Family Court.
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