New York Family Law Blog
A New York Family Lawyer said that, this is a proceeding pursuant to CPLR article 78, Inter alia, to review a determination of the respondent State Commissioner dated May 15, 1978 and made after a statutory fair hearing, which affirmed a determination of the local agency that petitioner had willfully withheld information as to a change in income.
A Nassau Divorce Lawyer said that, in another action for a divorce and ancillary relief, the plaintiff appeals from a judgment of the Supreme Court, Westchester County, entered December 9, 2008, which, after a nonjury trial, inter alia, failed to direct the defendant to pay child support arrears, failed to award her maintenance, and failed to equitably distribute the value of the defendant’s medical license.
The issue in this case is whether defendant is entitled to give child support.
A New York Child Custody Lawyer said the court in deciding the case said that, sole evidence in the record of willful withholding of information is the fact that petitioner received a child support check and failed to report it to the Department of Social Services (department). Petitioner had made no effort to conceal her child support rights. She executed an assignment of these rights to the department and appeared in court to press these rights prior to receipt of the check. Her uncontradicted testimony at the fair hearing was that she thought the check she received was the money remaining after the department had taken what it was owed. This does not rise to the level of substantial evidence that petitioner had willfully withheld information as to a change of income.
Moreover, the department failed to notify petitioner adequately of her duty to report changes in income. There was only a general certification signed by petitioner at the time of her application for assistance. It did not contain any examples of what constituted changes in income nor is there any evidence that petitioner was given verbal examples. Since petitioner had not hidden her eligibility for child support and received the support check subsequent to her assignment of support rights, she had no reason to consider this a change in income.
Finally, the court held that at no point did the department make any determination that the needs of petitioner’s minor child would be met. This alone would mandate the annulment of the State Commissioner’s determination and remand for a new hearing. When it is combined with a total lack of substantial evidence to support the underlying charge, we must annul the determination and grant the petition without any further hearing.
An appellant is obligated “to assemble a proper record on appeal, which must include any relevant transcripts of proceedings before the Supreme Court”. The record must also “contain all of the relevant papers that were before the Supreme Court, including the transcript, if any, of the proceedings”.
A Brooklyn Family Lawyer said for the Father to prevail on his modification petition, he must show that there has been a change of circumstances since the entry of the underlying order and that, based on the totality of the circumstances, a modification of the underlying order would be in the best interest of the children and would promote their welfare and happiness.
Here, a Brooklyn Child Custody Lawyer said the plaintiff appeals from a judgment which, inter alia, failed to direct the defendant to pay child support arrears, failed to award the plaintiff maintenance, and failed to equitably distribute the value of the defendant’s medical license. However, the plaintiff’s failure to provide this Court with the full transcript of the nonjury trial conducted before the Supreme Court renders the record on appeal inadequate to enable this Court to reach an informed determination on the merits. Thus, the appeal must be dismissed.
Accordingly, the court held that the determination annulled, on the law, and petition granted, without costs or disbursements.
Notwithstanding the breach of a separation agreement, the duty to give child support is not affected. The parent obliged to give the same should not unilaterally stop the giving of support without the order of the court. Call us at Stephen Bilkis and Associates our Nassau Family Attorney and Nassau Child Support Attorney can help you.