VAGUE ALLEGATIONS IN CHILD SUPPORT ENFORCEMENT

Matter of Lisa S.-G. v. Lawrence S. Jr., Date filed: 2021-07-02, Court: Family Court, Nassau, Judge: Support Magistrate Sondra Toscano,  Case Number: F-07444-20/20A:

"DECISION AND ORDER The parties are divorced and have one child in common, S.S. (hereinafter “S.S.”). On December 15, 2020, the mother, Lisa S.-G. (hereinafter “Mother” or “Ms. S.-G.”), filed a violation petition against the father, Lawrence W. S., Jr. (hereinafter “Father” or “Mr. S.”). See Petition for Enforcement/Violation of an Order of Support (S.-G., 12/03/2020), Nassau County Family Court Docket Number F-07444-20/20A. In her violation petition, Ms. S.-G. alleged that Mr. S. has failed to pay child support and his pro rata share of child care and educational expenses as ordered. Id. She attached a copy of the parties’ Judgment of Divorce and attendant Stipulation of Settlement to her petition. See Judgment of Divorce (Fusillo, Ref., 10/18/2004), Nassau County Supreme Court Index Number 2004/201772; see also Settlement Agreement (S., 07/10/2004), Nassau County Supreme Court Index Number 2004/201772. On June 11, 2021, Mr. S. filed a motion to dismiss. See Not. of Motion to Dismiss (Claps, 05/30/2021), Nassau County Family Court Docket Number F-07444-20/20A; see also Mem. of Law (Claps, 05/30/2021), Nassau County Family Court Docket Number F-07444-20/20A; Aff. in Supp. of Mot. to Dismiss (S., 05/27/2021), Nassau County Family Court Docket Number F-07444-20/20A. He also sought an award of counsel fees. See id. Mr. S. maintained that Ms. S.-G. failed to attach a copy of the parties’ 2008 child support agreement which establishes that he does not owe Ms. S.-G. any arrears. Mr. S.’s exhibits include the parties’ 2008 agreement and a record of payments he made towards support. See Ex. B (S.-G./S. Agreement, 11/01/2008); see also Ex. D (S. Citigold Account, 03/12/2015-02/28/2021). Mr. S. also argued the theories of laches and equitable estoppel. See Mem. of Law (Claps, 05/30/2021), Nassau County Family Court Docket Number F-07444-20/20A. Finally, Mr. S. asserted that the $75,000.00 arrearage amount sought in Ms. S.-G.’s petition “cannot be arrived at using any calculation that has basis in fact.” See Aff. in Supp. of Mot. to Dismiss (S., 05/27/2021), Nassau County Family Court Docket Number F-07444-20/20A.

On June 28, 2021, Ms. S.-G. filed opposition papers. See Aff. in Opp’n to Mot. to Dismiss (Virdone, 06/28/2021), Nassau County Family Court Docket Number F-07444-20/20A. In her papers, Ms. S.-G. asserted that according to the parties’ 2004 Stipulation of Settlement, any subsequent agreement of the parties had to be endorsed by a court of law, or was to be considered non-binding. Id. She also maintained that Mr. S.’s other theories are without merit. Id.

On July 1, 2021, the motion was marked submit. Having considered the parties’ papers, counsel’s arguments, and the law, the Court’s determination follows:

DISCUSSION

MR. S.’S MOTION TO DISMISS IS GRANTED

A party to a family court action may file a motion to dismiss for failure to state a cause of action pursuant to New York Civil Practice Law and Rules (hereinafter “CPLR”) §3211(a)(7). See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2021); see also N.Y. FAM. CT. ACT §165(a) (McKinney’s 2021) (FCA adopts and applies CPLR where FCA is silent). In its analysis, the Court must construe the petition liberally to determine whether, within the pleading’s four corners, there exists a cognizable cause of action. See Harris v. Barbera, 96 A.D.3d 904, 905 (2d Dep’t 2012); see also Martin v. Liberty Mutual Ins. Co., 92 A.D.3d 729, 730 (2d Dep’t 2012); Ruffino v. New York City Transit Auth., 55 A.D.3d 817, 818 (2d Dep’t 2008). The Court must accept all alleged facts within the pleadings to be true. See Martin, 92 A.D.3d at 730; see also Young v. Campbell, 87 A.D.3d 692, 693 (2d Dep’t 2011). In other words, a motion to dismiss for failure to state a cause of action may be granted only where, accepting the petition’s alleged facts as true, the moving papers establish conclusively that there is no claim for relief stated within the petition. See N.Y. C.P.L.R. §3221(a)(7) (McKinney’s 2021); see also Noble v. Graham, 8 A.D.3d 641, 641 (2d Dep’t 2004); Fields v. Leeponis, 95 A.D.2d 822, 822 (2d Dep’t 1983). Thus, in order to decide the instant motion to dismiss, the Court must determine whether Ms. S.-G. has sufficiently alleged that Mr. S. failed to pay his child support and pro rata obligations as ordered.

On July 10, 2004, the parties’ executed their Stipulation of Settlement. See Settlement Agreement (S., 07/10/2004) Nassau County Supreme Court Index Number 2004/201772. In that document, the parties agreed that Mr. S. would pay child support in the amount of $2,000.00 monthly, commencing on July 1, 2004. Id. The parties’ Stipulation of Settlement does not set forth the parties’ pro rata shares. Id.

On October 18, 2004, the parties’ Judgment of Divorce was issued. See Judgment of Divorce (Fusillo, Ref., 10/18/2004), Nassau County Supreme Court Index Number 2004/201772. The parties’ Judgment of Divorce mirrored their Stipulation of Settlement in regards to basic child support, directing Mr. S. to pay $2,000.00 monthly, effective July 1, 2004. The parties’ Judgment of Divorce does not set forth the parties’ pro rata shares for child care. Instead, the document refers the parties to their Stipulation of Settlement which, as previously mentioned, does not delineate their child care pro rata shares. The parties’ Judgment of Divorce dictates that a “provision for children [sic] educational expenses is not applicable.” Id.

On November 1, 2008, the parties entered into an agreement which, inter alia, reduced Mr. S.’s child support obligation to $1,500.00 monthly, commencing September 1, 2008. See S.-G./S. Agreement (11/01/2008). Although the agreement is signed by both parties, it is not endorsed by a court of law. To that end, the parties’ Stipulation of Settlement, prescribes in pertinent part:

“17. Modification. If the parties mutually agree [sic] permanently change the provisions of their decree of divorce, they must petition the Court to approve and order that change. In the event that the parties do not obtain a court order, the Court will not be bound by any alleged Agreement of the parties.”

Settlement Agreement (S., 07/10/2004), Nassau County Supreme Court Index Number 2004/201772. Given the terms and conditions of the parties’ 2004 Stipulation of Settlement, it appears that their 2008 agreement is not binding. Thus, Mr. S.’s argument that Ms. S.-G.’s petition must be dismissed for failure to attach the 2008 agreement is unpersuasive.

With regards to Mr. S.’s laches and equitable estoppel arguments, such defenses may not be asserted in proceedings seeking to collect child support arrears. See N.Y. FAM. CT. ACT §451(1) (McKinney’s 2021); see also Onondaga Cty. Dep’t of Soc. Servs. v. Marcus N.D., 170 A.D.3d 1561, 1561 (4th Dep’t 2019) (no excuses tolerated regarding child support arrears); Cook v. Miler, 4 A.D.3d 745, 746 (4th Dep’t 2004) (“New York’s statutory scheme does not permit courts to consider [ ] equitable defenses in a proceeding [ ] to collect child support arrearages.”). A court has no authority to reduce or annul child support arrears even where good cause exists for failing to seek a modification or ordering arrears to be paid will result in a grievous injustice. See N.Y. FAM. CT. ACT §451 (McKinney’s 2021); see also Adinolfi v. Callanan, 166 A.D.3d 966, 966 (2d Dep’t 2018); Caldwell v. Caldwell, 124 A.D.3d 649, 650 (2d Dep’t 2105); Fisher v. Nathan, 83 A.D.3d 938, 939 (2d Dep’t 2011); Madelowitz v. Bodden, 68 A.D.3d 871, 875 (2d Dep’t 2009). Even where paternity was not established and it was found that child support was improperly ordered against a party, the Second Department found that a court was prohibited from reducing or vacating arrears accumulated prior to the filing of an appropriate petition. See Westchester Cty. Dep’t. of Soc. Servs. v. Clarke, 188 A.D.3d 709, 710 (2d Dep’t 2020). Thus, the Court finds no merit to Mr. S.’s proffered defenses of laches and equitable estoppel.

Notwithstanding, the Court dismisses Ms. S.-G.’s petition for failure to comply with due process. Due Process is a cornerstone of our system of justice codified within the United States Constitution as part of the Fourteenth Amendment, Section 11 as well as the New York State Constitution as part of Article I, Section 6.2 See U.S. CONST. AMEND. XIV, §1; see also N.Y. CONST. ART. I, §6. Due process requires notice and an opportunity to be heard. See People v. Baxin, 26 N.Y.3d 6 (2015); see also Raynor v. Landmark Chrysler, 18 N.Y.3d 48 (2011); Anita L. v. Damon N., 54 A.D.3d 630 (1st Dep’t 2008); 167-69 Allen Street H.D.F.C. v. Ebanks, 22 A.D.3d 374 (1st Dep’t 2005); Tyk v. N.Y. Education Dep’t, 19 A.D.3d 427 (2d Dep’t 2005); Commissioner of Social Servs. of the City of N.Y. v. Remy K.Y., 298 A.D.2d 261 (1st Dep’t 2002); Dariff v. Moskowitz, 252 A.D.2d 584 (2d Dep’t 1998). Thus, where a parent receives notice of the proceedings and an opportunity to litigate his or her position at a hearing, due process has been met. See Raynor, 18 N.Y.3d at 59; Anita L., 54 A.D.3d at 631; 167-69 Allen Street H.D.F.C., 22 A.D.3d at 376; Matter of Tyk, 19 A.D.3d at 429; Remy K.Y., 298 A.D.2d at 262; Dariff, 252 A.D.2d at 585. With respect to the notice aspect of procedural due process, the means selected for providing notice must be reasonably calculated, under all of the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to defend the action. See Armstrong v. Manzo, 380 U.S. 545 (1965); see also Hiller v. Burlington & M.R.R. Co., 70 N.Y. 223, 227 (1877).

A child support enforcement action is a contempt proceeding under which penalties, such as incarceration, may be imposed. See N.Y. FAM. CT. ACT §454 et al. (McKinney’s 2021). New York State Family Court Act §437 provides that for the purposes of a violation hearing, a respondent is prima facie presumed to have sufficient means to pay support. See N.Y. FAM. CT. ACT §437 (McKinney’s 2021). Moreover, New York State Family Court §454(3)(a) dictates that failure to pay child support as ordered constitutes prima facie evidence that a support order has been willfully violated. See N.Y. FAM. CT. ACT §454(3)(a) (McKinney’s 2021); see also Gorsky v. Kessler, 79 A.D.3d 746, 746 (2d Dep’t 2010). The contempt nature of a child support enforcement proceeding, coupled with the presumptions set forth in the New York State Family Court Act, require notice of clear, specific allegations reasonably calculated to enable a respondent to develop and present a satisfactory defense. See Prinzo ex rel. Campbell v. Jenkins, 251 A.D.2d 709, 709 (3d Dep’t 1998); see also Commissioner of Social Servs. ex. rel. Rynkowski v. Pronti, 227 A.D.2d 705, 706 (3d Dep’t 1996). Vague allegations based upon a total sum of arrearages are insufficient. See Prinzo ex rel. Campbell, 251 A.D.2d at 709; see also Commissioner of Social Servs. ex. rel. Rynkowski, 227 A.D.2d at 706.

In her petition, Ms. S.-G. alleged that “[e]ach month respondent has failed to make payments in full under the existing Supreme Court order” and that he owes $75,000.00. Petition for Enforcement/Violation of an Order of Support (S.-G., 12/03/2020), Nassau County Family Court Docket Number F-07444-20/20A. She further alleged that Mr. S. was ordered to pay child support in the amount of $2,000.00 monthly and a 50 percent pro rata share of “child care/educational expenses.” Id. The parties’ divorce documents do not identify Mr. S.’s pro rata share for child care or educational expenses, which is inconsistent with her allegation of Mr. S.’s failure to pay his 50 percent pro rata share. Moreover, Ms. S.-G. has failed to provide a breakdown of what she maintains Mr. S. owes in child support arrears as opposed to child care and/or educational expenses. She further fails to set forth how she arrived at her total amount of claimed arrears owed. Ms. S.-G.’s allegations lack the requisite specificity required by due process to afford Mr. S. with the ability to prepare and present an adequate defense. Her vague allegations also fail to set forth a cause of action. Accordingly, her petition is dismissed, without prejudice.

MR. S.’S MOTION FOR COUNSEL FEES IS DENIED

In all support matters, at any stage of the proceedings, a court may grant attorneys fees pursuant to New York State Family Court Act §438(a). See N.Y. FAM. CT. ACT §438(a) (McKinney’s 2021); see also Matter of Anna Y. v. Alexander S., 142 A.D.3d 864, 864 (2d Dep’t 2016). Such an award is left to the sound discretion of the court. See Matter of Felix v. Felix, 110 A.D.3d 805, 805 (2d Dep’t 2013). The factors to be considered when calculating an appropriate award include “‘the parties’ ability to pay, the merits of the parties’ positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel’s performance and the fees under the circumstances.’” Roberts v. Roberts, 176A.D.3d 1226, 1228 (2d Dep’t 2019); see also Felix, 110 A.D.3d at 805 (citing cases). The Court may also take into account whether one party has delayed the proceedings, or engaged in unnecessary litigation by failing to comply with discovery and other court orders. See Black v. Black, 140 A.D.3d 816, 816-17 (2d Dep’t 2016); see also Matter of Weiss v. Rosenthal, 135 A.D.3d 780, 781 (2d Dep’t 2016); Branche v. Holloway, 124 A.D.3d 553, 555 (1st Dep’t 2015). Under the terms and conditions of the parties’ 2004 Stipulation of Settlement, the parties’ 2008 agreement is not binding. Thus, the Court finds that Ms. S.-G.’s petition was not frivolous. Accordingly, the Court finds that an award of attorneys fees is not appropriate."