Chautauqua County Commissioner of Social Services ex rel. Jessica R. v. Dana R.

244 A.D.2d 866, 665 N.Y.S.2d 130, 1997 N.Y. App. Div. LEXIS 12193

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1997
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Chautauqua County Family Court for further proceedings in accordance with the following Memorandum: Family Court erred in denying petitioner’s objection to the Hearing Examiner’s order of support. In computing respondent’s support obligation for Jessica R., the subject of this support proceeding, the Hearing Examiner improperly adjusted respondent’s income by deducting the entire amount of an income execution issued by the Child Support Enforcement Unit in another support matter (see, Family Ct Act § 413 [1] [b] [5] [vii] [D]; CPLR 5241). The portion of the execution that is applied to arrears in the other matter is not “actually paid pursuant to court order or written agreement” (Family Ct Act § 413 [1] [b] [5] [vii] [D]), and thus is not properly deductible. Respondent’s other support obligation may be taken into account under section 413 (1) (f) of the Family Court Act upon a claim that the basic child support obligation is unjust or inappropriate (see, Matter of Steuben County Dept, of Social Servs. [Padgett] v James, 171 AD2d 1023). We modify the order, therefore, by granting petitioner’s objection and remitting the matter to Chautauqua County Family Court for a recomputation of respondent’s support obligation. (Appeal from Order of Chautauqua County Family Court, Ward, J.—Support.) Present—Green, J. P., Pine, Wisner, Balio and Fallon, JJ.