Coller v. Rose

213 A.D.2d 1040, 624 N.Y.S.2d 326

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1995
• Status: Published

Opinion

—Determination unanimously annulled on the law with costs, petition granted and matter remitted to respondents for further proceedings in accordance with the following Memorandum: The determination of respondents that voluntary payments made to petitioner by the father of her children were not child support subject to a $50 per month "disregard” (18 NYCRR 352.22 [t]) is not supported by substantial evidence. The $50 disregard extends to child support payments made voluntarily as aid to families with dependent children by a person responsible for support (see, 53 Fed Reg 21644). Petitioner testified that she used the money from her children’s father to provide shelter, clothing and birthday and Christmas presents for the children. Respondents presented no evidence to refute petitioner’s testimony. In our view, petitioner was entitled to retain $50 for each month wherein a voluntary support payment was made. We annul the determination and remit the matter to respondents to recalculate the amount to be recouped from petitioner. (Article 78 Proceeding Transferred by Order of Supreme Court, Oswego County, Hurlbutt, J.) Present—Green, J. P., Wesley, Callahan, Doerr and Davis, JJ.