Naus v. Naus

Appellate Division of the Supreme Court of New York

Naus v. Naus

197 A.D.2d 899, 602 N.Y.S.2d 451, 1993 N.Y. App. Div. LEXIS 9341

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 1, 1993

StatusPublished

This text of 197 A.D.2d 899 (Naus v. Naus) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Naus v. Naus, 197 A.D.2d 899, 602 N.Y.S.2d 451, 1993 N.Y. App. Div. LEXIS 9341 (N.Y. Ct. App. 1993).

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Opinion

—Order unanimously reversed on the law with costs and matter remitted to Niagara County Family Court for further proceedings in accordance with the following Memorandum: Petitioner’s pro se application for an upward modification of child support was denied by the Hearing Examiner. An attorney regularly employed by Niagara County Department of Social Services (DSS) then filed objections to the Hearing Examiner’s findings and order. Respondent opposed that filing on the ground that, because DSS was not a party to the proceeding, it lacked standing to file the objections. Family Court denied the objections for the reason that DSS lacked standing. That was error.

Petitioner unquestionably has standing to file objections to the findings and order of the Hearing Examiner (see, Family Ct Act § 439 [e]). Whether the attorney was authorized to file those objections on her behalf is a distinct issue having nothing to do with petitioner’s standing (see, Ledwith v Rosal[900]*900sky, 244 NY 406, 412-413). The DSS attorney informed Family Court that he was acting on behalf of petitioner, not DSS; that petitioner sought legal representation to recover child support; and that he was mandated by law to provide those services (see, Social Services Law § 111-g; 18 NYCRR 347.17). The DSS attorney’s appearance on petitioner’s behalf for the purpose of filing objections did not deprive petitioner of standing nor did it interpose DSS as a party to the proceeding.

The record does not reveal whether petitioner properly submitted a written application for child support enforcement services and executed a "Right to Recovery” agreement that would enable her to obtain legal representation by DSS. Petitioner should have the opportunity to apply for DSS legal services pursuant to 18 NYCRR 347.17, if appropriate, or, in the alternative, to obtain substitute counsel to prosecute this matter further (see, Ledwith v Rosalsky, supra). (Appeal from Order of Niagara County Family Court, Kellick, Jr., J.—Modification of Child Support.) Present—Denman, P. J., Green, Balio, Boomer and Boehm, JJ.

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—Order unanimously reversed on the law with costs and matter remitted to Niagara County Family Court for further proceedings in accordance with the following Memorandum: Petitioner’s pro se application for an upward modification of child support was denied by the Hearing Examiner. An attorney regularly employed by Niagara County Department of Social Services (DSS) then filed objections to the Hearing Examiner’s findings and order. Respondent opposed that filing on the ground that, because DSS was not a party to the proceeding, it lacked standing to file the objections. Family Court denied the objections for the reason that DSS lacked standing. That was error.

Petitioner unquestionably has standing to file objections to the findings and order of the Hearing Examiner (see, Family Ct Act § 439 [e]). Whether the attorney was authorized to file those objections on her behalf is a distinct issue having nothing to do with petitioner’s standing (see, Ledwith v Rosal[900]*900sky, 244 NY 406, 412-413). The DSS attorney informed Family Court that he was acting on behalf of petitioner, not DSS; that petitioner sought legal representation to recover child support; and that he was mandated by law to provide those services (see, Social Services Law § 111-g; 18 NYCRR 347.17). The DSS attorney’s appearance on petitioner’s behalf for the purpose of filing objections did not deprive petitioner of standing nor did it interpose DSS as a party to the proceeding.

The record does not reveal whether petitioner properly submitted a written application for child support enforcement services and executed a "Right to Recovery” agreement that would enable her to obtain legal representation by DSS. Petitioner should have the opportunity to apply for DSS legal services pursuant to 18 NYCRR 347.17, if appropriate, or, in the alternative, to obtain substitute counsel to prosecute this matter further (see, Ledwith v Rosalsky, supra). (Appeal from Order of Niagara County Family Court, Kellick, Jr., J.—Modification of Child Support.) Present—Denman, P. J., Green, Balio, Boomer and Boehm, JJ.

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Bluebook (online)

197 A.D.2d 899, 602 N.Y.S.2d 451, 1993 N.Y. App. Div. LEXIS 9341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/naus-v-naus-nyappdiv-1993.

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