FAMILY
COURT OF THE STATE OF NEW YORK
COUNTY OF
QUEENS
[CAPTION]
Family Court Act ("FCA") Section 439 (a) empowers
Support Magistrates to "hear, determine and grant any relief within the
powers of the court" in proceedings properly before them. FCA Section 439(e) provides that the Support Magistrate's determination "shall include findings
of fact and a final order." The parties are permitted by statute to submit
"specific
written
objections" to the final order for "review" by a
Family Court Judge.
The Family Court Judge's "review" is a narrow one. It is the Support Magistrate, and not the reviewing Judge, who was
present at the evidentiary hearing and was, therefore, uniquely able to
evaluate both the evidence and the credibility and demeanor of witnesses prior
to making an order. Given the above, the scope of the Family Court Judge's
"review" is confined to an inquiry as to whether the Support
Magistrate has made the necessary Findings of Fact and an Order, and upon
review of the record, whether there is a reasonable basis for the Support Magistrate's
order.
On July 19,2013, this Court did issue a Decision and Order on
Objection in which it set forth that part of the parties' extensive litigation
history as was relevant to the issue of child support. (See, Order of
July 19, 2013 which is incorporated herein). Any further relevant portions of
the record were obtained from the court file including the findings of fact as
well as the audio recording of the proceedings.
On May 13, 2013, Respondent-Father's motion for counsel fees was
before Support Magistrate []. Respondent-Father appeared together with counsel
before Support Magistrate []. There was no appearance by Petitioner-Mother when
the case was called at 9:24a.m. and no communication had been received from
her. A hearing was held with respect to Respondent-Father's motion for counsel
fees. Respondent-Father testified that he retained Mr. Ayers as his counsel and
submitted their retainer agreement which was received in evidence. Respondent-Father
testified that he incurred counsel fees of $62,221.52 in connection with the numerous
petitions and applications filed by Petitioner-Mother seeking a reduction,
termination, suspension of the child support order, adjustment of arrears,
refund of overpayments, a petition seeking an award of child support to her, as
well as numerous orders to show cause, motions and subpoenas filed by
Petitioner-Mother, the prosecution of his enforcement petition and motion for counsel
fees herein and the repeated adjournments occasioned by Petitioner-Mother.
Respondent-Father testified that since July 2011 he has appeared
23 times in court always ready to proceed. The Support Magistrate took judicial
notice of the court dates and proceedings under the instant docket, as well as
other child support dockets involving the parties. *1 Respondent- Father submitted the billing records and invoices
from his counsel and testified that these services provided by counsel were
necessary to successfully litigate these matters. Respondent-Father submitted
his financial disclosure affidavit and his 2012 tax return which were received
in evidence by the Support Magistrate and testified that
Petitioner-Mother had the financial means to pay the requested legal fees. At the
conclusion of the hearing, the Support Magistrate reserved decision.
Thereafter, on July 9, 2013, the Support Magistrate issued an order which
granted Respondent-Father's motion for counsel fees and awarded him counsel
fees of $50,000, payable by Petitioner-Mother directly to Respondent-Father by
check or money order at $192 weekly, commencing August 1, 2013
until satisfied.
On August 14, 2013, Petitioner-Mother filed a timely *2 objection
together with an affidavit of service upon Respondent-Father's counsel. Her
objection consists of 35 pages, the majority of which is addressed to her
litany of complaints of misconduct by lawyers and abuse of discretion and bias
by jurists in her divorce, custody and support matters since 2002, to which she
has annexed 38 pages of prior orders and decisions from Family Court and
Supreme Court together with an affidavit of service for the Appellate Division
Second Department. In essence, as is relevant, Petitioner-Mother objects to the
Support Magistrate's order directing her to pay legal fees which she claims
were awarded in the absence of any evidence or hearing, further claims that the
court was without jurisdiction to award counsel fees because Petitioner-Mother
was never served with the violation petition and that she was never served with
papers for a hearing on Respondent-Father's motion for legal fees and was never
provided with papers detailing the work done by counsel. Petitioner-Mother
maintains that she was never sent notice of the May 13 court date, her
modification petition was dismissed and counsel fees awarded even though she was
present in the courthouse, but not called into the courtroom. Additionally,
Petitioner-Mother objects that the Support Magistrate is biased against her, as
were Judge [] and the other judges, referees and magistrates in Queens courts
which cumulatively have prevented her from getting fair rulings and she is seeking
to have the judgment of divorce vacated or modified as it too was based on
fraud. Petitioner-Mother alleges misconduct by attorneys on the
Assigned Counsel Panel who represented her on the support and custody matters.
On August 22, 2013, Respondent-Father, by his counsel filed a
timely rebuttal together with a valid affirmation of service upon
Petitioner-Mother. Counsel for Respondent-Father maintains that the objection
was improperly served upon his office by Petitioner-Mother, a party to
the action and should be dismissed. Additionally, counsel contends that
Petitioner-Mother was served with the violation petition as was determined by
Support Magistrate who conducted a traverse hearing, counsel fees were properly
awarded based upon Respondent-Father's testimony and documentary
evidence supported by him at the hearing before the Support Magistrate which preceded
upon Petitioner-Mother's default upon her failure to appear.
NOW, after consideration of the facts and circumstances of this case,
Petitioner-Mother's objection is denied and Respondent-Father's rebuttal is
granted for the following reasons.
Pursuant to FCA § 439(e), a party filing an objection
must serve a copy of such objection upon the opposing party and file proof of
service with the court at the time of the filing of the objection.
On January 4, 2013, the Honorable Judge [] issued a written order which
prohibited Petitioner-Mother from utilizing mail service and directed that all
future petitions, orders to show cause, motions and objections filed by
Petitioner-Mother must be served by personal service upon Respondent-Father
through his attorney at the attorney's law offices, and that proof of service
must include a signed acknowledgment of receipt. (See, Order of January
4, 2013 which is incorporated herein). The Affidavit of service submitted with Petitioner-Mother's
objection reflects that it was served by Cyril Penn by mail upon Respondent-Father's
attorney. On the right hand side of the affidavit the following words, in a
different handwriting were handwritten in "served by mail and in person
Ayers 540 President St. Brooklyn". There is no signature or attestation
under these words and no affidavit of personal service has been submitted
together with the objection. Counsel for Respondent-Father avers in his
rebuttal that it was Petitioner-Mother *3 who "dropped off' the objection
at his office on August 14,2013. CPLR § 2103(a) mandates that only a non-party
to the action may serve papers. Service of process by the party
himself/herself is a non-waivable jurisdictional defect rendering the action
subject to dismissal. Additionally, a signed acknowledgment of receipt by Respondent-Father's
counsel has not been submitted by Petitioner-Mother as proof of service as is
required pursuant to Judge []'s order of January 4, 2013. Therefore, the
affidavit of service is defective and the objection must be denied.
Even were this court to reach the merits of Petitioner-Mother's
objection regarding the award of counsel fees, a review of the record reflects
that the Support Magistrate properly proceeded to a hearing on
Respondent-Father's motion for counsel fees upon Petitioner-Mother's default
for failing to appear in court as directed and as referenced in this Court's
prior Decision and Order on Objection dated July 19, 2013. The Support Magistrate
conducted a hearing at which she received testimony and evidence on
Respondent-Father's motion for counsel fees. Once an order is entered
upon a party's default, s/he may not seek relief by the filing of an objection
pursuant to FCA § 439(e). Rather, Petitioner-Mother must seek relief from the
order pursuant to CPLR § 5015 by making a motion to vacate the default. See,
Garland v. Garland, 28 AD3d
481 (2nd Dept., 2006); Kondratyeva v.Yapi, 13 AD3D 376 (2nd Dept., 2004); Matterof Widerman v. Murley, 155 AD2d 841 (3rd Dept., 1989); Menaldino v. Johnson, 162 AD2d
758 (3rd Dept., 1990). As such, the court is unable to determine the merits of the
objection and it is therefore denied.
With respect to Petitioner-Mother's objection regarding lack of
notice of Respondent-father's motion for counsel fees *4 it appears that
Petitioner-Mother is raising this issue for the first time in her objection. The law is
clear that a party may not submit proof now and argue factual matters in
his/her objection which s/he failed to offer proof of at a hearing before the Support
Magistrate. See, Matter of Rzemieniewska-Bugnacki v. Bugnacki, 51 AD3d
1029 (2nd Dept., 2008); Redmondv. Easy, 18 AD3d 283 (1st Dept., 2005); Lahrs v. Lahrs, 158 AD2d 944 (4th
Dept.,
1990). In any event, Petitioner-Mother's claim is again belied by her
application before the Support Magistrate on April 3, 2013 for an adjournment
to return with counsel to represent her on her modification petition and
Respondent-Father's motion for counsel fees after the violation petition was
settled on the consent of both parties, without prejudice to Respondent-Father's
right to seek counsel fees. Ironically, in her objection she complains that Mr.
[] her appointed counsel on the violation petition settled that matter but
"refused to do the hearing on the legal fees." *5 Petitioner-Mother's
objection is without merit and is denied.
With respect to Petitioner-Mother's objection regarding the
Court's lack of jurisdiction over the violation proceeding (Docket F[]),
that specific objection as well as objections of bias by the Support Magistrate
and ineffective assistance of counsel were previously denied by Decision and
Order of the Honorable Judge [] on January 4, 2013. (See, Order of January
4, 2013 which is incorporated herein). Any further objection by
Petitioner-Mother is untimely and is therefore denied.
With respect to Petitioner-Mother's objection regarding
dismissal of her modification petition (Supplement "I), including her
claims of not having been provided notice of the court date and the scheme by
Court personnel to call her cases, including the hearing for counsel fees, without
her, those objections were previously addressed and denied by this Court in its
decision of July 9, 2013 and are adopted herein by reference. Any further
objections are denied as untimely.
With respect to Petitioner-Mother's objection that the Support
Magistrate has demonstrated a bias toward her, this Court finds no evidence or
demonstration of bias by the Support Magistrate. Therefore, this
objection is without merit and is denied.
With respect to Petitioner-Mother's remaining objections
regarding bias by other jurists toward her as well as vacating or modifying her
divorce judgment, this Court is without authority to address these matters. In
any event, Judge []'s Order was affirmed by the Appellate Division in [].
Petitioner-Mother's objections are therefore denied.
WHEREFORE, by reason of the foregoing, Petitioner-Mother's
objection is denied and Respondent-Father's rebuttal is granted.
This constitutes the decision and order of this court.
Notify parties and counsel.
Notify Support Magistrate []
Notify SCU.
/S/ JUDGE
FAMILY COURT, QUEENS
DATED: SEPTEMBER 13, 2013
JAMAICA, NEW YORK
*1 The instant docket was
filed by Petitioner-Mother on June 6, 2011 and contains 9 supplemental
petitions (Supplement "A" through "I"). Docket F-[] was
filed by Respondent-Father on March 7, 2012, seeking enforcement of the order
of child support. Docket F-[] was filed on March 19, 2012 by Petitioner-Mother
seeking an award of child support from the custodial parent Respondent-Father.
*2 On July 15, 2013 counsel
for Respondent-Father filed a Notice of Entry of the Support Magistrate's July
9, 2013 Order, together with an affirmation of service upon Petitioner-Mother. Additionally,
the court file reflects that the order for counsel fees was mailed to the
parties on August 13, 2013. Therefore, the objection is deemed timely pursuant
to FCA §439(e).
*3 While this court can appreciate that Petitioner-Mother is pro
se and might have misconstrued Judge []'s order of January 4, 2013 that
Respondent-Father's counsel be personally served by her, such misunderstanding
is belied by the fact that Petitioner-Mother had arranged for someone other
than herself to effectuate service of the instant objection, of her prior objection
decided by this court, and of her matters to the Appellate Division and
therefore is clearly aware that she, as a party may not serve papers relating
to her own proceedings.
*4 Respondent-Father's counsel filed a motion for counsel
fees under the instant docket on December 20, 2011 which contained an affirmation of
service upon Petitioner-Mother's counsel. Respondent-Father's counsel filed a
Notice of Cross Motion on April 4, 2012 which included a request for counsel
fees and which includes an affirmation of service by Overnight Delivery Service
(Federal Express) upon Petitioner-Mother which is dated April 4, 2012.
*5 Page 6 of Petitioner-Mother's objections.
