Matter of Comm'r of Soc. Servs. v. Green

FINDINGS OF FACT   The Commissioner of Social Services petitioned on behalf of Karla Montes on September 27, 2019 to establish a child support order for McKenzly Alejandra Montes Bernard, born September 16, 2016. Cash public assistance for McKenzly was active from September 24, 2019 through January 31, 2020. Medicaid remained active until January 31, 2021. The Commissioner asked for two things: retroactive support and a health insurance only order. Retroactive Support. This case concerns a grey area in child support. In Matter of Chemung County Dept. of Social Servs. v. Crane,¹ the Appellate Division held that Family Court lacked subject matter jurisdiction to order only retroactive child support, when the Department of Social Services (DSS) failed to petition for a child support order when the subject child was receiving cash public assistance. Here, the Commissioner filed when the child received cash public assistance, but the child stopped receiving the benefit before the court entered a final child support order. Did Family Court lose subject matter jurisdiction once the child stopped receiving cash public assistance? With only limited powers, Family Court must be constitutionally or statutorily authorized to act.² Family Court has subject matter jurisdiction over child support proceedings.³ Critical here is determining whether an order calculating only retroactive support is also an “order of child support.” The very definition of an “order of support” distinguishes itself from retroactive support. In Article Four, an order of support is a directive by the court requiring a parent “to pay weekly or at other fixed periods a fair and reasonable sum for or towards the support of such child.”⁴ Similarly, in Article Five, an order of support is a directive by the court requiring a parent “to pay weekly or at other fixed periods a fair and reasonable sum according to their respective means as the court may determine and apportion for such child’s support and education….”⁵ Retroactive support, by contrast is defined as an “amount of support due [and] shall be support arrears/past-due support….”⁶ By definition, retroactive support is arrears/past-due support, as opposed to prospective periodic payments. The statutes plainly distinguish retroactive and child support. Keeping that principle in mind, the statutes allow the court to set retroactive support only if the court enters a child support order. That is, the court has the power to calculate retroactive support if, and only if, the court also orders continuing support. For instance, after the court enters a support order and calculates retroactive support, any support orders can be enforced by income execution under Article 52 of the CPLR: “For the purposes of enforcement of child support orders or combined spousal and child support orders pursuant to section five thousand two hundred forty-one of the civil practice law and rules, a ‘default’ shall be deemed to include amounts arising from retroactive support.”⁷ In other words, an income execution order enforces both the child support order and retroactive support amounts — two distinct items. The distinction matters greatly to Family Court’s subject matter jurisdiction. The Legislature authorized Family Court to calculate the amount of retroactive support, if and only if, the court also entered an ongoing child support order. For example, when setting the effective date of an order of support, the court shall make the final ordered amount the earlier of the petition’s filing date, or when the child became eligible to receive cash public assistance.⁸ The retroactive support is a component of a child support order. Nowhere in Articles Four or Five did the Legislature authorize a stand-alone, retroactive-only order. The statutes’ plain language provide only for ongoing support obligations with a retroactive calculation. If the court is not entering a support order under Articles Four or Five of the Family Court Act, then the Commissioner’s request for a retroactive-only order is asking for relief under a theory of implied contract.⁹ An implied-in-law contract is “a contract implied by law, which ‘is not a contract at all but an obligation imposed by law to do justice even though it is clear that no promise was ever made or intended.’”¹⁰ The law creates a fictitious contract “to assure a just and equitable result,”¹¹ and to prevent unjust enrichment.¹² Other courts have created implied-in-law contracts to recover public assistance given to children from a noncustodial parent by using child support orders.¹³ Family Court indisputably lacks subject matter jurisdiction over contract claims.¹⁴ In New York City, by contrast, a court of civil jurisdiction has subject matter jurisdiction over “actions and proceedings for the recovery of money.”¹⁵ Indisputably, the Commissioner accrued any child support rights from the custodial parent while the child received cash public assistance.¹⁶ But once the Commissioner lost the right to receive child support, he had to go to civil court to seek relief under Social Services Law §104. While the Commissioner has a remedy, it is no longer available in Family Court. Just because Family Court may initially have subject matter jurisdiction does not mean that Family Court cannot later lose subject matter jurisdiction. In other words, subject matter jurisdiction is not indelible. For instance, married parents can petition Family Court to resolve child support issues. But once a divorce action is filed, Family Court loses subject matter jurisdiction, even mid-hearing. In the First Department, the order of filing does not matter: Even if the Family Court petition is filed first, a later-filed divorce complaint will divest Family Court of its subject matter jurisdiction.¹⁷ On November 20, 2019, Judge Kelly denied the Commissioner’s objection on this same issue, but on a different docket: F-05579-19. And the Commissioner’s reliance on Matter of Oneida County Dept. of Social Servs. v. Christman¹⁸ is misplaced. There, as here, the Commissioner filed a child support petition while cash public assistance was still active. But the similarities end there. The cash public assistance did not end while the Commissioner’s petition was pending. Instead, the child support order terminated, when the child turned 21 years old. Also, the issue was not Family Court’s subject matter jurisdiction, but rather whether the father had proven that the child was emancipated before he turned 21 years old. Thus the remittitur to calculate retroactive support had nothing to do with Family Court’s subject matter jurisdiction. The Commissioner’s reliance on Social Services Law §348 (3) is equally misplaced. The subsection states that the Commissioner accrues any “unpaid support obligation that has accrued during the period that a family received family assistance.” While true, it is inapplicable here because the court never entered a final order of support. Had the court done so while cash assistance was still active, and had the father failed to pay his ongoing support obligation in full, then §348 (3) entitled the Commissioner to the “unpaid support obligation.” Here, while Family Court had subject matter jurisdiction to enter a support order while the child received cash public assistance, the court lost subject matter jurisdiction when the benefit ceased. The Commissioner can seek relief in civil court for the full amount of public assistance provided to the child. Health Insurance Only Order. As stated above, the child’s Medicaid was still active. The remaining issue was whether the court could enter a health insurance only order. In other words, could the court order a parent to provide health insurance, when the court did not also enter an order of support? The statute contemplates health insurance only as a component of an order of support, and not as a stand-alone order. The “basic support obligation” not only includes the payment of child support, but also the health insurance determination under the Child Support Standards Act.¹⁹ And Family Court Act §416 makes the health insurance a component of a support order, and not an order by itself: “[e]very support order shall provide…[for] health insurance benefits….”²⁰ By contrast, an order of support is defined without mentioning health insurance. Entitled “Order of support by parent,” the statute requires the court to “make an order requiring the parent to pay weekly or at other fixed periods a fair and reasonable sum for or towards the support of such child.”²¹ Child support orders thus have health insurance provisions as a component of the child support order. In fact, when the Legislature amended §416 in 2009, it explained that federal law required child support orders to provide health insurance coverage, and that “medical support including uncovered medical expenses incurred on behalf of a child, is ‘a mandatory component of child support orders.”²² Thus, Article IV does not permit the court to enter a health insurance only order. And the court will not blink reality by deeming the support obligation is $0, just to enter a health insurance provision. Reducing an obligation to $0 occurs only after the court has made a calculation under the CSSA, and then found the $25 monthly unjust or inappropriate.²³ Here, once the cash assistance closed, the court did not perform a CSSA calculation, and certainly did not consider any deviation factors. For the above-stated reasons, there is no such order as a health insurance only order. The petition is dismissed without prejudice because Family Court lost subject matter jurisdiction, when the cash assistance closed, and the Family Court Act does not permit a stand-alone, health insurance only order. Dated: February 11, 2020