DECISION/FINDINGS OF FACT AND ORDER AFTER TRIAL The parties have one child in common, K. S. (hereinafter “K.S.”). The mother, Rachel S. (hereinafter “Ms. S.”), filed a support petition against the father, Evan T. (hereinafter “Mr. T.”). In her petition, she sought Mr. T.’s contribution towards their child, K.S.’s, support. The parties agreed to resolve all aspects of Ms. S.’s petition except for retroactivity. Although the Nassau County Family Court Clerk’s Office (hereinafter “clerk’s office”) date stamped Ms. S.’s petition on August 25, 2020, she argued that she presented her petition to be filed on January 7, 2020. Ms. S. sought retroactivity to January 7, 2020, while Mr. T. maintained that he should only have to pay retroactively to August 25, 2020, the date that Ms. S.’s petition was date stamped. The parties’ settlement was placed on the record and the matter proceeded to trial on the sole issue of retroactivity. On August 2, 2021, a fact-finding was commenced and completed. Ms. S. was present with retained counsel, Marc W. Roberts, Esq. (hereinafter “Mr. Roberts”). Mr. T. was present with retained counsel, Robert G. Venturo, Esq. (hereinafter “Mr. Venturo”). Only Ms. S. testified. No documentary evidence was offered. At the close of trial, the parties delivered their summations. The Court reserved decision. Having considered the evidence presented at trial, the law, and the parties’ arguments, the Court’s decision follows: THE EVIDENCE Ms. S. testified that on November 20, 2019,1 Mr. T. filed a paternity petition. She told the Court that on January 6, 2020, she retained Mr. Roberts to represent her. She stated that while at Mr. Roberts’ office, she completed and signed a support petition. Ms. S. testified that on January 7, 2020, she drove to Nassau County Family Court and “spoke to the clerk’s office.” She told the Court that she brought three copies of her support petition with her. She stated that she requested that her petition be “stamped and placed in [her] file.” She told the Court that one copy of her petition was kept and two copies were returned to her. Ms. S. testified that she does not know if one of the copies that were handed back to her is the original. She told the Court that she observed a clerk “placing [the petition] in [her] file,” but that clerk did not “stamp” the petition. She stated that she was told that her support petition was not date stamped because of Mr. T.’s pending paternity petition. Ms. S. testified that on January 8, 2020, she spoke with Mr. Roberts about what had transpired at the clerk’s office. She told the Court that as a result of her conversation with Mr. Roberts, she telephoned the clerk’s office for further clarification. She stated that she was told that her support petition could not be filed because paternity had not yet been established. She stated that the next time she inquired about the status of her petition was on August 25, 2020 when she went to Nassau County Family Court to file an order to show cause regarding custody. She told the Court that on that date, after she asked about the status of her support petition, she observed a clerk date stamp it. Ms. S. testified that other than her January 8, 2020 telephone call to the clerk’s office and her visit to the clerk’s office on August 25, 2020, she made no other efforts to learn the status of her support petition. She told the Court that it was her assumption that since the support petition “was in [her] file,” it would become active as soon as K.S.’s paternity was established. She acknowledged that was an assumption that she should not have made. DISCUSSION A child support action is a special proceeding commenced by filing a petition. See N.Y. FAM. CT. ACT §§423, 523 (McKinney’s 2021) (commencement of child support proceedings); see also N.Y. C.P.L.R. §304(a) (McKinney’s 2021) (commencement of special proceedings). A support magistrate has the authority to award relief as of a petition’s filing date. See N.Y. FAM. CT. ACT §449 (McKinney’s 2021); see also Anthony L. v. Bernadette R., 193 A.D.3d 510, 511 (1st Dep’t 2021) (order effective as of date of filing); Welt v. Woodcock, 185 A.D.3d 1172, 1174 (3d Dep’t 2020) (father’s child support obligation retroactive to date of commencement of support proceeding); Rough v. Kandell, 135 A.D.2d 700, 701(2d Dep’t 1987) (finding Special Term erred in striking provision for relief to date of application); Sonmez v. Sonmez, 121 A.D.2d 883, 883 (1st Dep’t 1986) (award ordered retroactive to date of filing of petition); Brescia v. Fitts, 453 N.Y.S.2d 458, 459 (2d Dep’t 1982) (petitioner entitled to support award retroactive to date proceeding commenced); Greene v. Greene, 455 N.Y.S.2d 35, 36 (2d Dep’t 1982) (child support payments may not commence earlier than date action commenced). Ms. S. argues that the Court should adopt the view that her petition was filed on January 7, 2020 when she presented the petition for filing. Conversely, Mr. T. urges the Court to find that Ms. S.’s petition was not filed until it was date stamped on August 25, 2020. The Family Court Act appears to be silent on the issue of what constitutes filing. Where there is no prescribed method of procedure within the Family Court Act, the New York State Civil Practice Law and Rules applies. See N.Y. FAM. CT. ACT §165(a) (McKinney’s 2021). Under New York State Civil Practice Law and Rules §304(c), “filing shall mean the delivery of the…petition to the clerk of the court []. At the time of filing, the filed papers shall be date stamped by the clerk of the court who shall file them and maintain a record of the date of the filing and who shall return forthwith a date stamped copy…to the filing party, except where filing is by electronic means.” N.Y. C.P.L.R. §304(c) (McKinney’s 2021) (procedure for filing special proceeding petition). Although Ms. S. testified that on January 7, 2020, she presented her petition for filing to the clerk’s office, she failed to submit corroborative testimony or documentation. In that regard, Ms. S.’s petition was never offered into evidence and she never asked the Court to take judicial notice of such petition. Nonetheless, the Court takes judicial notice of Ms. S.’s support petition, which is dated January 6, 2020 and date stamped August 25, 2020. The Court also takes judicial notice of Ms. S.’s custody petition, which is dated January 6, 2020 and date stamped August 25, 2020. Given that both of Ms. S.’s petitions are dated with the same date and date stamped with the same date, the Court finds that both of Ms. S.’s petitions were filed together on August 25, 2020. Were the Court to rule otherwise, any litigant could come to court and predate their petitions in an effort to get expanded relief. Notwithstanding, a clerk may not prevent a person from filing a petition. See N.Y. FAM. CT. ACT §216-c(b) (McKinney’s 2021); see also N.Y. C.P.L.R. §2102(c) (McKinney’s 2021). Where there is a question about family court’s jurisdiction over a matter, a clerk must file the petition and refer it to a judge to determine its legal sufficiency. See N.Y. FAM. CT. ACT §216-c(c) (McKinney’s 2021). Without substantiating proof that Ms. S. presented her support petition for filing on January 7, 2020, the Court finds that any argument by Ms. S. of malfeasance by the clerk’s office is unworthy of belief.2 This constitutes the decision, opinion and order of the Court. YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CRIMINAL NON-SUPPORT OR CONTEMPT OF COURT; YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSES, STATEISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON APPELLANT, WHICHEVER IS EARLIEST. Check applicable box: Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given]: Dated: August 27, 2021
