DECISION AND ORDER The parties are divorced and have two children-in-common. Each parent has residential custody of one of their children. On July 1, 2021, the mother, S.S. (hereinafter “Mother or “Ms. S.”) filed a violation petition against the father, A.S. (hereinafter “Father” or “Mr. S.). See Petition for Violation of a Support Order (S., 07/01/2021), Nassau County Family Court Docket Number F-07466-18/21K. She seeks to enforce the provisions of the parties’ divorce documents. See Decision and Order upon Submission in Lieu of Trial (Schwartz Zimmerman, J., 01/23/2018), Nassau County Supreme Court Index Number 200820/15; see also Counter-Judgment of Divorce (Schwartz Zimmerman, J., 04/22/2018), Nassau County Supreme Court Index Number 200820/2015. In her petition, Ms. S. alleged that Mr. S. failed to pay his child support obligation and his pro rata share of unreimbursed medical and extra-curricular activities for the child that lives with her. See id. She also alleged that Mr. S. failed to maintain health insurance, and a life insurance policy, for that child. Id. On March 14, 2022, Mr. S. filed a motion to dismiss. See Not. of Motion (Ferzola, 03/14/2022), Nassau County Family Court Docket Number F-07466-18/21K; see also Aff. in Supp. (Ferzola, 03/14/2022), Nassau County Family Court Docket Number F-07466-18/21K. Mr. S. argues that the parties’ divorce documents are “null, void and unenforceable as a matter of law” because the Child Support Standards Act was misapplied therein. Aff. in Supp. (Ferzola, 03/14/2022), Nassau County Family Court Docket Number F-07466-18/21K. Mr. S. maintains that when calculating the parties’ child support obligations, his maintenance award to Ms. S. should have been added to her income. Id. He further argues that in light of such error, Ms. S. can not possibly prove her enforcement petition since she will not be able to establish civil contempt at trial; to wit, Mr. S. contends that no lawful order has been in effect that requires him to make payments. Id. On March 30, 2022, Ms. S. filed opposition papers. See Aff. of S.S. (S., 03/26/2022), Nassau County Family Court Docket Number F-07466-18/21K. The motion was marked submit. The Court’s determination follows: DISCUSSION MOTION TO DISMISS STANDARD A party to a family court action may file a motion to dismiss for failure to state a cause of action pursuant to New York Civil Practice Law and Rules (hereinafter “CPLR”) §3211(a)(7). See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2022); see also N.Y. FAM. CT. ACT §165(a) (McKinney’s 2022) (FCA adopts and applies CPLR where FCA is silent). In its analysis, the Court must construe the petition liberally to determine whether, within the pleading’s four corners, there exists a cognizable cause of action. See Harris v. Barbera, 96 A.D.3d 904, 905 (2d Dep’t 2012); see also Martin v. Liberty Mutual Ins. Co., 92 A.D.3d 729, 730 (2d Dep’t 2012); Ruffino v. New York City Transit Auth., 55 A.D.3d 817, 818 (2d Dep’t 2008). To that end, the Court must accept all alleged facts within the pleadings to be true. See Martin, 92 A.D.3d at 730; see also Young v. Campbell, 87 A.D.3d 692, 693 (2d Dep’t 2011). In other words, a motion to dismiss for failure to state a cause of action may be granted only where, accepting the petition’s alleged facts as true, the moving papers establish conclusively that there is no claim for relief stated within the petition. See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2022); see also Noble v. Graham, 8 A.D.3d 641, 641 (2d Dep’t 2004); Fields v. Leeponis, 95 A.D.2d 822, 822 (2d Dep’t 1983). Having considered counsel’s arguments within the parties’ papers as well as the law, the Court denies, with prejudice, Mr. S.’s motion to dismiss on the issue of the validity of the parties’ divorce order. MR. S.’S CIVIL CONTEMPT ARGUMENT IS MISGUIDED The Family Court, through the grant of the judiciary law, has the power to punish for both criminal and civil contempt. See N.Y. FAM. CT. ACT §156 (McKinney’s 2022) (applying judiciary law regarding civil and criminal contempt to family courts); see also N.Y. JUD. LAW §750 (McKinney’s 2022) (court’s criminal contempt power); N.Y. JUD. LAW §753 (McKinney’s 2022) (court’s civil contempt power). The court may sanction a party for failure to attend a scheduled court appearance, 22 N.Y.C.R.R. §130-2.1(a) (McKinney’s 2022), frivolous conduct, 22 N.Y.C.R.R. §130-1.1 (McKinney’s 2022), neglect or violation of a duty, or other misconduct. See N.Y. JUD. LAW §753 (McKinney’s 2022). Family Court Act §156 prescribes that judiciary law applies “unless a specific punishment or other remedy for such violation is provided in this act or any other law.” N.Y. FAM. CT. ACT §156 (McKinney’s 2022). The powers of the Family Court to penalize a party who has failed to “obey any lawful order of support” are set forth within Family Court Act Article 4, Part 5.1 N.Y. FAM. CT. ACT ART. 4, Pt. 5 (McKinney’s 2022). Where a party seeks to enforce the provisions of their support order by filing a violation petition, it is the petitioner’s burden to go forward, and such burden must be met through competent proof.2 See Powers v. Powers, 86 N.Y.2d 63, 68 (1995) (in appeal from violation hearing, “[p]etitioner agrees that the burden of proof is hers to sustain.”). The petitioner must demonstrate that there was an order upon which the respondent was directed to pay, that he or she failed to comply in a timely and consistent fashion, and the sum that is alleged to be due and owing.3 See N.Y. FAM. CT. ACT §§454 et al. (McKinney’s 2022). Mr. S.’s assertion that Ms. S. is required to prove civil contempt is faulty as he invokes the wrong standard by which she must meet her burden. In other words, Ms. S. does not have to prove civil contempt, but rather Family Court Act §454 contempt. Notwithstanding, Mr. S.’s contention that Ms. S. will have to show that their divorce judgment was a lawful order in order to prevail is correct. Thus, the Court now addresses Mr. S.’s argument that parties’ divorce judgment is invalid and unenforceable. MR. S.’S MOTION TO DISMISS IS HEREBY DENIED WITH PREJUDICE The parties’ divorce documents are governed by New York State Domestic Relations Law which incorporates the Child Support Standards Act. See N.Y. DOM. REL. LAW §§236, 240 (McKinney’s 2022); see also N.Y. FAM. CT. ACT §§413 et al. (McKinney’s 2022). The Child Support Standards Act (hereinafter “CSSA”) contains a formula for computing the basic child support calculation, based upon parental income, which is presumed to provide a “fair and reasonable sum” to meet a child’s needs within both of his or her parents’ means. See N.Y. FAM. CT. ACT §§413(1)(a) (McKinney’s 2022); see also Cassano v. Cassano, 85 N.Y.2d 649, 652 (1995); Moore v. Abban, 72 A.D.3d 970, 971 (2d Dep’t 2010). A parent’s basic child support obligation is calculated by determining the combined parental income and multiplying it by the appropriate child support percentage so that it may be pro-rated in the same proportion as each parent’s income is to the combined parental income. See N.Y. DOM. REL. LAW §240(1-b)(c)(1),(2) (McKinney’s 2022); see also N.Y. FAM. CT. ACT §§413(1)(c)(1),(2) (McKinney’s 2022). The CSSA dictates that a court must deduct, inter alia, a payor’s maintenance obligation from his or her gross income prior to calculating his or her child support obligation. See N.Y. N.Y. DOM. REL. LAW §240(1-b)(b)(5)(vii)(C); see also N.Y. FAM. CT. ACT §§413(1)(b)(5)(vii)(C) (McKinney’s 2022). Likewise, the CSSA dictates that a payee’s maintenance award must be added to his or her gross income prior to calculating child support. See N.Y. DOM. REL. LAW §240(1-b)(b)(5)(iii)(I) (McKinney’s 2022); see also N.Y. FAM. CT. ACT §§413(1)(b)(5)(iii)(I) (McKinney’s 2022). Moreover, where there exists a durational maintenance obligation,4 5 an order must include an increased child support provision upon termination of maintenance. See Kumar v. Chandler, 149 A.D.3d 709, 711 (2d Dep’t 2017); see also DiFiore v. DiFiore, 87 AD.3d 971, 974 (2d Dep’t 2011); McLoughlin v. McLoughlin, 63 A.D.3d 1017, 1019 (2d Dep’t 2009); Bolotnikov v. Bolotnikov, 262 A.D.2d 317, 317 (2d Dep’t 1999); Goldman v. Goldman, 248 A.D.2d 590, (2d Dep’t 1998); Frei v. Pearson, 244 A.D.2d 454, 455-56 (2d Dep’t 1997). Mr. S. argues that the parties’ divorce order does not comply with one of those requirements. See N.Y. DOM. REL. LAW §§236, 240 (McKinney’s 2022); see also N.Y. FAM. CT. ACT §§413 et al. (McKinney’s 2022). Where parties enter into their own agreement, their stipulation must contain a statement that the parties were advised of the CSSA provisions and the presumptive child support amount under the statute as well as whether the parties are deviating from the basic child support obligation and, if so, the basis for such deviation. See N.Y. DOM. REL. LAW §240(1-b)(h); see also N.Y. FAM. CT. ACT §413(1)(h) (McKinney’s 2022); Tompkins Cty. Support Collection Unit ex rel. v. Chamberlin, 99 N.Y.2d 328, 337 (2003); Hayter v. Hayter, 184 A.D.3d 553, 555 (2d Dep’t 2020); Spivak v. Spivak, 177 A.D.3d 660, 661 (2d Dep’t 2019). Such requirement may not be waived by the parties or their attorneys. See N.Y. DOM. REL. LAW §240(1-b)(h); see also N.Y. FAM. CT. ACT §413(1)(h) (McKinney’s 2022). For that reason, an untimely objection is not considered fatal, see Usenza v. Swift, 52 A.D.3d 876, 877 (3d Dep’t 2008), and an agreement may be considered invalid and unenforceable for failure to comply. See Michael J.F. v. Jennifer M.B., 192 A.D.3d 556, 557 (1st Dep’t 2021) (remanded; agreement did not set forth required recitations); see also Spooner v. Spooner, 154 A.D.3d 1158, 1160 (3d Dep’t 2017) (same); McKenna v. McKenna, 90 A.D.3d 1110, 1111 (3d Dep’t 2011). However, the invalidity of one portion of an agreement does not necessarily invalidate the entire agreement. See Ferro v. Bologna, 31 N.Y.2d 30, 35-6 (1972) (one illegitimate provision “does not vitiate the entire agreement and the other provisions of the agreement may be valid and enforceable.”); see also Young v. Young, 142 A.D.3d 612, 613 (2d Dep’t 2016) (finding child support provisions were invalid and unenforceable but other parts remained valid and enforceable); Cimons v. Cimons, 53 A.D.3d 125, 129 (2d Dep’t 2008) (same). Thus, assuming arguendo that the parties had entered into a divorce stipulation and this Court found that the child support terms and conditions were void, this Court could still enforce any of Mr. S.’s other obligations to Ms. S. and any of Ms. S.’s obligations to Mr. S. In the instant case, a decision and order was rendered after the parties agreed to submit their issues, including child support and maintenance, on sworn affidavits and documents in lieu of a trial. See Decision and Order upon Submission in Lieu of Trial (Schwartz Zimmerman, J., 01/23/2018), Nassau County Supreme Court Index Number 200820/15; see also Counter-Judgment of Divorce (Schwartz Zimmerman, J., 04/22/2018), Nassau County Supreme Court Index Number 200820/2015. The Honorable Hope Schwartz Zimmerman (hereinafter “Justice Schwartz Zimmerman”) applied all appropriate CSSA factors to all of her determinations. See id. She found that neither party had been “completely candid” about their finances and she imputed income to both parties. Id. She determined that no Federal Insurance Contributions Act (hereinafter “FICA”) deductions from their incomes should be made since neither party presented evidence of such. Id. Justice Schwartz Zimmerman calculated the parties’ child support obligations and their pro rata shares. Id. She found that Ms. S. would need all of her financial resources to avoid becoming a public charge and that she needed a substantial period of maintenance. Id. Although there is no mention within the parties’ order about why Justice Schwartz Zimmerman did not consider Ms. S.’s maintenance award in determining child support, such was likely done purposefully based upon her other findings. Id. It is firmly established within the Second Department that, where appealed, any failure to properly apply maintenance to the parties’ incomes will result in remittal for the purposes of doing so as well as increasing child support after maintenance terminates. See Kumar v. Chandler, 149 A.D.3d 709, 711 (2d Dep’t 2017) (remitting matter after finding Supreme Court erred in calculating child support without reducing payee’s income by maintenance obligation and providing method for adjusting child support after maintenance ceased); see also DiFiore v. DiFiore, 87 AD.3d 971, 974 (2d Dep’t 2011) (matter remitted to Supreme Court with directive to reduce husband’s income by maintenance paid to wife for purposes of determining child support obligation as well as adjustment of child support when maintenance ends); McLoughlin v. McLoughlin, 63 A.D.3d 1017, 1019 (2d Dep’t 2009) (remitted; Supreme Court failed to reduce defendant’s income by maintenance paid to plaintiff befong child support obligation and failed to direct increase in child support as of maintenance termination); Bolotnikov v. Bolotnikov, 262 A.D.2d 317, 317 (2d Dep’t 1999) (finding Hearing Examiner erred by failing to take into account father’s spousal support obligation when calculating child support); Goldman v. Goldman, 248 A.D.2d 590, 591 (2d Dep’t 1998) (remitted for new determination; Supreme Court failed to consider father’s maintenance obligation before calculating child support and failed to set forth child support increase upon expiration of maintenance); Frei v. Pearson, 244 A.D.2d 454, 455-56 (2d Dep’t 1997) (failure to apply statutory deductions to father’s income, including maintenance obligation, was error; remitted for new child support calculation and increase in child support after maintenance finished). Mr. S. failed to appeal within the limited period to address any perceived error. See N.Y. C.P.L.R. §5513 (McKinney’s 2022). Instead, years later, he moved in Nassau County Supreme Court for a corrected order and an adjustment of his arrears with no excuse for his failure to appeal. The Honorable Joseph R. Conway (hereinafter “Justice Conway”) denied Mr. S.’s order to show cause, stating that “[w]hile [Mr. S.] concedes the failure to appeal, he does not address why circumventing the appellate process by way of [his] motion [was] appropriate or even within the confines of the law.”6 Dec. & O., pp. 8-10 (Conway, J., 02/04/2022), Nassau County Supreme Court Index Number 200820/2015. Rather than appeal Justice Conway’s determination, Mr. S. has effectively moved this Court for similar relief, couched as a motion to dismiss. This Court has no authority to override the prior decision of a higher court about the issue. In light of Justice Conway’s decision, dated February 4, 2022, Mr. S.’s failure to timely appeal such determination, and Mr. S.’s failure to timely appeal any perceived error within his divorce documents, the Court finds that the parties’ order as issued is lawful and enforceable. Given the pressing, serious nature of an enforcement proceeding grounded in failure to pay support as ordered, the Court hereby directs the parties to appear for their previously scheduled hearing on April 12, 2022 at 2:00 P.M. See 22 NYCRR §205.43 (McKinney’s 2022). The parties are reminded to comply with the Court’s pre-trial order, issued on February 24, 2022, on pain of sanction. ADJUDGED, that the parties’ order as issued is lawful and enforceable; and it is further, ADJUDGED, that accepting all of the alleged facts within the pleadings to be true, Ms. S. has sufficiently set forth causes of action; and it is therefore, ORDERED, that Mr. S.’s motion to dismiss under New York Civil Practice Law and Rules §3211(a)(7) is hereby denied with prejudice; and it is further, ORDERED, that the trial of the matter will proceed on April 12, 2022 at 2:00 P.M. 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, STATE-ISSUED 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: April 5, 2022
