DECISION/FINDINGS OF FACT AND ORDER AFTER TRIAL The parties have two children-in-common (hereinafter “children”). On October 18, 2021, the mother, J.S. (hereinafter “Mother” or “Ms. S.”) filed a support petition against the father, F.S., Jr. (hereinafter “Father” or “Mr. S.”). See Petition for Support (S., 10/18/2021), Nassau County Family Court Docket Number F-07102-21. On December 2, 2021, the Department of Social Services (hereinafter “DSS”) intervened since Ms. S. and the children were recipients of public assistance. See Order (S., 12/02/2021), Nassau County Family Court Docket Number F-07102-21. Despite attempts to settle the matter, the parties were unable to resolve the case. On April 20, 2022, a trial in the matter commenced. DSS was represented by Alessandro Frusco (hereinafter “Mr. Frusco”) pursuant to the Student Practice Order. He was supervised by Deputy County Attorney Lucas Kessler, Esq. (hereinafter “DCA Kessler”). Mr. S. proceeded as a self-represented party. The trial continued on April 26, 2022. On that date, only DCA Kessler appeared on behalf of DSS and Mr. S. continued to represent himself. Three witnesses testified during the trial: Child Support Investigator Joy Chasan (hereinafter “Ms. Chasan”), Mr. S., and Ms. S. Both parties admitted documentary evidence. After the close of the evidence, the parties delivered summations. The Court reserved decision. Having considered the evidence presented at trial as well as the law and the parties’ arguments, the Court’s decision follows: THE EVIDENCE TESTIMONIAL EVIDENCE Joy Chasan testified. She told the Court that she is employed by DSS. She stated that she is a Child Support Liaison who appears in court when DSS files petitions seeking to be reimbursed for monies provided to children who are active to public assistance. Ms. Chasan testified that Mr. and Ms. S. have two children together. She told the Court that Ms. S. and her children received public assistance funds for the time period between June 18, 2021 and April 11, 2022. She elaborated that DSS provided Ms. S. and her children with cash assistance and paid for them to live in a shelter. Ms. Chasan testified that DSS sought only to be reimbursed towards the children’s portion of the grant which totaled $40,470.00. She told the Court that DSS was not requesting an order directing Mr. S. to repay the full amount disbursed. She explained that DSS only sought to have the Court apply Mr. S.’s income to the Child Support Standards Act to determine his child support arrears during the relevant time period. Mr. S. testified that he is married to Ms. S. and they have one son together. He told the Court that Ms. S. has a daughter from another union. Mr. S. testified that the entire family, including his elderly mother, used to live together in Valley Stream. He stated that during that time, he and Ms. S. had a fight and she contacted the police. Mr. S. testified that he was arrested and an order of protection was issued against him so he had to leave the marital home. He told the Court that Ms. S. continued to live in the home with the children and his elderly mother. Mr. S. testified that Ms. S. left suddenly with the children. He told the Court that he did not know where she went, but he eventually learned that she had gone to a shelter. He stated that thereafter he went to family court to arrange for visitation. Mr. S. testified that when he spoke with his son, his son told him that living in a shelter was miserable. He told the Court that it broke his heart to hear that. He stated that he loves his family and wants to take care of them. He also stated that he is a good father. Mr. S. testified that it is his belief that he should not have to reimburse DSS for the money they provided for his children’s support. He explained that he has always paid for all of his family’s expenses even when he was prohibited from living with them due to the order of protection and even after they left the marital home. He elaborated that in addition to the household bills that he pays, he has given Ms. S. a car, paid for her insurance, paid for college for her daughter, and sent money to her family in Colombia. He told the Court that Ms. S. did not have to apply for, and should not have applied for, public assistance. He stated that he can not afford to pay all of the household bills if he is ordered to repay DSS. Mr. S. testified that he is a Haitian immigrant. He told the Court that he is a responsible person. He stated that he speaks four languages. Mr. S. testified that he has always worked hard to make a living. He told the Court that he has worked for the Marriott Resorts Hotel for the past sixteen years. He stated that he works approximately thirty-five hours (35) per week and earns approximately $40.00 an hour. He stated that he is a Certified Bartender. He told the Court that from March, 2020 until September, 2021, he was unemployed due to the worldwide COVID-19 pandemic. He stated that during that time, he paid the bills by using his savings. Ms. S. testified that the family had been living together in the marital home. She told the Court that she fled from there with the children because Mr. S. had become increasingly abusive to her and it was not a safe place for her. She stated that she took the children to a domestic violence shelter and, while there, she applied for public assistance to help pay their bills. She explained that it was only a temporary situation. Ms. S. testified that she does not know how much money DSS provided to her. She told the Court that DSS gave her and her children money that was deposited onto a SNAP card and funded their shelter stay. She stated that she was not paying attention to the amount of money DSS outlaid because she was focused on her children and moving forward from her past bad experiences. Ms. S. conceded that while she and the children resided with Mr. S., he paid for all of the household bills. She elaborated that although Mr. S. paid for everything for the family, she had no access to any of the funds because he controlled everything. DOCUMENTARY EVIDENCE DSS admitted the parties’ Statement of Assistance, dated April 15, 2022, into evidence as Petitioner’s Exhibit 1. Mr. S. admitted five (5) of his 2022 pay stubs into evidence as Respondent’s Exhibit A. Mr. S. admitted his 2021 W-2 into evidence as Respondent’s Exhibit B. Mr. S. admitted his signed, but un-notarized, financial disclosure affidavit, dated January 28, 2022, into evidence as Respondent’s Exhibit C. DISCUSSION THE STUDENT PRACTICE ORDER Mr. S. took umbrage with Mr. Frusco’s representation of DSS since DCA Kessler was also present for DSS. Mr. Frusco clearly announced his appearance on the record. He told the Court that he was a law student, appearing under the Student Practice Order, and was being supervised by DCA Kessler. Under 22 N.Y.C.R.R. §805.5, which is commonly referred to as the Student Practice Order, law students who have completed at least two law school semesters, and eligible law school graduates, are permitted to render and perform certain legal services. See N.Y.C.R.R. §805.5(a) (2022). Such non-admitted “law interns” may appear in family court to furnish legal services in contested matters when under an attorney’s immediate supervision and in uncontested matters when under an attorney’s general supervision. See N.Y.C.R.R. §805.5(b)(5) (2022). The Student Practice Order is authorized by New York State Judiciary Law §§478 and 484. See N.Y. Jud. Law §§478, 484 (McKinney’s 2022). That is to say, the Student Practice Order is an exception to the provisions within those statutes which prohibit the unauthorized practice of law.1 See id. Accordingly, Mr. S.’s objection to Mr. Frusco’s representation of DSS in the matter, while under DCA Kessler’s supervision, is unsupported by law, and was overruled by the Court. Notwithstanding, the rigors of law school prevented Mr. Frusco from continuing to litigate the action after the first trial date, and DCA Kessler handled the matter for DSS for the remainder of the trial. DSS’S ARREARS-ONLY CHILD SUPPORT APPLICATION Under Family Court Act §422(a), DSS is authorized to initiate proceedings against parties responsible for contributing to the support of children2 who are public assistance recipients. See N.Y. FAM. CT. ACT §422(a) (McKinney’s 2022); see also N.Y. SOC. SERV. L. §102(1) (McKinney’s 2022); Commissioner of Soc. Servs. v. Omar G., 200 A.D.3d 527, 528 (1st Dep’t 2021) (finding jurisdiction since DSS filed child support petition while child was receiving public assistance). Such responsible parties are required to reimburse DSS for the costs associated with such children being cared for at public expense, or liable to become so dependent. See N.Y. FAM. CT. ACT §§413, 415, 422 (McKinney’s 2022); see also N.Y. SOC. SERV. L. §102(1) (McKinney’s 2022). Such responsible parties are accountable to DSS for monies expended which accrued as of the date the children became active to public assistance. See N.Y. FAM. CT. ACT §§440(1)(a)(iii), 449(2) (McKinney’s 2022); see also Soldato v. Benson, 128 A.D.3d 1524, 1525 (4th Dep’t 2015) (directing respondent to pay child support retroactive to date children became eligible for public assistance). A support magistrate is charged with directing the payment of child support arrears, either in one lump sum or periodic sums. See id. When determining the amount of child support owed to DSS, the Court must follow the Child Support Standards Act. See N.Y. FAM. CT. ACT §§413(1)(a) (McKinney’s 2022). The Child Support Standards Act (hereinafter “CSSA”) contains a formula for computing the basic child support calculation which is presumed to provide a “fair and reasonable sum” to meet a child’s needs according to parental income. 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 presumption exists that the child support amount computed under the statutory guidelines is correct, but that presumption may be rebutted, and the child support obligation adjusted, upon a support magistrate’s finding that the non-custodial parent’s obligation is “unjust or inappropriate.” N.Y. FAM. CT. ACT §413(1)(f) (McKinney’s 2022); see also Cassano, 85 N.Y.2d at 653; Moore, 72 A.D.3d at 971. In its analysis regarding whether or not the non-custodial parent’s pro rata share of the basic child support obligation is unjust or inappropriate, the court must consider the factors enumerated in New York State Family Court Act §413(1)(f). See N.Y. FAM. CT. ACT §413 (1)(f) (McKinney’s 2022) (setting forth statutory factors); see also Cassano, 85 N.Y.2d at 653; Moore, 72 A.D.3d at 971-72. Thereafter, if the court decides that the non-custodial parent’s pro rata share of the basic child support obligation is unjust or inappropriate, the court must issue a written order setting forth the factors it considered and the reasons for its departure from the basic child support obligation. See N.Y. FAM. CT. ACT §413(1)(g) (McKinney’s 2022); see also Moore, 72 A.D.3d at 971-72. DSS seeks an arrears-only order based upon Mr. S.’s salary. The Statement of Assistance admitted at trial shows that vendor payments were outlaid from June 18, 2021 through November 30, 2021 and cash assistance was outlaid from June 18, 2021 through March 31, 2022. Mr. S. testified that due to the worldwide COVID-19 pandemic, he was unemployed from March, 2020 until September, 2021 and used his savings to pay the bills. Thus, the Court finds that Mr. S. has an obligation to reimburse DSS for the time period between September 1, 2021 and March 31, 2022.3 The statutory child support percentage for two children is 25 percent. See N.Y. FAM. CT. ACT §413(1)(b)(3)(ii) (McKinney’s 2022). For the purposes of calculating child support, Mr. S.’s ability to earn is reflected on his paystubs. Mr. S.’s regular rate of pay is $42.07 an hour, which calculates to be $87,505.60 annually. Mr. S.’s adjusted gross income is $79,379.86 annually.4 25 percent of $79,379.86 yields a $19,844.97 per year child support obligation, or a $381.63 weekly child support obligation. Thus, Mr. S.’s arrears for the thirty-one (31) week time period between September 1, 2021 and March 31, 2022 are hereby established in the amount of $11,830.53. The Court finds Mr. S.’s argument, that he does not owe DSS any money since he was paying for the family’s household expenses while Ms. S. and the children were active to public assistance, to be unpersuasive. “[V]oluntary contributions to household expenses do not furnish a basis to depart from the Child Support Standards Act calculation.” Weissbach v. Weissbach, 169 A.D.3d 702, 703-04 (2d Dep’t 2019) (citing N.Y. FAM. CT. ACT §§413(1)(f)). Moreover, a non-custodial parent’s voluntary payments for the benefit of his or her children are considered gifts and may not be credited against court-ordered child support. See English v. Smith, 173 A.D.3d 1022, 1024 (2d Dep’t 2019) (child’s cellular telephone bill and gifts could not be used as offset against child support); see also Byrnes v. Javino, 145 A.D.3d 718, 720 (2d Dep’t 2016) (“Voluntary payments made by a parent for the benefit of his or her children and not pursuant to a court order may not be credited against amounts due under the order.”); LiGreci v. LiGreci, 87 A.D.3d 722, 724 (2d Dep’t 2011). Finally, the cost of transportation, meals and entertainment during regular visitation does not justify a credit against a non-custodial parent’s basic child support obligation. See Decillis v. Decillis, 152 A.D.3d 512, 514 (2d Dep’t 2017). Thus, the Court finds that Mr. S.’s child support obligation is neither unjust or inappropriate and there is no basis to deviate from the presumptively correct amount. See N.Y. FAM. CT. ACT §413 (1)(f) (McKinney’s 2022). Moreover, the Court finds no basis to annul his arrears. See N.Y. FAM. CT. ACT §451(1) (McKinney’s 2022). Accordingly, the Court orders Mr. S. to pay $11,830.53 towards the support of his children for the time period between September 1, 2021 and March 31, 2022. CONCLUSION ADJUDGED, that DSS is entitled to Mr. S.’s contribution towards his children’s support for the time period between September 1, 2021 and March 31, 2022; and it is therefore, ORDERED, that child support arrears are hereby established in the amount of $11,830.53. Mr. S. shall pay $381.63 weekly towards the support of his children, through the Support Collection Unit, until such arrears are satisfied. The parties’ temporary order of support is hereby vacated. Mr. S. shall be credited for any payments he made upon the parties’ temporary order of support. 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, 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: May 2, 2022
