Helen B. v. Joseph D.S.Helen B. v. Joseph D.S.
OPINION OF THE COURT
The respondent Joseph D.S. has filed objections to the order of Family Court Support Magistrate Michael G. Rao, Esq., entered on November 21, 2003, which granted an increase of Mr. S.’s basic child support obligation for the parties’ child Sa
The court has reviewed Mr. S.’s objections, Ms. B.’s petition filed on September 23, 2003, the affidavit of mailing the petition, the Supрort Magistrate’s findings of fact and order, the audiotaped transcript of the fact-finding ¡hearing on October 30, 2003 and the documents made a pаrt of the record at the hearing. For the reasons set forth below, Mr. S.’s objections are sustained.
The affidavit of mailing contained in the court filе states that a copy of the summons and petition was! mailed to Mr. S. in San Diego, California, on October 2, 2003. When Mr. S. failed to appear at the initial return date of October 30, 2003, the Support Magistrate declared Mr. S. in default and, without taking any testimony from Ms. B., proceeded to determine Mr. S.’s new child support obligation based upon documents received from Mr. S.’s current employer.
In his findings of fact, the Support Magistrate determined that service by mail of the modification petition was allowed by Family Court Act § 443. Thus, when Mr. S. failed to appear on the initial return date he was deсlared in default and a decision rendered without a formal hearing or sworn testimony. The court finds that the Support Magistrate misapplied Family Cоurt Act § 443 and erred in declaring Mr. S. to be in default.
Family Court Act § 443 contains miscellaneous provisions concerning the form and content of orders of support and requires under some circumstances that the parties provide updates of certain personal information to support collection units. Additionally, Family Court Act § 443 permits notice to parties of “subsequent hearings” to be ¡sent by first-class mail to the most recent addrеss on file with the support collection unit. The statute, however, does not specifically permit the commencement of a new action by mere mail service. Clearly, once personal jurisdiction is obtained, notice to the party by mail of any subsequent court appеarances, including hearings, is permitted.
It is obvious from the court’s review of the audiotaped transcript of the proceedings on October 30, 2003 and from the Support Magistrate’s findings of fact tliat the Support Magistrate considered Ms. B.’s new petition for an increase in child support to constitute a “subsequent proceeding” rather than a new action, thereby obviating the need to comply with the notice and service rеquirements of Family Court Act §§ 426 and 427. I
The Social Security Act requires each statе to have in effect certain expedited administrative and judicial procedures for establishing paternity and for establishing, modifying and enforсing support obligations (see 42 USC § 654 [20] [A]; § 666 [a] [2]). Additionally, the Social Security Act declares that state due process is deemed satisfied in child support enforcement proceedings if certain minimal notice requirements are met:
“(ii) in any subsequent child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of such a party, the court or administrаtive agency of competent jurisdiction shall deem State due process requirements for notice and service of process to be met with respect to the party, upon delivery of written notice to the most recent residential or employer address filed with the Statе case registry pursuant to clause (i)” (42 USC § 666 [c] [2] [A] [i], [ii]).
The notice by mail provisions of Family Court Act § 443, however, vary significantly from those contained in the Social Security Act in that Family Court Act § 443 does not require a diligent search to ascertain the location of a party, but instead permits mailing to thе address on file with the support collection unit. Moreover, the Social Security Act makes no mention of service by mail, but speaks morе broadly of delivery of notice to the residence or employer of the party. Of additional concern is that the provisions for ordinary mail notice in Family Court Act § 443 do not require proof that the notice was actually delivered to the party and fail to comport with even minimal due process standards for commencement of a child support action (see Zivkovic v Zivkovic,
Moreover, while there may be public ¡policy reаsons to allow more flexibility in service of process in proceedings to enforce child support orders, neither the Social Security Act nor New York state law support a statutory interpretation of Family Court Act § 443 that would permit service by mail alone in a modification аction. Article 4 of the Family Court Act unmistakably treats a modification petition as a separate action. Modification of a child support obligation, as was sought by Ms. B. here, is accomplished not by the filing of a mojtion for such relief, but by the filing of a petition commencing a new аnd separate action, which necessitates issuance of a new summons (see Family Ct Act § 426) and service on the respondent in a manner permittеd by Family Court Act § 427.
Since the provisions of Family Court Act § 443 do not apply to the service of process in this case, the court never acquired jurisdiction over Mr. S. Therefore, the Support Magistrate had no legal authority to declare Mr. S. in default and proceed in his absence.
Mr. S. also objects to the Support Magistrate’s calculation of his income. Although the court need not reach this issue, it notes that the Support Magistrate based Mr. S.’s new child support obligation upon a full 40-hour workweek even though the documentation relied upon by the Support Magistrаte showed 2003 year to date earnings reflecting a! substantially shorter average workweek.
Accordingly, Mr. S.’s objections are sustained. The Support Magistrate’s order dated October 30, 2003 is vacated and the matter remanded to the Support Magistrate for further proceedings consistent with this decision and order.