Legal Question in Family Law in New York

Motion to vacate arrears order

Can you motion to vacate an order of the Family Court Hearing Examiner for child support arrears when 1) the divorce judgment states that the ''defendant shall continue to pay $250 bi-weekly child support..'' and that ''all matters of child support arrears shall be refered to a Special Referee to hear and report'', 2) the court did not do a child support worksheet for the working parents, 3) the court did not file a findings of fact as to how child support amount was reached 4) there is no order prior to the divorce ordering child support payments and the Hearing examiner used Fam, Ct. section 461 to get jurisdiction and was reminding that these items did not exist(per petitioner when ask to produce them)?

Asked on 12/19/03, 2:31 pm

1 Answer from Attorneys

Andrew Nitzberg Andrew Nitzberg & Associates
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Re: Motion to vacate arrears order

This may be an 'over-reaching ' of the Hearing Examiner (HE). Section 461(b)(ii) refers to changed circumstances. To make an order of 'arrears' on the basis of 'new circumstances' stretches the language beyond the breaking point.

This is something that can be brought before a Judge or the subject of an appeal to the AD.

I want to ask if the divorce was made in the Family Court or in Supreme Court. And I want to know what was the reference to Family Court in the Divorce Decree.

The matter of the worksheet and findings of fact will not determine the case, but are useful facts to establish the decision was 'arbitrary and capricious'.

A lawyer needs a strong disposition to practice in Family Court. The HE and Referee's often practice 'seat of the pants' law. It can be very informal.

This one may be 'too informal'.

You are welcome to a consultation for no fee at my offices at 42 west 44th street, NY,NY. Please call for an appointment first (646) 591-5786

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12/19/03, 5:15 pm

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