On January 3, 2012, the Court received a thirty-three page facsimile from an individual named J. S. transmitting the petitioner's Objection to the Decision/Order filed and entered on November 16, 2011. The facsimile indicated that it was copied to the attorney for the respondent. Inasmuch as the petitioner is self-represented, the Court accepted the Objection, although it was not in strict compliance with the requirements for an objection contained in Section 439 of the Family Court Act. For her future reference, the petitioner is cautioned that the Court does not accept filings by facsimile. The Court did not receive any rebuttal from the respondent.

On January 24, 2012, the respondent, representing himself, filed an Objection to the Order Entry Money Judgment, filed and entered on December 23, 2011. An Affidavit of Service was filed with the Objection, indicating that the Objection had been properly served upon the petitioner. The Court did not receive any rebuttal from the petitioner.

In making its determination on these Objections, the Court reviewed the case file and the audiotape of the support hearing.

The following information provides a background for the Objections. On November 3, 2010, the petitioner, who resides in Durham, North Carolina, initiated a petition seeking the modification and enforcement of a New York State child support order dated March 27, 2006 under the Uniform Interstate Family Support Act (UIFSA). Although the respondent was identified by name and Social Security number on the face of the support order, the UIFSA petition listed an incorrect Social Security number for the respondent. The petition was dismissed on February 14, 2011 after that respondent, who resides in North Carolina and has a different first and middle name, contacted the Court concerning the mistaken identity.

On March 3, 2011, the petitioner initiated a second UIFSA petition for modification and enforcement; this petition contained the respondent's correct Social Security number and the address for the respondent's mother. The matter was scheduled for a first appearance on April 11, 2011, but the date was subsequently rescheduled to July 5, 2011 due to the respondent's surgery and subsequent medical treatment for cancer. A hearing was conducted on November 4, 2011 with the petitioner appearing telephonically from North Carolina and with the respondent personally appearing together with his attorney.

The Support Magistrate issued a Decision/Order, filed and entered on November 16, 2011, in which the respondent was adjudged to have willfully violated the support order dated March 27, [*2]2006 in that he did not notify the petitioner of changes in his income and employment.

The Support Magistrate granted the petitioner's application for modification of the support order, set the respondent's support obligation at $104.12 per week effective January 1, 2010, directed the respondent to enroll the child through his wife's health insurance plan, and directed the parties to equally share in any uncovered health care expenses. The Support Magistrate also directed the respondent to pay $168.00 per week in retroactive support from June 1, 2007 until December 31, 2009 due to the respondent's willful violation of the support order. The issuance of a money judgment for the petitioner was deferred until the Onondaga County Support Collection Unit computed the amount of arrears. On December 23, 2011, a money judgment in the amount of $29,310.00 was entered in favor of the petitioner for support arrears.

The petitioner objected to the determinations of the Support Magistrate. The Court notes that the petitioner's paperwork was extremely difficult to understand. She made the following arguments: (1) the support obligation is incorrect as the petitioner's adjusted income is $3,342.00 per year from her 2010 tax return rather than $24,030.00 as used in the support calculation; (2) the Court erred in permitting the respondent to claim certain business expenses, i.e., the amounts paid to his wife and to another employee; (3) the Court erred in not directing the respondent to reimburse her for his share of the child's previously paid insurance premiums and health care expenditures; (4) the Court erred in directing the parties to equally share uncovered medical costs; (5) the respondent has not followed the current support order in that the petitioner has not received payments in the amount of $104.00 per week or health insurance cards for the child; and (6) a lien should be placed on the respondent's property so that arrears will be paid by his estate in the event of his death.

The respondent objected to the amount of the arrears stating it did not accurately reflect all of his child support payments. He stated that he has proof the payments were made.

As a preliminary matter, during the Objection process the Court will not review new evidence as it is the responsibility of each party to bring forth all of his or her evidence at the time of the hearing before the Support Magistrate. (Lahrs v. Lahrs, 158 AD2d 944.) In addition, this Court may not consider any allegation of new violations of the order or any application for additional relief during the objection process as these are proper subjects for petitions. Accordingly, the petitioner's arguments under number 5 and number 6 are denied.

With respect to the petitioner's arguments:

(1) The petitioner's adjusted income for purposes of calculating support under New York law is determined by subtracting FICA and Medicare payments from the annual gross income (including Social Security benefits). Per the petitioner's 2010 tax return, her Social Security benefits were $24,025.00 plus $3,189.00 from the State of New York. The petitioner testified that the New York State amount was payment for back wages. The Support Magistrate did not err in basing the support calculation on the petitioner's disability income nor was it an abuse of discretion not to add in the New York State income since it appears to be a one-time payment. The Court will not disturb the Support Magistrate's support calculation due to these factors. The petitioner's argument is denied.

(2) The respondent was not required to submit quarterly employee statement forms to the Court to prove that he employed other individuals in his business. The respondent was very credible in his testimony that he was unable to work on a full-time basis in his commercial truck washing business during 2011 due to surgery, chemotherapy, and radiation and that he employed his wife and another employee on a part-time basis to keep the business operational. The petitioner's argument [*3]is denied.

(3) The Support Magistrate did not make an error of law in her decision not to make an award of past health insurance premiums and past medical expenditures. There was no credible evidence that the petitioner applied for any health insurance other than Medicaid for the child. There is also no evidence that the petitioner sought the aid of the Court to modify the support order. The petitioner's argument is denied.

(4) The Support Magistrate did not make an error of law or an abuse of discretion in directing the parties to equally share in uncovered medical expenses for the child. The petitioner's income makes up 43% of the combined adjusted parental income under the Support Magistrate's calculation. As explained in a later part of this decision, where the income of one of the parties is in doubt, the Court will not disturb the Support Magistrate's decision for the parties to equally share in uncovered health expenses. The petitioner's argument is denied.

The respondent's objection is denied as the objection process is not the proper venue for disputing the calculations of the Child Support Unit. If the respondent has evidence that support monies were paid but not credited to his account, his proper course of action is to file a petition seeking modification of the judgement amount. Notwithstanding the denial of the respondent's Objection, the Court will modify the support order and judgment based upon its review of the evidence and testimony during the petitioner's Objection. (Baker v. Rose, 23 AD3d 1112.)

Statutory law states that a support order shall be modified retroactive to the date of the filing of the petition. (Fam.Ct. Act §451.) Appellate case law has held that the new support amount may be effective as of the date that the noncustodial parent became employed under certain circumstances. (Monroe County Department of Social Services v. Campbell, 161 AD2d 1176.)

Under the circumstances of this case, however, this Court declines to make the support award retroactive to the date that the respondent became employed due to a lack of credibility in the petitioner's testimony as well as inconsistencies in her testimony. Her testimony was extremely evasive and non-responsive at trial replete with interruptions and digressions. For example, when she was asked about her marriage, which took place after she and the respondent separated, she testified that she did not know the dates of the marriage, adding that she "chooses not to remember." This information was relevant as there was undisputed testimony that the petitioner contacted the respondent during the time frame of 2008 regarding his consent to the adoption of the subject child by her husband. The petitioner also testified that she left her nursing job "voluntarily" in 2008 and that she is unable to work due to "stress involving her marriage." She emphatically denied any allegations that she was forced to resign on threat of criminal charges; however, she provided no competent medical evidence showing that she is unable to work. The Support Magistrate alluded to this fact in her decision. Appellate case law has held that the determination of the Social Security Administration that the petitioner is disabled is not binding on the question of whether the petitioner is unable to work for the purposes of calculating child support. (Bukovinsky v. Bukovinsky, 299 AD2d 786.) Nevertheless, at this time this Court declines to impute the petitioner's income at the time she was employed (approximately $70,000.00) as her current income for the purpose of the child support calculation. The petitioner also testified that she moved to Durham, North Carolina in 2010. She stated that she paid $329,153.00 to have her home built and that she has no mortgage on the property. The petitioner was extremely evasive about the size and configuration of her residence. She stated she did not know the square footage but did testify that there are separate [*4]living quarters occupied by her mother. The petitioner denied that she receives any regular financial support from her mother, but her testimony was not credible. When asked why she waited until 2010 to file a violation petition when the respondent stopped sending her his monthly court-ordered job search log in 2007, she stated that she could not file as she did not know the respondent's current address. Her testimony, however, indicates that she was aware of the address of the respondent's mother.

The Court will not disturb the Support Magistrate's finding that the respondent willfully violated the 2006 order when he became employed in 2007 and did not notify the respondent so that the support obligation could be modified. It does not reflect favorably on the respondent that he chose to evade his responsibility to pay his fair share of child support, even if he has not seen the child since 2006.

In regards to the calculation of the retroactive amounts of support, as explained more fully below, the Court will vacate that portion of the support order. It would not be practical or fair to compute child support obligations based on a paucity of financial information from the petitioner during the time in question. For example, the petitioner emphatically stated that there was no lawsuit connected with her resignation; however, there is no satisfactory explanation of where she obtained over $325,000.00 with which to construct a residence. The petitioner did testify that she received a lump sum from the sale of a home jointly owned with the respondent but this amount fell far short of $325,000.00. In any event, from the time that the petitioner and the respondent separated it is clear that the petitioner had significant financial resources which would have been factored into the calculation of the support obligation.

The petitioner's explanation of why she did not file an enforcement or modification petition is not credible. The petitioner could have filed a petition using the respondent's last known address and then asked the court for an alternative means of service or filed using the respondent's mother's address. In fact, she did use the address of the respondent's mother on her UIFSA petition and there does not appear that there was any problem effecting service on the respondent. The Court is concerned that the petitioner may have chosen to file her petition after she had transformed her savings, which would have affected her share of the child support obligation, into a residence, which does not affect her share of the child support obligation.

It is well settled that a noncustodial parent may not profit by willful failure to obey an order of support. The Court finds that it is equally unfair for the custodial parent to reap a financial windfall in retroactive support in a modification petition in which her testimony regarding her own financial status was evasive and not credible and in which there are suspicious circumstances surrounding her delay in filing.

Based upon these circumstances, the Court will vacate the modified support obligations which were effective prior to the filing date of the UIFSA petition on March 3, 2011, including the temporary order of support dated July 15, 2011. (The Court will not use the filing date of the petitioner's first UIFSA petition since it was her responsibility to ensure that it contained the respondent's correct Social Security number.) Instead, the Court will continue the support obligation contained in the 2006 order, i.e., $54.00 per month until such time as the modified order of support became effective on March 3, 2011.

There is no indication in the testimony or the case file that there were any support arrears under the 2006 order. Since the 2006 order is continued until the effective date of the modification [*5]order on March 3, 2011, there are no support arrears. Based upon this determination, the Court will vacate the money judgment dated December 23, 2011.

With respect to the current award of support, the Court will affirm the support obligation amount of $104.00 per week, effective March 3, 2011. The Court has already noted that it declines at this time to impute the petitioner's salary as a nurse. In addition, at this time the Court declines to impute an amount equal to rental income on the separate living quarters attached to the petitioner's residence. The petitioner may choose to allow her mother to live rent free; however, the fact remains that this is an asset capable of yielding income which could be factored into the petitioner's income.

ORDERED, that the Decision/Order, filed and entered on November 16, 2011, is continued except as herein modified; and it is further

ORDERED, the first decretal paragraph on page 2 of Decision/Order, filed and entered on November 16, 2011, concerning support obligations is vacated and the final decretal paragraph on page 2 of the Decision/Order concerning the judgment of $29,310.00, is vacated; and it is further

ORDERED, that effective March 3, 2011, M. O. is chargeable with the support of A. O. and is possessed of sufficient means and able to earn such means to provide payment in the amount of $104.00 per week to D. B. payable through the Support Collection Unit; and it is further

ORDERED, that retroactive support is computed at $2,646.00 and M. O. is directed to pay the additional sum of $50.00 per week, interest free, in addition to his basic child support award until such time as the retroactive support amount is paid; and it is further

ORDERED, that the Onondaga County Support Collection Unit and the Onondaga County Clerk are directed to modify their records accordingly; and it is

ORDERED, that mail service of this Order on the parties is deemed acceptable.