Papers Numbered

Upon the foregoing papers and for the following reasons, the Objections by Petitioner Bertin E. (hereinafter "Father") to an Amended Order of Dismissal, dated February 25, 2016, are denied.

Following a relationship between the parties, the subject Child was born out-of-marriage to Respondent Janis G. (hereinafter "Mother"). Almost ten years later, on March 29, 2005, the Family Court, Kings County (Milsap, S.M.), entered an Order of Support requiring Father to pay child support for the Child in the amount of $100 per week, which amount was eventually increased to $169.50 per week pursuant to yearly automatic Cost of Living Adjustments ("COLA") initiated by the NYC Child Support Collection Unit ("SCU"). By Order dated September 22, 2005, the Family Court (O'Shea, J.) awarded custody of the Child to Mother subject to delineated visitation rights to Father.

By Petition dated November 13, 2014, Father commenced the instant proceeding in Family Court for Modification of the Order of Support, seeking to terminate that Support Order alleging that the Child had eventually gone to reside with him "for [the] last several years." On March 9, 2015, Support Magistrate Jennifer L. Castaldi terminated the Order of Support, on consent, effective November 13, 2014, therewith requiring SCU to adjust any pending arrears accordingly. After calculating all of the Father's payments throughout the years, SCU determined that the arrears owed to the Mother by Father amounted to $2,078.05 as of May 21, 2015. Distressed by the calculations, the Father petitioned the Support Magistrate, by Petition to Adjust Arrears dated August 4, 2015, to appropriately adjust the arrears, claiming that SCU failed to retroactively credit him for some of his child support payments reflecting the fact that the Child has lived with him since "on or about January 2011."

An appearance was scheduled for September 14, 2015, where the Mother appeared pro se [*2]and the Father appeared with his privately-retained counsel, J. J. Borer, Esq., before Magistrate Castaldi. The Magistrate adjourned the case to November 12, 2015 to afford Mother an opportunity to consult with an attorney; however, Mother again appeared pro se, waived counsel and Father appeared with his attorney. A hearing was held at which Mother, Father and the Child testified, at the conclusion of which, the Magistrate reserved decision. By Findings of Fact dated February 25, 2016, the Magistrate found that Father's "claim that he was unable to file [a] petition years prior to 2015 due to medical issues' [wa]s wholly without merit," because he "failed to provide any medical proof to demonstrate physical limitations." The Magistrate further found that "the Child's testimony that he has lived with his Father since 2011 [wa]s disputed by Mother's credible testimony that the subject Child stayed with [her]' and did not move in with [Father] until sometime in 2013, when [he] turned 18" (emphasis in original). Hence, by Order of Dismissal dated February 25, 2016, the Magistrate denied the Petition, setting the arrears owed to the Mother at $6,062.00 and arrears owing to the NYC Department of Social Services ("DSS") at $2,191.98.

On April 6, 2016, Father filed Objections to the Order of Dismissal on the grounds that the Magistrate improperly discounted his and the Child's testimony as not credible, but found the totality of Mother's testimony credible, including that the Child came to live with Father in 2013, and should have retroactively credit his arrears from that date on. He also argues that, although Family Court Act § 451(1) prohibits the adjustment of arrears prior to making of an application, the Magistrate erred by failing to carve out an exception to the statute by adjusting his arrears for the period during which the Child allegedly resided with him as showing good cause or the existence of an injustice. Said Objections have been forwarded to the Undersigned for review. Mother has not filed a rebuttal. The Court disagrees with the Father.

The law is quite clear that the Family Court "shall not reduce or annul child support arrears prior to the making of an application pursuant to this section" by the affected party or payor (Family Court Act § 451[1]; see Matter of Dox v Tynon, 90 NY2d 166, 173-174 [1997]). In other words, Family Court "has no discretion to reduce or cancel arrears of child support which accrue before an application for a downward modification of the child support obligation," regardless of whether the payor had a good cause for having failed to seek modification (see Matter of Cadwell v Cadwell, 124 AD3d 649, 650 [2nd Dept 2015], quoting Grossman v Composto-Longhi, 96 AD2d 1000, 1002; Matter of Wrighton v Wrighton, 23 AD3d 669, 670 [2nd Dept 2005]). The Governor's Approval Memorandum explains that the statute "precludes forgiveness of child support arrears to ensure respondents are not financially rewarded for failing either to pay the order or to seek its modification" (Matter of O'Connor v Curcio, 281 AD2d 100, 104 [2nd Dept 2001], quoting 1986 NY Legis Ann, at 361).

Applying these legal principles to the matter at bar, Father's Objections must be denied. The record reveals that the Order of Support was terminated effective November 13, 2014 — the filing date of Father's Petition — and the Magistrate directed SCU to adjust the arrears back to that date. Father filed the instant Petition to adjust arrears and, at the hearing, Father, Mother and the Child provided the Magistrate with conflicting testimony regarding the period in which the Child commenced living full time with Father. While Father and son testified that they have resided together since January 2011, Mother denied the same stating that the Child commenced living with him in 2013. The Magistrate declined to credit the Father or Child's testimony, nor did she credit Father's testimony that uncorroborated medical issues barred him from filing a Petition for almost four years prior to the accumulation of arrears. Great deference should be given to these credibility determinations by the Support Magistrate, who is in the best position to assess the credibility of the witnesses and the evidence proffered (see Matter of Manocchio v Manocchio, 16 AD3d 1126 [2005]; Matter of Department of Social Servs. v Henderson, 269 AD2d 395 [2000]).

Even if Father has successfully proven that his alleged physical limitations prevented him from filing a Petition, Family Court Act § 451(1) would still prohibit the Magistrate from adjusting arrears. From the time the Child allegedly began to live with him in 2011, Father had a [*3]full and fair opportunity during almost four years to apply to the Court for a modification or termination of his child support obligation and is responsible for any arrears that accrued before he made his November application (see Galotti v Galotti, 251 AD2d 285, 285-286 [2nd Dept. 1998]). However, Father just failed to document a medical disability lasting that long period of time, or apply to the Court before the arrears accrued (see id.; Henry v Henry, 272 AD2d 520, 521 [2nd Dept. 2000]; Matter of Rubenstein v Yosef, 198 AD2d 359, 360 [2nd Dept 1994]).

Nor do the cases relied upon by Father call for a different conclusion. Although the majority of case law prohibits the reduction or annulment of child support arrears, those rare cases mentioned by Father involved clearly egregious circumstances where the payor respondents suffered "grievous injustice[s]" excusing them from filing a modification or termination petition prior to the accumulation of arrears (see e.g. Matter of Commissioner of Social Servs. of Ressenslaer County v Faresta,11 AD3d 750, 752 [3rd Dept 2004] [payor demonstrated inability to pay arrears based on indigence and receipt of public assistance during relevant period]; Matter of Reynolds v Oster, 192 AD2d 794 [3rd Dept 1993] [father documented serious back injury and business reverses which prevented employment]; Matter of Commissioner of Social Servs. v Grant, 154 Misc 2d 571 [NY Fam Ct 1992] [payor suffered severe emotional disability and hospitalization for six months barring him to apply for modification]). This is not one of those rare cases where the overly strict application of the governing statute would result in a "grievous injustice" to Father (id.; see Matter of Commissioner of Social Servs. v Luis Alonso G., 7 AD3d 388 [1st Dept 2004]).

Based on the record presented, the Court finds that Father has not demonstrated any legal basis to "reduce or annul child support arrears" prior to its accumulation, and accordingly, his Objections are hereby denied in their entirety. This constitutes the decision and order of the Court.