At a Term of the Family Court of the State of New York, held in and for the County of Kings at 330

Jay Street, Brooklyn, New York, 18 ' day of October 2011.

PRESIDING: HON. PAULA J. HEPNER Acting Justice of the Supreme Court ---------------------------x In the Matter of a Proceeding for Support under Article IV of the Family Court Act, DECISION AND ORDER ELENA SVENSON, Petitioner, - against MICHAEL KRICHEVSKY, Respondent. : (After filing of Objections) :Docket Number F-28901-08/10A/B/C :Objection 41 & 2 on Supp "A" :Objection #2 & 3 on SUpp "B" :Objection *1 on Supp "C" x -

NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER A COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS, FOR CONTEMPT OF COURT. NOTICE: PURSUANT TO 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 MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 35 DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.-

The parties have engaged in continuous litigation in Kings County Family Court before Support Magistrate FaSOne

since 2008 and

have had a lengthy history before the undersigned.' On February 3, 2010, 2 the Support Magistrate issued a Final Order of ,Support and directed the Respondent to pay $2,045.00 monthly 3 toward the support of the subject child, David Svenson (d.o.b. 8/14/94), and set the arrears from the date Of filing at $31,599.42. The Respondent was directed to enroll the child in his health insurance plan and authorized reimbursement of Petitioner's Counsel fees. Less than four months after the entry of the Final Order of Support, on April 22, 2010, Respondent filed Supplemental

"A"

1 This is the fourth objection before the undersigned. The first objection was filed by the Petitioner on August 18, 2009 to an interim order of support. On October 9, 2009, Petitioner withdrew the Objection. The second objection was filed by the Respondent on April 2, 2010 to the Final Order of Support issued by support Magistrate Fasone on February 3, 2010. The undersigned denied the Objection on procedural grounds due to the untimely filing of the Objection on June 2, 2010. The third Objection was filed by the Respondent on August 9, 2010 to the Support Magistrate's verbal refusal to recuse himself. The Objection was denied on procedural grounds as the Objection was not ripe for review.

O that same date, the Support Magistrate denied the Respondent's motion filed on September 9, 2009 to quash the subpoenas that Petitioner served on third parties and to pay all counsel fees related to the motion. In the support Magistrate's order on the motion, he denied the application as "unnecessary as the court rules that objections to admission of proffered documents not previously disclosed to opposing counsel will be considered at point of trial."
2

The Support Magistrate did not deviate from the full amount required under the Child support Standards Act. The Petitioner's adjusted gross income was determined to be $20,800.00 and the Respondent's adjusted gross income $145,145.40. The combined parental income was determined to be $165,945.40 of which the Petitioner's pro rata share was calculated at 13% and the Respondent's pro rata share at 87%. Pursuant to the Child Support Standards Act, the Support Magistrate determined- the annual child support obligation for the parties' child was 17% of their adjusted gross income or $22,100.00 for the combined income up to $130,000.00. The Respondent's share of the first $130,000.00 is $1,602.25 monthly. The Support Magistrate applied the statutory percentage of 17% to the income over $130,000.00, which was $35,945.40. The Respondent's pro rata share was $443.03 monthly. The Respondent's share for the income below $130,000($1,602.25) when combined with lTeRTdfiUfrt'Thhat&ff the- income above $130,000 - 00, ($443.03) 1 resulted. in a monthly order of $2045.28 for the Respondent. -

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seeking a downward modification on the grounds that he lost his job, could not afford the health insurance premium and was disputing the amount of arrears owed. On June 21, 2010, Petitioner filed Supplemental "B" alleging that Respondent violated the Order of Support that directed him to pay $2,045.00 per month and Respondent failed to maintain the subject child on his health insurance. Subsequent motion practice ensued. -

On July 26, 2010, Respondent filed an Order to Show Cause (filed as Supplemental "C") for a Temporary Restraining Order to stay the current Order of Support and for the entry of an Order of Support in the amount of $315.90 per month based upon his receipt of unemployment benefits. On August 5, 2010, Support Magistrate Fasone declined to sign the Order to Show Cause and dismissed Supplemental "C." His Findings of Fact indicated that he did not sign the Order to Show Cause because the issuance of a temporary restraining order was beyond the scope of his authority. The case continued with multiple appearance dates on August 12, 2010, November 18, 2010, March 16, 2011, April 13, 2011, June 1, 2011' and ultimately concluded on July 6, 2011. On July 6, 2011, the Support Magistrate dismissed supplemental "A," Respondent's downward modification petition, because the Respondent "made it impossible to conduct any meaningful inquiry into the totality of his financial circumstances" and entered a money judgment on supplemental "B," Petitioner's violation petition, in the amount of

4 me Order of Support remained in effect throughout the pendency of the proceeding with the exception of the modification entered on Supplemental "A" to $298.00 monthly entered on June 1, 2011.

$21,915.34. On July 5, 2011, one day prior to the last hearing date, Respondent filed an "Objection, Notice of Motion to Dismiss and for Summary Judgment" on Supplementals "A" and 11 B." 5 No answering

papers were ever filed. The papers were recorded as an Objection and sent to the undersigned for review. The "Objection, Notice of Motion to Dismiss and for Summary Judgment"' essentially argues the following: (1) The Final Order of Support entered on February 25, 2010 is void and the subsequent decision on the Objection of the undersigned entered on June 2, 2010 is void. (2) Supplemental "B" should be dismissed. (3) Respondent seeks an award of costs, disbursements and reasonable attorney's fees.

5 Attached to the "Objection, Notice of Motion to dismiss, and for Summary Judgment" is an affidavit of service indicating that the Semyon Furmanov, a person over the age of 18 and not a party to the action, mailed a copy to Elena Svenson at her residence.

6 Affixed to the Objection are the following Exhibits. Exhibit A Objection to Reply Affidavit of Rebuttal dated May 15, 2010, copy of envelope from NYS Child support Processing center, notice from NYS Child Support Processing center dated February 17, 2010, undated transcript of proceedings before Support Magistrate Fasone, undated Affidavit of Merit from action in Kings county Supreme court between Petitioner, Respondent, Victoria Edelstein and Boris Kotylar; undated transcript of proceedings before Support Magistrate Fasone, page 5 of the Final order of Support without clerk's endorsement, page 5 of the Final Order of Support with clerk's endorsement, Decision on Objection entered by undersigned on June 2, 2010; Exhibit B: summons for Elena Svenson under docket F-28901-08/10A to appear on May 13, 2010, Respondent's modification petition; Exhibit C: Yonatan Levoritz, Esq.'s e-courts web family webpage for appearances; Exhibit D: Petitioner's violation petition, order of Support entered on February 3, 2010, Division of Child Support Enforcement statement from May 1, 2010 through June 16, 2010, verified Answer! Jury Trial Demanded dated September 21, 2010, Respondent's First Set of Interrogatories fon..Response.byPetitioner dated. September-.2.3. r .-2.010, FirstRespondent!s Combined Demands for Discovery dated September 24, 201.0; Exhibit E: Affidavit of Witness by Semyon Furmaov dated July 1, 2011.

rd

(4) Respondent seeks leave to renew and reargue his recusal motion to disqualify the Support Magistrate from his case (5) Respondent asserts he is entitled to Summary Judgment on Supplemental "B" because no questions - of law or fact exist. (6) Respondent seeks to be relieved from the underlying order of support pursuant to Civil Practice Law and Rules 5015 (a) because of lack of jurisdiction. Upon further inspection, it appears that Respondent's motion is actually an omnibus motion rather than an Objection and was mistitled. "Objections are the equivalent of appellate review, and this Court [may not] consider matters which were not brought before the Support Magistrate or preserved by proper objection"
(,TAB
V

JIB,

10 Misc3d 446 [Fam Ct Ulster Couhty 20051; see also Rzeznieniewska Bugnacki v Bugr.zacki, 51 AD3d 1029 [2d Dept 20081; Green v Wron, 151

Misc2d- 9 [Fain Ct New York County 1991]).. While the record seems to reflect that Support Magistrate Fasone attempted to curtail the motion practice, the motion should have been heard by Support Magistrate Fasone during the pendency of the hearing instead of being referred to the undersigned. However, since the Support Magistrate does not have the authority to revisit the undersigned's decision of June 2, 2010, and in the interest of judicial economy, the undersigned will entertain solely #1 of the Respondent's motion. All other matters in this omnibus motion are respectfully referred to Support Magistrate Fasone for decision. -

Respondent seeks to argue that undersigned's denial of his

Objection entered on June 2, 2010 based upon the untimeliness of filing is void. Essentially, Respondent asserts that his position 5

is based upon newly discovered evidence. Respondent argues that he never received a copy of the Support Magistrate's decision from February 3, 2010 in the mail. He seeks to demonstrate that there is a discrepancy between the Order in the Family Court record and a copy of the Order he reviewed that was annexed as an exhibit in the Civil Court action brought against him by the Petitioner. The Order in the Family Court record contains the date stamp of February 25, 2010, bears the initials of the Part Clerk, and is endorsed that it was mailed to "P. R, and P attny." The exhibit in the Civil Court action lacks these markings. The exhibit in the Civil Court is not a certified copy of the Family Court Order. While it is stamped by the Clerk of Civil Court, Nancy Sunshine, the Civil Court cannot certify the Family Court's records. There are innumerable ways that an incomplete copy of an Order can be obtained. Therefore, the undersigned's decision of June 2, 2010 is not void and that argument is denied.' On August 18, 2011, the Respondent filed an actual "Objection" to Support Magistrate Fasone's final order and findings of fact entered on July 6, 2011. No rebuttal was received. In his Objection, Respondent argues that he did not

Furthermore, the record reflects that the Respondent has taken an appeal to the Appellate Division, Second Department, from the court's June 2, 2010 decision. Attached to the "Objection, Notice of Motion to dismiss, and for -Summary Judgment" is an affidavit ..of-service . indicating that the Semyon.. Furmanov, a person over the age of 18 and not a party to the action, mailed a copy to Elena Svenson at her residence on August 12, 2011.

consent to have the case adjudicated before Support Magistrate Fasone and that Support Magistrate Fasone is acting in a corrupt and punitive way" and is not following the law. He requests that all orders be vacated, Supplemental "B" be dismissed, and Petitioner be sanctioned for frivolous conduct. The Orders on Supplementals "A" and "B" were nailed on July 11, 2011. Since the Objection was filed on August 18, 2011, more than thirty five days from the date of mailing, the Objection is deemed untimely (Family Court Act 439(e); Russell v Gittens, 81 AD3d 652 [2d Dept 2011]; Sanabria v Medina, 69 AD3d 947 [2d Dept 20101; Hodges v Hodges, 40 2D3d 639 [2d Dept 2007]; Mazzilli v Mazzilli, 17 AD3d 680 [2d Dept 2005]; Pedone v Corpes, 24 AD3d 559 [2d Dept 2005]; Herman v Herman, 11 AD3d 536 [2d Dept 2004]; Chambers v Chambers, 305 AD2d 672, 673 [2d Dept 20031; Mayeri Mayeri, 279 AD2d 473 [2d Dept 2001];
V

Werner v Werner, 130 AD2d 754

[2d Dept 1987]). Therefore, the Objection to the Court's orders of July 6, 2010 is denied on procedural grounds. 9 Currently, this case is a procedural quagmire with numerous notions filed on different supplemental petitions.' To enable the

Furthermore, the Objection is moot since the final orders on Supplemental "A"and Supplemental are set aside pending the decision on Respondent's omnibus motion.
IIBff

On July 5, 2010, Respondent filed a motion for the Support Magistrate to recuse himself because he"reasonably believes that Support Magistrate Fasone is biased and prejudiced against him." There was no written decision on this motion. On July 12, - 2010, Respondent filed a cfdths motion for sanctions for a frivolous motion to hold Petitioner and her attorney in contempt. This was labeled as Motion #1 on Supplemental "c." Support Magistrate Fasone noted that it should have been filed on Supplemental "B" and was identical to Motion #1 on Supplemental "B." Support Magistrate Fasone entered an Order denying the motion on July 26, 2010. It was also denied as Motion #2 on Supplemental "c" on August 12, 2010. On July 12, 2010, Respondent filed a motion to have a court reporter 7

Support Magistrate to decide the omnibus motion in an orderly way, accordingly it is

ORDERED

that the Objection filed on August 18, 2011 is denied;

and it is further

ORDERED

that the "Objection, Notice of Motion to Dismiss and

for Summary Judgment" filed on July 5, 2011 be undocketed as an Objection and calendared as an omnibus motion before Support Magistrate Fason for him to decide; and it is further

ORDERED

that should the Petitioner submit answering papers,

any answering papers are to be subniitted by November 9, 2011; and it is further

present. This was labeled as Motion #2 on Supplemental 'c;" but should have been filed as a motion under Supplementals "A" and "B" as Supplemental "c" was not yet filed. However, Support Magistrate Fasone denied Respondent's application on July 13, 2010 as Motion #1 on supplemental "B." This is inconsistent with Support Magistrate Fasone's order dated July 26, 2010 indicating that Motion #1 on Supplemental "B" and Motion #1 on Supplemental "c" were Respondent's application for sanctions. The Order dated July 13, 2010 was mistaken when it says that Respondent's application for a court reporter was filed on July 26, 2010 and decided on July 13, 2010, Support Magistrate Fasone denied a motion seeking to void a child support order obtained by fraud and to issue a restraining order filed on August 9, 2010. He denied this as Motion 0 on the underlying support docket of F-28901-08 on August 12, 2010. The court could not find a record of the August 9th motion and it is unclear why any Order would be entered on the underlying support petition when only supplementals "A," and "B" were active. It appears this sought the same relief as the Order to Show cause filed on July 26, 2010. There isno indication--from--the - court file-that--any-of these orders-were mailed to the Petitioner or the Respondent.
ni Eel

ORDERED that Support Magistrate Fasone's decision on

Supplemental "A" is set aside; and it is further

ORDERED that Support Magistrate Fasone's decision on

Supplemental "B" is set aside; and it is further

ORDERED that Support Magistrate Fasone provide a detailed

written decision on the "Objection, Notice of Motion to Dismiss and for Summary Judgment"; and it is further

ORDERED should Support Magistrate Fasone reach the same

decision as he did on Supplemental "A" on July 6, 2011, he is to provide detailed written Findings of Fact td explain how he reached the result he did; and it is further

ORDERED that Supplemental "C" was appropriately dismissed as a

Supplemental petition, but the Clerk is directed to ref ile it as a motion under Supplemental "A," and the Support Magistrate is directed to proceed under that docket; and it is further

ORDERED that Support Magistrate Fasone explain the basis of

his entry of a modification of the child support order on June 1, 2011 to $298.00 per month under Supplemental "A," how he arrived at that amount, and whether it was a temporary modification; and it is further

ORDERED

should Support Magistrate Fasone reach the same

decision as he did on Supplemental "B" on July 6, 2011, he is to provide detailed written Findings of Fact to explain how he reached the result he did and how he arrived at the amount for the money judgment; and it is further

ORDERED

should Support Magistrate issue new decisions on

Supplementals "A" and "B" after entertaining Respondent's motion, he should issue final orders and detailed:written findings of fact; and it is further

ORDERED

that in addition to deciding the Respondent's

application for leave to renew and reargue his motion to recuse, the Support Magistrate is to include a written decision on Respondent's initial motion to recuse from July 26, 2010 to complete the record so it will be clear why he did not grant the application; and it is further

iI1

ORDERED that Support Magistrate Fasone is to review his record

to make sure that motions were filed on appropriate supplementals and that all motions have been decided; and it is further

ORDERED that Respondent is to refrain from filing any motion

papers to the undersigned's attention when appearing before the Support Magistrate; and it is further

ORDERED that Respondent shall not file any new motions until

all of these outstanding issues have been resolved and the Support Magistrate has ruled on each one. Upon receipt of a final decision determining each of these outstanding issues, Respondent may timely file an objection should he feel aggrieved by the result; and it is further

ORDERED that all decisions on motions, Final Orders and

Findings of Fact be mailed to the Petitioner and Respondent upon completion; and it is further

11

ORDERED that oral argument on the motion will be held before

Support Magistrate Fasone on December 12, 2011 at 2 PM and parties are directed to appear on that date; and it is further

ORDERED that Petitioner and Respondent are to submit any

documents for consideration to the Support Magistrate ten days in

advance of the hearing date; and it is further

ORDERED that any documents not received in advance will not be

considered; and it is further

ORDERED that each party will have 15 minutes to present their

oral argument; and it is further

ORDERED that Petitioner and Respondent are to be prepared to

proceed on that date and should they choose to be represented by Counsel, Petitioner, Respondent and Counsel are to be prepared to proceed on that date; and it is further

ORDERED that no adjournments are to be granted by the Support

12

Magistrate in the absence of extraordinary circumstances; and it is further

ORDERED that all Counsel of record are to receive notice of this decision; and it is further

ORDERED that the Court is to notify Petitioner, Respondent, Support Magistrate Fasone and the Support Collection Unit of its decision.

13