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

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In the Matter of a Proceeding - for Support under Article IV of the Family Court Act,

DECISION AND ORDER ELENA SVENSON,

Petitioner, : (After filing of Objections)

- against - • :Docket Number F-28901-08/10A/B/C

MICHAEL KRICHEVSKY, :Objection 41 & 2 on Supp "A" :Objection #2 & 3 on SUpp "B"

Respondent. :Objection *1 on Supp "C"

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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 monthly3 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.

- 2 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."

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 lTeRTëdfiUëfrt'Thhat&föf 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.

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$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.

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(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

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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 2½D3d 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 V

Mayeri, 279 AD2d 473 [2d Dept 2001]; 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 IIBff are set aside pending the decision on Respondent's omnibus motion.

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

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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 Fasoné 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.

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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

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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

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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

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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.

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