APRIL 6, 2022 DECISIONS

Matter of Salim v. Freeman, 2021-05278

The mother moved to dismiss the father’s petition for child support on the ground that the Family Court lacked jurisdiction because there was a prior child support order that had been issued by a court in Virginia.  The Support Magistrate granted the mother’s motion, dismissed the petition, and vacated the temporary order of support.  The father filed objections to the Support Magistrate’s order.  In the order appealed from, the Family Court granted the father’s objections and reinstated the temporary order of support.  The mother appealed.  The Second Department reverses.

The record demonstrates that support for the parties’ child was previously awarded to the mother in an order issued by a court within the jurisdiction of the Commonwealth of Virginia prior to the filing of the father’s petition.  Accordingly, the father’s petition was in the nature of a “modification” petition, rather than a “de novo” application (see Matter of Spencer v. Spencer, 10 NY3d at 66, 67; Matter of Nassau County Dept. of Social Servs. v. Ablog, 194 AD3d at 819).  Since the father resides in the Commonwealth of Virginia, that entity retains continuing, exclusive jurisdiction of its child support order, and New York does not have jurisdiction to modify it (see Matter of Spencer v. Spencer, 10 NY3d at 69; Matter of Nassau County Dept. of Social Servs. v. Ablog, 194 AD3d at 819; Matter of Zagarino v. McLean, 154 AD3d 769, 770; Matter of Lorenzana v. Arafiles, 297 AD2d 679, 680).  The Family Court should have denied the father’s objections to the order that granted the mother’s motion to dismiss and vacated a temporary order of support (see Matter of Nassau County Dept. of Social Servs. v. Ablog, 194 AD3d at 819; Matter of Zagarino v. McLean, 154 AD3d at 770; Matter of Lorenzana v. Arafiles, 297 AD2d at 680).