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In re Ogborn6/17/1999
Appeals (1) from an order of the Family Court of Delaware County (Estes, J.), entered June 30, 1998, which, inter alia, granted respondent's objections to the Hearing Examiner's findings with regard to the amount of child support petitioner was required to pay, and (2) from an order of said court (Stiles, H.E.), entered July 21, 1998, which dismissed petitioner's application, in a proceeding pursuant to Family Court Act article 4, for a downward modification of a prior child support order.
A March 1995 Family Court order required petitioner to pay $90.44 per week for the support of the parties' four children. On December 12, 1997, petitioner filed a petition seeking a downward modification of that order. The matter came on for a hearing and the Hearing Examiner found that petitioner had demonstrated changed circumstances. By order entered March 10, 1998, the Hearing Examiner reduced petitioner's support obligation to $50 per month based upon petitioner's disability income of $170 per week.
Respondent thereafter filed objections to the Hearing Examiner's determination. By order entered June 30, 1998, Family Court sustained respondent's objections, finding that the support obligation of $50 per month was unjust and inappropriate in light of petitioner's income and his substantial assets. The matter was therefore remitted to the Hearing Examiner for new findings determining the appropriate child support obligation and requiring petitioner to reinvest or liquidate his assets in order to provide for his children. Upon remittal, the Hearing Examiner concluded that, taking into account the assets identified in Family Court's order, petitioner had "sufficient income, income producing assets, and non-income producing resources to be able to pay child support at the rate of $90.44 per week as previously ordered". The Hearing Examiner accordingly dismissed the modification petition by order entered July 21, 1998. Family Court denied respondent's ensuing objections and respondent now appeals from Family Court's June 30, 1998 order and the Hearing Examiner's July 21, 1998 order.
We affirm. Initially, we reject the contention that Family Court erred in granting respondent two extensions of time for filing her objections to the Hearing Examiner's March 10, 1998 order. Unlike the nonwaivable and jurisdictional time period for filing a notice of appeal (see, CPLR 5513 ; Matter of Haverstraw Park v Runcible Props., 33 NY2d 637), the courts need not require strict adherence to the deadlines of Family Court Act ยง 439 (e) (see, Matter of Onondaga County Commr. of Social Servs. [Chakamda G.] v Joe W.C., 233 AD2d 908; Matter of Corcoran v Stuart, 215 AD2d 340). In view of the fact that respondent was unrepresented in the proceedings before the Hearing Examiner and the counsel she subsequently retained needed the hearing transcript in order to prepare objections and also that respondent moved for the first extension prior to the expiration of the statutory time for filing objections, we perceive no abuse of discretion (see, Matter of Onondaga County Commr. of Social Servs. [Chakamda G.] v Joe W.C., supra). In any event, because the record contains no evidence as to the date when the Hearing Examiner's order and notice of entry were mailed to respondent, petitioner has failed to establish that respondent's objections were untimely filed (see, Matter of Canfield v Canfield, 185 AD2d 611; accord, Matter of Commissioner of Social Servs. [Obremski] v Dietrich, 208 AD2d 474).
Next, we are unpersuaded that Family Court erred in its Conclusion that petitioner's nonincome-producing assets could be considered in determining whether petitioner had established a sufficient basis for a downward
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