In a February 13, 2013 decision. the Second Department in Braun v. Abenanti directed a father to pay his child’s orthodontist directly and also directed that the mother’s petition for an upward modification of child support be granted.
Doing so, the Second Department reversed Family Court, Suffolk County Judge Richard Hoffmann, who in turn had denied the mother’s objections to an order of Support Magistrate Isabel Buse. The Magistrate’s order, after a hearing, granted the mother’s petition to enforce a 2001 support order only to the extent of directing the father to reimburse the mother the $20 she had paid to the orthodontist. Magistrate Buse also denied the mother’s petition for an upward modification of that decade-old support order.
As for the orthodontia, the 2001 order directed the father to pay 100% of “future reasonable health care expenses not covered by insurance.” The child had orthodontia expenses of $1,329 that were not covered by insurance, of which the mother could only afford to pay $20.
The Second Department acknowledged that as the mother demonstrated that she paid $20 of the child’s unreimbursed orthodontia expenses, the Family Court’s award of only $20 to the mother was properly limited to “those sums for which the mother submitted proof of actual payment to the third-party medical providers.”
However, the appellate court noted, Family Court Act § 413(1)(c)(5)(v) authorizes the Family Court to direct the payment of reasonable health care expenses unreimbursed by insurance which remain unpaid directly to the health care provider.
To insure that the child receives prompt and adequate health care, in addition to awarding the sum of $20 directly to the mother, the Family Court should have directed the father to pay the sum of $1,309 which remained outstanding directly to the child’s orthodontist.
Moreover, the Second Department concluded that the mother did meet her burden and demonstrated an entitlement to an upward modification of the father’s child support obligation.
Support Magistrate Buse had concluded that the mother failed to establish grounds for an upward modification of the father’s child support obligation, applying a test that the mother must demonstrate that her income plus the current child support award were not sufficient to meet the child’s needs.
However, the Second Department noted:
where a party is seeking to modify a prior court order of child support, which is not based on an agreement between the parties, the movant need only demonstrate a substantial change in circumstances, defined as a change of circumstances “sufficient to warrant a modification.”
Here, the significant increase in the father’s income over the last decade, and the increase in the child’s expenses since the original order of support was entered, warranted a new determination of child support pursuant to the Child Support Standards Act.
The mother represented herself on the appeal.