The Exception to the Rule

SOSA-L1NTNER, J.:

Before the Court is an Objection by Carisa Carlton (hereinafter "Petitioner") asserting that Support Magistrate Ann Marie Loughlin erred as a matter of law in denying that part of the Petitioner's Violation Petition which sought to enforce Steven Heller's (hereinafter "Respondent) support obligation for the months of April 2009 and May 2009. The Petitioner maintains that there are no exceptions to the general rule that precludes annulments of child support arrears. FCA § 451. The Respondent rebuts that there is a case law bacM framework for exceptions to the general rule and that his situation merits an exception. He asserts that the reason he did not pay support for April and May 2009 is because the Petitioner's violations of several court orders forced him to pursue her across three countries and forced him to initiate legal actions against her in several jurisdictions.

Section 451 of the Family Court Act is clear that the court shall not reduce or annul child support arrears. However, the Courts have slowly moved towards creating a case law exception

to Section 451. In the Matter of Commissioner of Social Services v. Luis Alonso, 7 A.D.3d 388,

although the First Dept overturned the lower court's vacatur of arrears, the Court acknowledged an exception to Section 451 based on rare circumstances. "This is not one of those rare circumstances where an overly strict application of Section 451 of the FCA, which prohibits reductions of accrued child support arrears, would result in grievous injustice to respondent..."

The present matter began in Singapore in November 2008 when the Respondent turned to the Court for help because he had been denied access to the Subject Child. Eventually the Singapore Court issued an Order precluding the Petitioner from taking the child outside of Singapore. Nevertheless, the Singapore Court considered granting her permission to take the child to Bali on vacation upon the posting of a $10,000 bond. She left with the child without posting bond and did not return. The Respondent pursued them from Singapore to Bali and then to New York. The Respondent located them in New York and on April 3, 2009 the Hon. Laura E. Drager granted an Order to Show Cause giving the Respondent temporary custody of the child. The Petitioner failed to turn over the child and the Respondent was directed by New York Supreme Court to obtain an order of custody from Singapore in order to continue the matter under emergency jurisdiction status. On April 14, 2009 the Respondent was issued an order of custody from the Singapore Court but by this time the Petitioner had taken the child to Indiana. Through a second Order to Show Cause brought before Judge Drager the Respondent was granted his request for law enforcement assistance in securing the child. The Indiana Sheriff's office honored that request and the Respondent returned the child to New York where he had to defend himself against Petitioner's cross motion challenging jurisdiction. On April 29^th Judge Drager directed the Respondent to return the child to Singapore which he did. Litigation continued in Singapore while the Respondent enrolled the child in school and generally cared for the child. Upon the completion of the custody trial the Respondent was awarded custody of the child and the Petitioner was given limited access. On June 3' the Respondent filed for termination of the New York support order.

The question is whether the present situation constitutes a "rare circumstance" and whether ordering the payment of arrears would result in "grievous injustice" to the Respondent. Alonso, id This Court finds that the Magistrate did not abuse her discretion by annulling the arrears. Section 451 was partially designed to protect deserving parents and not to unjustly enrich parents who act outside of the law. It is undisputed that the Respondent paid his support in full up until April 3, 2009 when the Petitioner's actions led the Respondent on a worldwide searchfor the child and forced him to engage in legal battles on several fronts. Taking these extraordinary circumstances into consideration the Magistrate's finding that the Respondent had good cause for not filing a termination petition in April or May is not an abuse of her discretion as the trier of fact. In addition the Magistrate did not err in law because unlike the Petitioner's position that child support arrears can never be annulled the First Department in Alonzo acknowledged that under rare circumstances the arrears can and should be annulled.