SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

802 

CAF 11-01829 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ. 

 

IN THE MATTER OF THOMAS DENOTO, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

SARAH DENOTO, RESPONDENT-APPELLANT.

 

WILLIAM J. SEDOR, ROCHESTER, FOR RESPONDENT-APPELLANT. 

 

Appeal from an order of the Family Court, Monroe County (Joseph

G. Nesser, J.), entered January 24, 2011 in a proceeding pursuant to

Family Court Act article 4. The order denied and dismissed

respondent’s objections to an order of the Support Magistrate. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner father commenced this proceeding alleging

that respondent mother owed, inter alia, $30,000 in arrears for child

support. The arrears had been established by an order dated October

8, 2003 entered upon the consent of the parties, and were “held in

abeyance until further proceedings.” The mother sought, inter alia,

to vacate the $30,000 in arrears on the ground that, at the time of

the agreement, she was addicted to crack cocaine and was not competent

to consent to the arrears. Following a hearing, the Support

Magistrate ordered that the hold on the $30,000 arrears balance was to

be removed. The mother now appeals from an order of Family Court that

“denied and dismissed” her objections to the Support Magistrate’s

order.

The mother contends that the Support Magistrate did not have

jurisdiction under the Family Court Act or the parties’ judgment of

divorce to award arrears. Lack of jurisdiction is a ground upon which

an order may be vacated (see CPLR 5015 [a] [4]), and “ ‘a court’s lack

of subject matter jurisdiction may not be waived and may, in fact, be

raised at any time’ ” (Guideone Specialty Mut. Ins. Co. v State Ins.

Fund, 94 AD3d 700, ___; see Green v State of New York, 90 AD3d 1577,

1578, lv dismissed in part and denied in part 18 NY3d 901; Matter of

Hyatt Legal Servs., 97 AD2d 983). Nevertheless, we cannot review the

mother’s contention because the record is insufficient to enable us to

do so (see Matter of Kraemer v Kalish, 11 AD3d 898, 899). 

The mother further contends that the award of arrears is invalid

and unenforceable because, inter alia, the consent order does not

comply with Family Court Act § 413 (1) (h). We conclude that her
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CAF 11-01829 

contention is without merit because section 413 (1) (h) is not

applicable here, inasmuch as the mother seeks to vacate only that part

of the order establishing arrears and not child support. The mother’s

additional contentions as to why the October 2003 order is invalid,

unenforceable, and unconscionable are not properly before us because

she raises those contentions for the first time on appeal (see

generally CPLR 5015; Matter of Chomik v Sypniak, 70 AD3d 1336, 1336-

1337). 

Finally, to the extent that the mother preserved for our review

her contention that the court erred in giving deference to the order

of the Support Magistrate, we conclude that her contention lacks

merit. Indeed, “ ‘[t]he greatest deference should be given to the

decision of the [Support Magistrate,] who is in the best position to

assess the credibility of the witnesses and the evidence proffered’ ”

(Matter of Niagara County Dept. of Social Servs. v Hueber, 89 AD3d

1433, 1434, lv denied 18 NY3d 805). Here, the court properly deferred

to the Support Magistrate’s findings of fact and credibility

determinations. 

Entered: June 15, 2012 Frances E. Cafarell

Clerk of the Court