               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
