        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

157
CAF 14-00143
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF CHAUTAUQUA COUNTY DEPARTMENT
OF HEALTH AND HUMAN SERVICES, ON BEHALF OF
APRIL S. MATTESON, PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BARRY R. MATTESON, RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)


JULIE B. HEWITT, MAYVILLE, FOR PETITIONER-APPELLANT.


     Appeal from an order of the Family Court, Chautauqua County
(Judith S. Claire, J.), entered October 17, 2013 in a proceeding
pursuant to Family Court Act article 4. The order dismissed the
objection of the Chautauqua County Department of Health and Human
Services and affirmed the order of the Support Magistrate.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner commenced this proceeding seeking to
modify an order of support. The Support Magistrate issued an order
determining that neither parent had available health insurance
benefits for the child, that each parent “shall provide health
insurance coverage if it ever becomes available through employment for
the child at a reasonable cost,” and that each parent “shall advise
the Chautauqua County Support Collection Unit of any change respecting
the availability of medical coverage for the child.” The order
further provided that, “if health insurance benefits for the child
become available to either party in the future, the Department of
Social Services or a party may file a modification petition seeking a
Court Order obligating a party to provide health insurance benefits
for the child; a Medical Income Execution shall not [be issued]
without such Court Order.” Petitioner filed an objection to the
order, requesting that the order be modified to delete the language “a
Medical Income Execution shall not [be issued] without such Court
Order.” Family Court dismissed the objection and affirmed the order
of the Support Magistrate, and we now affirm.

     Family Court Act § 416 (c) requires child support orders to
include a provision that, if a parent currently or in the future has
health insurance benefits available that may be extended or obtained
to cover the child, the parent is required to exercise the option of
additional coverage in favor of the child. The term “ ‘[a]vailable
                                 -2-                           157
                                                         CAF 14-00143

health insurance benefits’ ” is defined as health insurance benefits
that are “reasonable in cost,” which in turn is defined as costs that
do not exceed five percent of the combined parental gross income (§
416 [d] [2], [3]). A court, however, may also find that the cost is
not reasonable considering “the circumstances of the case” (§ 416 [d]
[3]). Moreover, the benefits are not “reasonable” in cost if the
“parent’s share of the cost of extending such coverage would reduce
the income of that parent below the self-support reserve” (§ 416 [d]
[3]). In short, Family Court Act § 416 (c) and (d) “implicate[]
judicial involvement” in determining the issue “whether health
insurance benefits are ‘available’ ” (Matter of Chemung County Commr.
of Social Servs. v Beard, 101 AD3d 33, 35).

     CPLR 5241 (b) (2) (i) provides in relevant part that, where the
court “orders the [parent] to provide health insurance benefits for
specified dependents, an execution for medical support enforcement may
. . . be issued by the support collection unit.” CPLR 5241 (b) (2)
(ii) provides in relevant part that, where a child support order
requires the parent “to provide health insurance benefits for
specified dependents, and where the [parent] provides such coverage
and then changes employment, and the new employer provides health care
coverage, an amended execution for medical support enforcement may be
issued by the support collection unit . . . without any return to
court.”

     Petitioner contends that, pursuant to CPLR 5241 (b) (2) (ii), it
may issue a medical income execution to a new employer of the parent
without going to court, and it was therefore error for the Support
Magistrate to include the provision that a medical income execution
“shall not [be issued] without such Court Order.” We conclude that
petitioner’s reliance on CPLR 5241 (b) (2) (ii) is misplaced. A plain
reading of that statute shows that it is not applicable here because
neither parent provided health insurance coverage for the child at the
time the Support Magistrate issued the order. The statute
specifically provides that, “where the [parent] provides such coverage
and then changes employment,” an amended medical income execution may
be issued by petitioner without returning to court (id. [emphasis
added]). Inasmuch as there was no medical income execution that was
issued in this case, there was nothing to “amend.” Contrary to
petitioner’s further contention, a medical income execution can be
issued only where a court has ordered a parent to provide health
insurance benefits, and that has not occurred yet inasmuch as the
Support Magistrate determined that such benefits are not available
(see CPLR 5241 [b] [2] [i]; Matter of Oneida County Dept. of Social
Servs. v Paul S., 41 AD3d 1189, 1190-1191, lv denied 9 NY3d 810).




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
