FAMILY COURT OF THE STATE OF NEW YORK
CITY OF NEW YORK, COUNTY OF QUEENS
Family Court Act ("FCA") Section 439 (a) empowers Support Magistrates to "hear, determine and grant any relief within the powers of the court" in proceedings properly before them. FCASection 439 (e) provides that the Support Magistrate's determination "shall include findings of fact and a final order." The parties are permitted by statute to submit "specific written objections" to the final order for "review" by a Family Court Judge.
The Family Court Judge's "review" is a narrow one. It is the Support Magistrate, and not the reviewing Judge, who was present at the evidentiary hearing and was, therefore, uniquely able to evaluate both the evidence and the credibility and demeanor of witnesses prior to making an order. Given the above, the scope of the Family Court Judge's "review" is confined to an inquiry as to whether the Support Magistrate has made the necessary Findings of Fact and an Order, and upon review of the record, whether there is a reasonable basis for the Support Magistrate's order.
The relevant portions of the record reflect the following information which was obtained from the court file, including the findings of fact as well as the audio recording of the proceedings. On November 21, 2012, Petitioner-Mother filed a modification petition (Supplement "I") seeking to have the order of support *1 "decreased, terminated and suspended, a refund of overpayment, that the arrears be corrected and adjusted, that the method of payment be changed and that she be made the payee". Process was issued and the matter was adjourned to January 7, 2013 before Support Magistrate .
On January 7, 2013, Petitioner-Mother's modification petition (Supplement "1"), as well as other child support matters*2 involving the parties were before Support Magistrate . With respect to Petitioner-Mother's modification petition (Supplement "I") Petitioner-Mother appeared and waived counsel and Respondent-Father appeared with counsel. Petitioner-Mother did not have proof of service and Respondent-Father's counsel represented that Respondent-Father had not been served and would not accept service in court. Petitioner-Mother was directed to personally serve Respondent-Father and all matters were adjourned to April2 and 3, 2013 before Support Magistrate .
On April2, 2013, Petitioner-Mother's modification petition (Supplement "I") as well as the other child support matters involving the parties were before Support Magistrate . Counsel for Petitioner-Mother*3 appeared and Respondent-Father and his counsel appeared. There was no appearance by Petitioner-Mother. Counsel for Petitioner-Mother represented that Petitioner-Mother was presently in New York Hospital due to vomiting and headaches and was requesting an adjournment of the proceedings for that day as well as for the next day, April 3 ,2013. The Support Magistrate noted that the Clerk's Office had received a phone call from Petitioner-Mother stating she was in the hospital without any indication why she was there and Petitioner-Mother was directed to have the hospital fax paperwork indicating the nature of her illness, which paperwork had not yet been received by the court. The Support Magistrate noted that since the last court date, Petitioner-Mother had twice attempted to change the instant court date and the next day's as well claiming that these dates were no longer good for her. The Support Magistrate noted that Petitioner-Mother had written a letter and had attempted to file an order to show cause to change the court dates, without the knowledge of her court appointed counsel and her requests for an adjournment were denied. The Support Magistrate directed Petitioner-Mother to appear in court as scheduled on April 3, 2013 and to provide all of her medical records indicating her prognosis, diagnosis and her discharge papers to the court. All matters were adjourned to April 3, 2013 before Support Magistrate .
On April 3, 2013, Petitioner-Mother's modification petition (Supplement "I'') as well as the parties' other child support matters were before Support Magistrate . With respect to the violation of support matter, Petitioner-Mother and counsel appeared and Respondent Father and counsel appeared before Support Magistrate . The violation of support matter was settled pursuant to an agreement reached between the parties, without prejudice to Respondent's right to seek counsel fees. Counsel for Petitioner-Mother was relieved from his representation of Petitioner-Mother. With respect to the modification petition (Supplement "I"), issue was joined and service was deemed complete pursuant to Respondent-Father's acknowledgment of service. Petitioner-Mother requested an adjournment to return with counsel to represent her on her modification petition and Respondent-Father's motion for counsel fees. Both parties were directed to return with financial disclosure affidavits, proof of income and all bank statements for the past six months. The matters were adjourned to April 30, 2013 with a "final" marking against Petitioner-Mother.
On April 30, 2013, Petitioner-Mother's modification petition (Supplement "I") and Respondent-Father's motion for counsel fees were before Support Magistrate . Respondent-Father and counsel appeared before Support Magistrate . There was no appearance by Petitioner-Mother when the case was called at 11:19 a.m. The court was in receipt of a fax from Petitioner-Mother requesting an adjournment due to "severe headaches and neck and upper back muscle cramping" together with "Exitcare Patient Information" documentation from New York Hospital Queens dated April 30, 2013 excusing her from work and physical activity through May 1, 2013 and reflecting a discharge time of 9:21 a.m. The matters were adjourned to May 13, 2013 at 9 a.m. time certain with the "final" marking against Petitioner-Mother continued and with the court to notify Petitioner-Mother.*4
On May 13, 2013, Petitioner-Mother's modification petition (Supplement "I") and Respondent-Father's motion for counsel fees were before Support Magistrate . Respondent-Father and counsel appeared before Support Magistrate . There was no appearance by Petitioner-Mother when the case was called at 9:24a.m. and no communication from her. Petitioner-Mother's modification petition (Supplement "I") was dismissed without prejudice due to her failure to appear.
On June 14, 2013, Petitioner-Mother filed a timely*5 objection together with an affidavit of service upon Respondent-Father's counsel. Petitioner-Mother objects that she was not sent notice of the May 13 court date, and that her modification petition was dismissed even though she was present in the courthouse, but not called into the courtroom when the matter was heard by the Support Magistrate. Petitioner-Mother further contends that she was never served with the Support Magistrate's final order, requests that the default judgment be vacated and her petition restored to the calendar because she has a reasonable excuse and a meritorious defense, as evidenced by medical documentation annexed to her objection.
No rebuttal has been filed.
NOW, after inquiry into the facts and circumstances of this case, Petitioner-Mother's objection is denied for the following reasons.
Pursuant to FCA § 439 (e), a party filing an objection must serve a copy of such objection upon the opposing party and file proof of service with the court at the time of the filing of the objection. On January 4, 2013 the Honorable Judge  issued a written order*6 which prohibited Petitioner-Mother from utilizing mail service and directed that all future petitions, orders to show cause, motions and objections filed by Petitioner-Mother must be served by personal service upon Respondent-Father through his attorney at the attorney's law offices, and that proof of service must include a signed acknowledgment of receipt. (See, Order of January 4, 2013 which is incorporated herein). The affidavit of service submitted together with Petitioner-Mother's objection reflects that it was served by mail and not by personal service upon Respondent-Father's counsel as directed. Additionally, a signed acknowledgment of receipt by Respondent-Father's counsel has not been submitted. Therefore, the affidavit of service is defective and the objection must be denied.
Even were this court to reach the merits, with respect to Petitioner-Mother's objection regarding dismissal of her modification petition (Supplement "I"), a review of the record reflects that the petition was properly dismissed without prejudice upon her default for failing to appear in court. Once an order is entered upon a party's default, s/he may not seek relief by the filing of an objection pursuant to FCA § 439(e). Rather, Petitioner-Mother must seek relief from the order pursuant to CPLR § 5015 by making a motion to vacate the default. See, Garland v. Garland, 28 AD3d 481 (2nd Dept., 2006); Kondratyeva v. Yapi, 13 AD3D 376 (2nd Dept., 2004); Matter of Widerman v. Murley, 155 AD3Dd 841 (3rd Dept., 1989);Menaldino v. Johnson, 162 AD2d 758 (3rd Dept., 1990). As such, the court is unable to determine the merits of the objection and it is therefore denied.
Ironically, while denying receipt of the notice of the adjournment date, Petitioner-Mother indicates in her objection that she was "present in the courthouse", that she "only found about the proceeding the evening prior to the court date when she was speaking to her children", and "Petitioner's lawyer was not present as they had not been notified by the court about the adjourned court date by mail or otherwise in any way", and she presents an elaborate scheme designed by court personnel to prevent her participation in the court proceedings. The Court was concerned with her description of the events that allegedly took place when Petitioner-Mother learned that her case was dismissed due to her non-appearance, such that the court inquired of security as to whether or not they had a record of such an incident. This Court has learned that there is in fact an Unusual Occurrence Report of that date which describes an entirely different version of these events. This Court is without the authority to address that grievance. At the same time, the court file contains a "Request for Adjournment" by Petitioner-Mother received by the Clerk's Office on May 13, 2013 at 9:51 a.m. indicating she has "a migraine headache and neck spasms. I request an adjournment of my support case. I am requesting 3 weeks adjournment. I have been trying to get a lawyer but have been unable to get one to represent me…I was not notified about today's court date until this morning" and a faxed request by Petitioner-Mother, dated May 13, 2013, which was received by the Clerk's Office at 2:25p.m. on May 13, 2013, requesting that she be excused from the court proceedings before Support Magistrate  together with a note from Dr.  dated May 13, 2013 indicating that Petitioner-Mother had "exacerbation of neck pain since last night. She should be home rest for three days." Be that as it may, Petitioner-Mother clearly failed to appear for her case in a timely fashion and her case was dismissed without prejudice. She had to have received the court's notice to be either requesting an adjournment by fax or by her actual attendance at court. Based on the innumerable court appearances she has made in the past, she should know the protocol for checking in with the court staff and that cases are not necessarily called in the numerical order in which they appear on the calendar and as well that her recourse for the dismissal of her petition without prejudice is to re-file her modification petition or to file a motion to vacate the default and restore the matter to the calendar.
With respect to the medical documentation from Dr.  dated May 13, 2013 submitted with Petitioner-Mother's objection, it appears from the record that Petitioner-Mother is submitting this documentation for the court's consideration for the first time in her objection and that she obtained this after the case dismissal as it was received in the Clerk's Office at 2:25 p.m. that same day. The law is clear that a party may not submit proof now and argue factual matters in his/her objection which s/he failed to offer proof of at a hearing before the Support Magistrate. See, Matter of Rzemieniewska-Bugnackiv. Bugnacki, 51 AD3d 1029 (2nd Dept., 2008); Redmond v. Easy. 18 AD3d 283 (1st Dept., 2005); Lahrs v. Lahrs, 158 AD2d 944 (4th Dept., 1990). Therefore, the court can not consider said documentation together with the objection and Petitioner-Mother's objection is denied.
WHEREFORE, by reason of the foregoing, Petitioner-Mother's objection is denied.
This constitutes the decision and order of this court.
Notify parties and counsel.
Notify Support Magistrate .
DATED: JULY 19,2013
JAMAICA, NEW YORK
/S/ JUSTICE OF THE FAMILY COURT
*1 A judgment of divorce was entered by the Honorable  on  in Supreme Court, Queens County in the matter , Index No. , which inter alia directed that all of the parties' property subject to equitable distribution be distributed in conformity with the parties' stipulation of settlement of , granted plaintiff father custody of the subject children [Child #1] born  and [Child #2] born  and granted defendant mother parenting time with the subject children. Defendant mother was directed to pay $303 weekly in child support and to pay 29.6% of the subject children's private school tuition and their unreimbursed medical expenses effective . Petitioner father was directed to continue to maintain health insurance for the subject children. Family Court was granted concurrent jurisdiction with Supreme Court with respect to issues of custody, visitation and child support. Judge 's Order was affirmed in .
*2 Docket  was scheduled for a willfulness hearing and the instant docket was scheduled for a hearing on Respondent-Father's motion for counsel fees.
*3 Petitioner-Mother was represented by court assigned counsel only on the violation hearing under .
*4 The Court has located in the court file the "Notice To Appear in Court" with the "final" marking for May 13, 2013 at 9 a.m. dated May 1, 2013 sent to Petitioner-Mother at her verified address which was not returned as "undeliverable".
*5 Although there is no indication on the endorsement sheet when the dismissal order was served upon the parties, the objection was filed 32 days after the dismissal of the petition and therefore the objection is deemed timely pursuant to FCA § 439(e).
*6 Said Order was entered under the instant docket as well as under Queens Family Court Dockets  and . A copy of said order was distributed to both parties and counsel in open court by Support Magistrate  on January 7, 2013.