Matter of W.K. v C.C.

[*1] Matter of W.K. v C.C. 2009 NY Slip Op 51918(U) [24 Misc 3d 1248(A)] Decided on September 11, 2009 Family Court, Westchester County Duffy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 11, 2009
Family Court, Westchester County

In the Matter of a Proceeding Under Article 4 of the Family Court Act W.K., Petitioner,

against

C.C., Respondent.



F-02477-07/08B



Legal Services of the Hudson Valley

Trevor Eisenman, Esq.

90 Maple Avenue

White Plains, New York 10601

Westchester County Support Collection Unit

112 East Post Road

White Plains, New York 10601

Colleen Duffy, J.

On May 13, 2008, W. K. ("Mr. K") filed an Order to Show Cause against C. C. ("Ms. C.") seeking (1) to vacate an Order of Support upon default, dated May 15, 2007 and entered May 22, 2007 (S.M. Jordan) ("May 2007 Order"); (2) staying, enjoining and restraining Respondent or the Westchester County Support Collection Unit ("SCU") from enforcing the May 2007 Order; (3) Restoring the underlying petitions[FN1] to the calendar; and (4) for the court to grant such other and further relief as is deemed necessary and proper. On May 28, 2008, the matter was heard by Support Magistrate Michele Reed-Bowman, wherein she dismissed Mr. K's Order to Show Cause and issued a Decision and Order, entered February 9, 2009 ("February 2009 Order"). On [*2]March 10, 2009, Mr. K, by his attorney Trevor Eisenman, Esq., filed an objection to the February 2009 Order.

Chronology of Proceedings

On or about September 1, 2005, Ms. C. began receiving public assistance from the Westchester County Department of Social Services for her benefit and the benefit of her daughter, S. C. (DOB: 3/10/1994) ("Subject Child"). On February 8, 2007, the Commissioner of Social Services ("Assignee")[FN2] filed a paternity petition against Mr. K. seeking to have Mr. K. be declared the father of the Subject Child.

On March 8, 2007, the matter came before Support Magistrate Jordan for preliminary proceeding. Assignee appeared by Assistant County Attorney Henry Pearlman, Esq.; Ms. C. appeared pro se. Service was not affected upon Mr. K. and the Assistant County Attorney requested an adjournment for further preliminary proceeding. Support Magistrate Jordan granted the request to adjourn and the matter was scheduled to April 17, 2007.

On April 17, 2007, Respondent appeared pro se. Assignee appeared by Assistant County Attorney Barbara Harmatz, Esq. Mr. K was not present. Ms. Harmatz informed the Support Magistrate that service was effected upon Mr. K via suitable age and discretion upon a woman named "Susan" who informed the process server that she was Mr. K's roommate. Ms. Harmatz also stated that, on March 22, 2007, her office mailed the petitions to Mr. K's address. Thereafter, Ms. Harmatz asked the Support Magistrate to find that service was effected upon Mr. K and to proceed to inquest against Mr. K. The Support Magistrate deemed service to be complete and proceeded to inquest. No affidavit of service exists in the file.

At inquest, the Support Magistrate found Ms. Cs' testimony to be credible, finding that the parties never were married, that the parties had engaged in sexual intercourse in or about June 1993 and that Mr. K was the only man Ms. C had had intercourse with during the applicable time frame.

Ms. Harmatz asked the Support Magistrate to find that paternity had been established against Mr. K and sought to have the Support Magistrate enter an Order of Filiation against Mr. K and adjourn the matter with respect to the issue of child support. The Support Magistrate stated that "she would reserve judgment on the paternity petition" and "adjourned the matter for inquest" to determine what amount of child support Mr. K would be obligated to pay.[FN3] The Support Magistrate instructed Assignee to send inquest notice to Mr. K and then adjourned the matter to May 15, 2007.

On May 15, 2007, Ms. C appeared pro se. Mr. K was not present. Assignee appeared by Assistant County Attorney Harmatz. At the commencement of the [*3]proceeding, the Support Magistrate issued an oral decision about the paternity petition, to wit, that Mr. K is the father of the Subject Child. The Support Magistrate then requested an affidavit or proof that the Assignee had sent inquest notice of the May 15, 2007 proceedings to Mr. K as directed by the Court during the prior proceeding. Ms. Harmatz stated that she did not have that document with her but that she would file it with the Court. The Support Magistrate instructed Ms. Harmatz to file the inquest notice with the Court no later than May 18, 2007, or the Order of Filiation and Order of Support would not be entered by the Court.[FN4]

Ms. Harmatz agreed to do so and the inquest commenced. Ms. Harmatz stated that she did not have any information regarding Mr. K's current or prior incomes. Ms. Harmatz also stated that she had a record that Mr. K previously worked for "Superior Personnel" but Ms. Harmatz could not determine what if any salary he received for that work. Ms. Harmatz then requested that the Court find that Mr. K has an ability to earn a minimum wage of eight dollars ($8.00) per hour for forty hours per week and asked the Court to set arrears, nunc pro tunc, from the date of entitlement, or the date that the Subject Child began receiving public assistance, to wit, September 1, 2005.

Support Magistrate Jordan issued an Order of Support upon Default obligating Mr. K to pay fifty four dollars ($54.00) per week in child support, effective May 18, 2007. The Support Magistrate also set arrears from the date of entitlement through May 11, 2007 in the amount of four thousand seven hundred sixty seven dollars and forty three cents ($4,767.43) ("May 2007 Order").

On October 1, 2007, Assignee filed a violation petition against Mr. K alleging that Mr. K failed to obey the terms of the May 2007 Order, and that, as of September 21, 2007, Mr. K owed arrears in the amount of five thousand seven hundred thirty nine dollars and forty three cents ($5,739.43). The matter was scheduled to be heard on October 31, 2007 before Support Magistrate Jordan. The matter was adjourned on the Court's own motion to May 1, 2008.

On April 16, 2008, Mr. K filed a paternity petition with the Court. After a series of adjournments by the court's own motion, Mr. K's paternity petition was consolidated with the violation petition and was set to be heard on May 1, 2008 before Support Magistrate Reed-Bowman.

On May 1, 2008, Assignee appeared by Assistant County Attorney John Vorperian, Esq. Mr. K appeared pro se and requested an adjournment to allow his newly retained counsel, Trevor Eisenman, Esq. to appear on Mr. K's behalf. Mr. K testified that he received no notice of the May 2007 proceedings and was unaware that an Order of Filiation had been entered against him. The Support Magistrate granted Mr. K's request for an adjournment and set the matters for hearing on May 13, 2008.

On May 13, 2008, Ms. C failed to appear. Mr. K appeared personally and with counsel Trevor Eisenman, Esq., of counsel to Legal Services of the Hudson Valley. Assignee appeared personally by caseworker Kerrick Agee and was represented by Assistant County Attorney John Vorperian, Esq. Mr. K, by way of counsel, requested [*4]that the paternity petition that he filed on April 16, 2008, be withdrawn and the Support Magistrate granted that request.[FN5] Mr. K's counsel proffered an Order to Show Cause to the Court, which previously had not been served upon Assignee. Mr. K stated that he was incarcerated during the pendency of the matters before the Support Magistrate and that he had good cause to request a hearing to vacate the default entered against him in May 2007.

Upon review of the Court's file, Support Magistrate Reed-Bowman asked Assignee to provide to the Court the inquest notice, which was to have been filed with the Court almost one year earlier. Mr. Vorperian did not have that document. The Support Magistrate thereafter granted Mr. K's request to adjourn the matter and instructed Mr. K's counsel to file the OTSC and serve the Assignee pursuant to the Civil Practice Laws and Rules.

Petitioner filed an Order to Show Cause to relieve the default on May 13, 2008. On May 22, 2008, Assignee filed an affirmation in opposition to the Order to Show Cause.

On May 28, 2008, Support Magistrate Reed-Bowman held a hearing on both the violation petition and Order to Show Cause. No testimony or evidence was heard on that day by the Support Magistrate and the Support Magistrate informed the parties that she would rely on the papers submitted and she reserved judgment on the matters informing parties that she would issue a decision in writing.

Thereafter, Support Magistrate Reed-Bowman issued a Decision and Order denying Petitioner's motion for an order to vacate, dated February 2, 2009 and entered February 9, 2009 ("February 2009 Order"). The Decision and Order had no findings as to the violation petition.[FN6]

On March 10, 2009, Mr. K, through his attorney, Trevor Eisenman, Esq. filed an Objection to the February 2009 Order contending that the Support Magistrate erred in (1) finding that Petitioner properly was served with the February 8, 2007 paternity petition; and (2) in failing to vacate the May 2007 Order. Mr. K contends that he did not receive any notice of the underlying proceedings in 2007 and only became aware that Ms. C believed he was the father of the Subject Child when he received a Support Accounting while he was incarcerated. Mr K also contends that case law and policy dictates that Family Court matters should be decided on the merits, not at inquest.

For the reasons set forth in this Decision and Order, the Court grants Petitioner's Objection to the February 2009 Order, vacates the May 15, 2007 Order of Support and Order of Filiation by default, entered May 22, 2007 (S.M. Jordan) and remits the paternity matter to Support Magistrate Michele Reed-Bowman for further proceedings consistent with this decision and order.

Statement of Law [*5]

Family Court Act section 439(a) empowers Support Magistrates "to hear, determine and grant any relief within the powers of the Court" in proceedings properly before them. FCA section 439(e) provides that the Support Magistrate's determination "shall include Findings of Fact and a final order." The parties are permitted by the statute to submit "specific written objections" to the order for "review" by a Family Court judge. This review of the Support Magistrate's order is essentially equivalent to an appellate review of such an order. Matter of Green v. Wron, 151 Misc 2d 9, 571 NYS2d 193 (Fam. Ct. NY Cnty. 1991). The scope of that review, however, is narrow, confined to whether the Support Magistrate, as the trier of fact, has made the necessary findings of fact and an order and whether, upon review of the record, the findings of fact present a reasonable basis for that order. The Support Magistrate is granted broad discretion in weighing the relative financial positions of the parties and evaluating testimony and, therefore, his or her findings are entitled to great deference. Creem v. Creem, 121 AD2d 676, 504 NYS2d 444 (2d Dep't 1986). The determination of the Support Magistrate should not be disturbed on appeal unless no fair interpretation of the evidence can support the findings. Stone v. Stone, 236 AD2d 615, 652 NYS2d 824 (2d Dep't 1997); Reed v. Reed, 240 AD2d 951, 659 NYS2d 334 (3rd Dep't 1997).

Petitioner's Objection to the OTSC Dismissal

With respect to Mr. K's Objection to the OTSC Dismissal, the Court finds that the Support Magistrate erred in denying Mr. K's application to have the May 2007 Order, entered on default, vacated. A party seeking to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense or claim. Rolston v. Rolston, 261 AD2d 377, 689 NYS2d 226 (2d Dep't 1999).Although the determination as to whether the party has established a reasonable excuse for the default typically lies within the discretion of the trial court - here, the Support Magistrate, as the finder of fact, see Lutz v. Goldstone, 31 AD3d 449, 809 NYS2d 341 (4th Dep't 2006), the Court notes that the Second Department has adopted a liberal policy with respect to vacating defaults in proceedings involving custody and child support. Louis v. Louis, 231 AD2d 612, 647 NYS2d 819 (2d Dep't 1996).

Section 5015 of the Civil Practice Law and Rules provides that a Respondent may be relieved of a default on the dual showing of an appropriate excuse for the default and a meritorious defense to the petition. The denial of a motion pursuant to § 5015 is appealable to a Family Court judge by the filing of objections. Commissioner of Social Services on Behalf of Nidia F. V. Paulino F., 146 Misc 2d 1014, 553 NYS2d 636 (Fam. Ct. 1990). It is not necessary for a party to establish the validity of its defense as a matter of law, it is only necessary to demonstrate a defense that is potentially meritorious. See Cupoli v. Nationwide Ins. Co., 283 AD2d 961, 724 NYS2d 382 (4th Dep't 2001).[FN7] [*6]

Upon this Court's review of its file and upon review of the transcript of the proceedings, it is clear that the Support Magistrate erred as a matter of law by determining that service properly was effected upon Mr. K in 2007. Upon review of the file and transcripts, this court finds that there is no proof of service on Mr. K. Indeed, there is no evidence that any attempt was made by Assignee to personally serve Mr. K other than an oral representation, upon information and belief, by counsel for assignee. No affidavit of service was provided to the Support Magistrate as to the preliminary proceeding.[FN8] Moreover, Assignee also failed to file proof of the inquest notice for the May 2007 court proceedings as directed by the Court.

Mr. K denies ever having been served with any notice of any of the proceedings; he also claims he did not receive summons papers. This Court finds credible Mr. K's affirmation regarding his lengthy incarceration and parole obligations and Petitioner's statements that he was incarcerated during the time frame when service was "effected". Therefore, this Court finds that no service was effected upon Mr. K. Accordingly, no personal jurisdiction over Mr. K ever attached. See Sutton v. Mundy, 24 AD3d 1128, 807 NYS2d 185 (3d Dep't 2005); and Comm'r of the Dep't. Of Social Services of the City of NY v. Howell, 194 Misc 2d 558, 756 NYS2d 365 (2d Dep't 2002) (admissible evidence of service is required; testimony by someone other than the process server of how, when and where service was effected is inadmissible hearsay). Thus, until personal jurisdiction over Mr. K was accomplished, all proceedings and orders issued prior to such event are null and void.[FN9] as no personal jurisdiction ever attached as to Mr. K.

Accordingly, the May 2007 Order of Filiation and May 2007 Order of Support are hereby vacated. The paternity petition filed by Assignee hereby is remitted to the Support Magistrate for hearings on the merits.[FN10]

[*7]DECISION AND ORDER

Accordingly, after examination and inquiry into the facts and circumstances of the case, it is hereby

ORDERED that Petitioner's objection is granted to the extent that the paternity petition matter is remitted to the Support Magistrate for further proceedings consistent with this Decision and Order; and it is further

ORDERED that the parties are directed to appear before the Support Magistrate Michele Reed-Bowman, onfor further proceedings consistent with the Court's decision herein; and it is further

ORDERED that the Order of Filiation Upon Default, dated May 15, 2007 and entered May 22, 2007 is hereby vacated; and it is further

ORDERED that the Order of Support Upon Default, dated May 15, 2007 and entered May 22, 2007, is hereby vacated; and it is further

ORDERED that the following appear before the designated provider with proper picture identification and this order for the purpose of submitting to such genetic marker test or tests:

NameProviderDateTime

W KTBDSeptember 24, 200910:00 AM

S CTBDSeptember 24, 200910:00 AM

ORDERED that the custodial party, C. C, shall bring the Subject Child for testing;

ORDERED that said mother and child appear at: 53 South Broadway Yonkers, NY 10701 on September 24, 2009 at 10:00 AM for the purpose of submitting to such genetic marker test or tests; and it is further

ORDERED that the entity obtaining specimens: shall forward the specimens of the mother, child and alleged father to: Support Magistrate Michele Reed-Bowman Yonkers Family Court 53 South Broadway Yonkers, NY 10701; and it is further

ORDERED that upon completion of said test, said entity shall file the original in the office of the Clerk of this Court; and it is further

ORDERED that the report of said test(s), if certified in accordance with Section 4518(d) of the Civil Practice Law and Rules; is admissible in evidence unless objections to the report are made in writing to the Clerk of the Court no later than twenty days before the hearing or thirty days after receipt of the report of the test results, whichever is earlier, and if no such timely objections are made, they are deemed waived. The next court date is

THIS CONSTITUTES THE DECISION AND ORDER OF THIS COURT.

NOTE: (1) THE ORDER OF CHILD SUPPORT SHALL BE ADJUSTED BY THE APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER THIS ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED, UPON THE REQUEST OF ANY PARTY TO THE ORDER OR PURSUANT TO PARAGRAPH [*8](2) BELOW. UPON APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT, AN ADJUSTED ORDER SHALL BE SENT TO THE PARTIES WHO, IF THEY OBJECT TO THE COST OF LIVING ADJUSTMENT, SHALL HAVE THIRTY-FIVE (35) DAYS FROM THE DATE OF MAILING TO SUBMIT A WRITTEN OBJECTION TO THE COURT INDICATED ON SUCH ADJUSTED ORDER. UPON RECEIPT OF SUCH WRITTEN OBJECTION, THE COURT SHALL SCHEDULE A HEARING AT WHICH THE PARTIES MAY BE PRESENT TO OFFER EVIDENCE WHICH THE COURT WILL CONSIDER IN ADJUSTING THE CHILD SUPPORT ORDER IN ACCORDANCE WITH THE CHILD SUPPORT STANDARDS ACT.

(2) A RECIPIENT OF FAMILY ASSISTANCE SHALL HAVE THE CHILD SUPPORT ORDER REVIEWED AND ADJUSTED AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER SUCH ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED WITHOUT FURTHER APPLICATION OF ANY PARTY. ALL PARTIES WILL RECEIVE NOTICE OF ADJUSTMENT FINDINGS.

(3) WHERE ANY PARTY FAILS TO PROVIDE AND UPDATE UPON ANY CHANGE THE SUPPORT COLLECTION UNIT WITH A CURRENT ADDRESS, AS REQUIRED BY SECTION FOUR HUNDRED FORTY-THREE OF THE FAMILY COURT ACT TO WHICH AN ADJUSTED ORDER CAN BE SENT, THE SUPPORT OBLIGATION AMOUNT CONTAINED THEREIN SHALL BECOME DUE AND OWING ON THE DATE THE FIRST PAYMENT IS DUE UNDER THE TERMS OF THE ORDER OF SUPPORT WHICH WAS REVIEWED AND ADJUSTED OCCURRING ON OR AFTER THE EFFECTIVE DATE OF THE ORDER, REGARDLESS OF WHETHER OR NOT THE PARTY HAS RECEIVED A COPY OF THE ADJUSTED ORDER.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

ENTERED

HON. COLLEEN D. DUFFY

JUDGE OF THE FAMILY COURT

DATED:

September 11, 2009Yonkers, New York Footnotes

Footnote 1:On February 8, 2007, the Westchester County Department of Social Services filed a paternity petition on behalf of Petitioner against Respondent to have Respondent declared the father of the Subject Child.

Footnote 2:Based on the principle of "protecting the public purse", as the representative of NY State in a parens patriae capacity for children in need of support, the Commissioner of Social Services has an independent right to initiate support proceedings. NY Fam. Ct. Act §§ 422(a), 522; NY Soc. Serv. Law § 102(1).

Footnote 3:Although this determination suggests that the Support Magistrate already had, in fact, decided the issue of paternity, the Court need not address this matter in light of this Decision and Order vacating the underlying orders.

Footnote 4:There is no record in the court file that any such proof of inquest notice or service was filed with the court on or before May 18, 2007, or any time thereafter.

Footnote 5:Counsel contended that Mr. K had filed the paternity petition ostensibly to seek a GMT test to demonstrate that he is not the father of the Subject Child.

Footnote 6:Although the Support Magistrate erred in failing to address the violation petition, the entire issue as to that petition now is moot as this Court has vacated all the orders including the Order of filiation.

Footnote 7: This Court notes that Petitioner improperly filed his motion before the Support Magistrate as an order to show cause seeking to stay the May 2007 Order of Filiation on Default and the May 2007 Order of Support on Default. See Dep't of Social Services on Behalf of Gary Z. v. Burton H., 151 Misc 2d 400, 572 NYS2d 839 (Support Magistrate . . . may not sign an order to show cause and may only exercise jurisdiction specifically granted by statute); Family Court Act § 439 ("support magistrate shall have the authority to hear and decide motions [emphasis added] . . ."). Respondent's appropriate remedy would have been to file a motion to vacate the default pursuant to CPLR 5015(a)(1). See TO v. JS, 19 Misc 3d 1108A, 859 NYS2d 907 (party seeking to challenge order entered on default must file motion [emphasis added] before the Support Magistrate). Nonetheless, the Court notes that, in effect, the order to show cause was heard by the Support Magistrate as a motion to vacate and dismissed the OTSC in the February 2009 Order.

Footnote 8: The April 17, 2007, was the second preliminary proceeding. The matter had been adjourned from March 8, 2007 at the request of Assignee so that it could effect service.

Footnote 9:Although personal jurisdiction did attach to Mr. K when he filed a petition with the Court on April 16, 2008, the orders that are the subjects of this objection already had been issued.

Footnote 10:The Court notes that the Subject Child was thirteen at the commencement of these proceedings and currently is fifteen years old. The Court notes that there is no record of any testimony by either party to demonstrate that Mr. K ever had a relationship with the Subject Child; therefore, there appear to be no estoppel issues in this matter. See e.g., French v. Hanson, 17 Misc 3d 1128(A), 851 NYS2d 69 NY Fam. Ct., 2007; Campbell v. Campbell, 149 AD2d 866, 540 NYS2d 556 (3d Dep't 1989); Monteleone v. Antia, 60 AD2d 603, 400 NYS2d 129 (2d Dep't 1977); Barbara S. v. Michael I., 24 AD2d 451, 805 NYS2d 425 N.Y.A.D. (2d Dept. 2005).