Matter of R. S. K v E. Mc

[*1] Matter of R. S. K v E. Mc 2010 NY Slip Op 50099(U) [26 Misc 3d 1214(A)] Decided on January 27, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2010
Family Court, Westchester County

In the Matter of Proceedings Under Articles 6 and 8 of the Family Court Act R. S. K, Petitioner, .

against

E. MC, Respondent.



O-5043-08/09B



George Reed, Jr., Esq.

222 Mamaroneck Avenue

White Plains, New York 10601

Attorney for Mr. R.K.

Sam R. Watkins, Jr.

Watkins & Cherneff

106 Corporate Park Drive

White Plains, New York 10604

Attorney for Ms. E. Mc. Marilyn Faust, Esq.

4 Country Club Drive

Larchmont, New York 10538

Attorney for the Subject Child

Colleen D. Duffy, J.

On October 8, 2009, Petitioner-father R. K. (hereinafter "Mr. K.") filed an order to show cause to vacate defaults — to wit, to vacate orders arising out of a family offense petition against Mr. K., entered October 2, 1008, and a custody order granting sole legal and physical custody of the Subject Child J. K. (DOB: 9/6/01) (hereinafter "Subject Child") to Respondent-grandmother E. Mc. (hereinafter "Ms. Mc."), entered November 13, 2008 (hereinafter the "2008 Order of Custody").[FN1] Mr. K. also asks this Court to grant his application to go forward on a new petition, filed by Mr. K. contemporaneously with the motion to vacate the defaults, to modify the existing order of custody.

For the reasons set forth below, this Court denies the motion to vacate the order of protection or the custody order and continues those order in full force and effect, except to the extent that such orders have been modified by subsequent interim family court orders, and grants Mr. K.'s motion to proceed on his petition seeking to modify the 2008 Order of Custody.

The Proceedings on Inquest

On October 2, 2008, this Court held a fact finding, upon inquest, on petitions filed by Ms. Mc. pursuant to Articles 6 and 8 of the Family Court Act against Mr. K. for custody of the Subject Child and for a family offense on behalf of Ms. Mc. and the Subject Child. On that date, the Law Guardian for the Subject Child appeared. Mr. K. failed to appear, did not contact this Court as to why he failed to appear, and failed to make an application in advance of the proceeding for an adjournment of the matter. Ms. Mc. requested this Court to proceed to fact-finding upon inquest.

Stephen Gold, Esq., then-counsel for Mr. K., asked this Court to adjourn the matter stating that he had spoken to Mr. K. who told him that he could not attend the court proceeding that day because he had been scheduled to start an outpatient program at the Maxwell Institute, a companion program to St. Vincent's, on that Monday. In addition, Mr. Gold stated that Mr. K. informed him that he wasn't feeling well and that he had to take care of "administrative things." See Audio Electronic Recording of Court Proceedings of October 2, 2008.

Ms. Mc. opposed the application to adjourn contending that a significant length of time had passed since the proceeding was initiated and that an adjournment at the "eleventh hour" was prejudicial. Marilyn Faust, Esq., law guardian for the Subject Child, also objected contending that any delay was "detrimental to [the Subject Child] as "a [*2]resolution of the matter [was] in the [Subject Child's] best interest." See Oct. 2, 2008 Electronic Recording. The Law Guardian also argued that Mr. K. had told her on numerous occasions that he was going to be starting a [alcohol abuse rehabilitation] program, but that it was always something Mr. K. was "going to do" and that it was never, in fact, done. Id.

The Court then denied Mr. Gold's application to adjourn on behalf of his client. Mr. Gold then requested a continuance of the proceedings which the Court also denied, with a direction to Mr. Gold that he could renew his application if the testimony and/or evidence was unable to be concluded on that date. The Court also dismissed for failure to prosecute the petitions Mr. K. had filed for enforcement of the Court's interim orders of visitation.

The Court then proceeded to Inquest which was concluded on that date. Mr. Gold remained mute for the remainder of the proceedings.

At the inquest, upon consideration of the credible testimony and evidence, the Court determined that Ms. Mc. had established standing to proceed on her custody petition in that she had established that extraordinary circumstances existed due to the credible testimony by Ms. Mc. as well as Mr. K.'s sister Mrs. W. as to Mr. K.'s excessive use of alcohol from early morning through each evening, his aggressive and threatening behavior toward the Subject Child and Ms. Mc. after he began consuming alcohol, Mr. K.'s insistence on driving a vehicle with the Subject Child in the car after Mr. K. has consumed significant amounts of alcohol and despite being warned by family members not to do so, Mr. K.'s inability to properly care for the Subject Child with respect to food and clothing and housing due to his excessive and persistent use of alcohol, Mr. K.'s failure to exercise proper care of the Subject Child because of his frequent use of alcohol including, on one occasion, frightening and physically dropping the Subject Child due to his inebriation and the need for police intervention, and Mr. K.'s failure to obtain or participate in treatment to address his alcohol abuse.

Based on the credible testimony and evidence, the Court thereafter found that it was in the best interest of the Subject Child for sole legal and physical custody to be awarded to Ms. Mc. The Court also found that Ms. Mc. had established her burden of proof as to the family offense petition establishing that Mr. K. had committed harassment in the second degree, penal law § 240.26, as against Ms. Mc. and the Subject Child.

Thereafter, the Court issued an Order of Custody Upon Default [FN2], entered November 13, 2008, granting sole legal and physical custody to Ms. Mc. and directing that Mr. K. have no access to the Subject Child until such time as he had petitioned the Court and presented credible evidence that he was participating in and complying with [*3]an appropriate substance abuse treatment program. The Court also issued a one year Order of Protection, expiring October 2, 2009, directing that Mr. K. stay away from Ms. Mc. and her home and refrain from communication by any means with the Subject Child and Ms. Mc. and directing that Mr. K. refrain from assault, stalking, harassing, menacing, engaging in reckless endangerment, or any other criminal offense against Ms. Mc. and the Subject Child. See Order of Protection, entered October 2, 2008, and Order of Fact- Finding and Disposition, issued October 2, 2008 and entered March 30, 2009 (Duffy, J.)

On October 2, 2008, the Court also ordered that Mr. K. be placed on probation for a one year period through October 2, 2009, and comply with certain terms and conditions including participating in and following all the recommendations resulting from an alcohol and/or substance abuse evaluation. Id.

Order to Show Cause to Vacate Defaults

As noted above, on October 8, 2009, Mr. K. filed an order to show cause seeking to vacate the 2008 Custody Order and Order of Protection and Order of Fact-Finding and Disposition contending that the default was excusable and that he has a meritorious defense to the custody and family offense petitions. On November 16, 2009, the Law Guardian filed an affirmation in opposition to the Order to Show Cause to Vacate the Defaults [FN3]; on November 25, 2009, Ms. Mc. filed with the Court her opposition (via attorney affirmation) to Mr. K.'s Order to Show Cause. Although the opposition was not timely filed, the Court agreed to consider the affirmation and informed counsel for Mr. K. that he could submit a reply to the opposition on or before December 4, 2009. Counsel for Mr. K. thereafter filed a reply affirmation with this Court on December 2, 2009.

Vacating Defaults in Family Offense and Custody Cases

As an initial matter, the Court notes that, with respect to the order of protection, more than a year has elapsed between the date of notice of entry (October 2, 2008) and the filing of the order to show cause (October 8, 2009). Nonetheless, as no proof of service with the notice of entry has been submitted to the Court for consideration on this issue, the Court will consider the application on that order as made within the proscribed timetable. CPLR § 5015; see also Parker at 485-486.

Although the Court has a liberal policy with respect to vacating defaults with respect to issues of custody (see Russo v. Camarasana, 26 AD3d 367 (App. Div. 2d Dep't 2006)), it does not have the same liberality when it comes to family offense petitions and orders of protection. See Ram-Parker v. Parker, 2009 NY Slip Op. 29008, 23 Misc 3d 482 (Fam. Ct., Bronx Cnty 2008). Indeed, the purpose of Article 8 of the Family Court Act is to "attempt to stop violence, end family disruption and obtain protection." Ram-Parker v. Parker at 487 citing FCA § 812(2)(b) and Walker v. Walker, 86 NY2d 624 628 (1995). While the primary goal of Article 6 of the Family Court Act is to mandate custody and visitation arrangements that serve the best interests of the [*4]Subject Children, the primary goal of Article 8 proceedings is to circumscribe domestic violence. See Parker at 488; see also e.g., Marie G. v. John Christopher W., 57 AD3d 314 (App. Div. 1st Dep't 2008) (affirming five year order of protection against a father requiring him to stay away from his child except for court ordered visitation).

Here, the issues underlying the family offense and the custody petitions are inextricably intertwined, that is, the same nucleus of operative facts — that Mr. K. was placing the Subject Child and Ms. Mc. at risk and that he committed certain enumerated family offenses due to his excessive and pervasive abuse of alcohol. As a result of the inter-related nature of the allegations, the Court had consolidated the family offense and custody proceedings with respect to witness testimony and evidence.

Thus, this Court has determined that any vacatur of the default out of which the 2008 Custody Order arose necessarily would require vacatur of the default on the family offense petition out of which the orders of protection and probation issued by this Court arose. Indeed, as the Order of Protection proscribed Mr. K. from communicating with the Subject Child, as other treatment could result in inconsistent orders. See Order of Protection, issued October 2, 2008. The Court also notes that its finding of extraordinary circumstances as to Ms. Mc. s' standing to proceed on her custody petition was based, in large measure, on its determination of the facts underlying the family offense petition — to wit, Mr, K. harassed Ms. Mc. and the Subject Child during incidents involving his pervasive and excessive use of alcohol.

No Reasonable Excuse or Meritorious Defense Exist

Pursuant to CPLR 5015(a)(1), Mr. K. must establish both a reasonable excuse for his default and a meritorious defense in order for such default to be vacated. Rolston v. Rolston, 261 AD2d 377, 689 NYS2d 226 (2d Dep't 1999); see also Coates v. Lee, 32 AD3d 539 (App. Div. 2nd Dep't 2006). The determination as to whether the party has established a reasonable excuse for the default lies within the discretion of the trial court, as the finder of fact. See Lutz v. Goldstone, 31 AD3d 449, 809 NYS2d 341 (4th Dep't 2006).

With respect to a reasonable excuse as to why he failed to appear on the date of fact-finding, here, Mr. K. has not shown a reasonable excuse [FN4]. It is undisputed that Mr. K. was aware of the scheduled date for fact-finding. In addition, the Court finds Mr. K.'s "new" reasons for his absence to be wholly incredible. Mr. K. now proffers a wholly different explanation as to his absence on October 2, 2008 than the explanation that was provided to the Court on that date by his counsel. On October 2, 2008, this Court was told that Mr. K. failed to attend the court proceeding because he had just started a program at the Maxwell Institute, that he wasn't feeling well and that he had administrative things to do. Now, Mr. K. contends that he was required to be at work - despite advance notice of the fact-finding date - because of a special meeting at City Hall on that date. (See Affidavit of R. K., dated October 6, 2009, ¶ 5.) Mr. K. has provided no documentation or affidavit of employer to confirm such a statement. The Court finds Mr. K.'s statements as to his absence on the date at issue incredible.

Mr. K. also lacks a meritorious defense to the allegations in the custody and [*5]family offense petitions. The allegations with respect to both the custody and family offense petitions are very serious— comparable to those that could have been brought in a neglect proceeding. Mr. K.'s defense to the allegations in both the family offense and custody petitions are merely denials, without more, of these serious allegations. Such bald denials, without more, are insufficient to merit a new hearing. See e.g., Schorr v. Schorr, 213 AD2d 621 (App. Div. 2d Dep't 1995) (defendant offered no defense to plaintiff's allegations of abuse and therefore that portion of order on which abuse was based should not have been vacated); see also Sayegh v. Sayegh, 205 AD2d 678 (App. Div. 2d Dep't 1994) (no meritorious defense shown).

As noted by the Law Guardian in her opposition to the order to show cause, the evidence that Mr. K. had an alcohol abuse problem was overwhelming, including but not limited to, eye witness testimony. (See Affirmation by Marilyn Faust, Esq., November 11, 2009, ¶ 3.) The Court found credible the testimony and evidence germane to Mr. K.'s abuse of alcohol and his threatening behavior toward Ms. Mc. and the Subject Child as a result of his alcohol abuse. Mr. K.'s mere denial of those facts, without more, is unavailing to establish a meritorious defense. Id.

The Court also notes that the new facts that Mr. K. alleges that he's completed an alcohol rehabilitation program, that he has employment and another child — would constitute a substantial change of circumstances which could be the basis for him to proceed on his petition seeking to modify the 2008 Custody Order, but is not a basis to vacate the defaults or the Orders which arose out of the inquest proceedings.

As noted above, the determination to vacate an order entered upon default is within the sound discretion of this Court. Coates, at 837; Atkin v. Atkin, 55 AD3d 905 (App. Div. 2nd Dep't 2008). Thus, the requirements of CPLR 5015 must be considered within the context of the best interests of the Subject Child. See Russo at 553. Indeed, the need to avoid a "roller coaster treatment of custody" (Schloss v. Schloss, 405 NYS2d 717, 718 (App. Div. 1st Dep't 1978)) dictates that, although typically a full evidentiary hearing on the issue of custody is preferable, this Court's need to ensure that the Subject Child is protected is paramount. Here, in light of this Court's finding that no reasonable excuse and no meritorious defense have been presented by Mr. K., and given the Court's need to ensure protection of the Subject Child, the Court denies the order to show cause to the extent that it seeks to have the underlying orders vacated, but grants the order to show cause to the extent that it seeks leave for Mr. K. to proceed on his modification petition.

The Court considered the following in determining the Order to Show Cause: Order to Show Cause, dated October 9, 2009, and affirmation and affidavit and exhibits attached thereto; Affirmation of Law Guardian in Opposition to the Order to Show Cause, dated November 16, 2009; Affirmation by Sam Watkins, Esq., counsel for Ms. Mc., in Opposition Order to Show Cause, dated November 25, 2009; Reply Affirmation by George Reed, Esq., counsel for Mr. K., dated December 2, 2009.

This constitutes the Decision and Order of this Court.

DATED: January 27, 2010

Yonkers, New York

ENTER:

___________________________

COLLEEN D. DUFFY

FAMILY COURT JUDGE Footnotes

Footnote 1: Concomitant with a conference on the pending matters, the Court and counsel realized that the existing order of custody in the Court's files does not fully reflect the Court's order on the record on October 2, 2008 — indeed, at least one page is missing. Accordingly, a motion to resettle that order has been fully briefed and that order has been resettled. For the purposes of this Decision and Order, the Court also shall refer to that resettled order as the "2008 Order of Custody" and considers the relief sought by Mr. K. in his order to show cause to vacate the original order as relief also sought as to the resettled order.

Footnote 2: The Court previously had determined that the Subject Child's mother J. G.-K. had not been served with the petition but that no further efforts would be necessary as further attempts to serve her likely would be fruitless as her whereabouts were unknown and she had not had any contact with the Subject Child since December 2002, almost the duration of the Subject Child's life. See Interim Order of Custody, entered October 2, 2008 (Duffy, J.) Prior application by Mr. K. to the Court, to wit, a Petition for a Writ of Habeas Corpus, dated January 27, 2009, appears to indicate that Ms. G.-K. is deceased. See ¶16 of that Petition for Writ (". . . I am the child's father and the only biological parent that he has . . .").

Footnote 3: On October 22, 2009, Marilyn Faust, Esq., Law Guardian to the Subject Child, sent a letter to the Court requesting additional time to respond to Mr. K.'s Order to Show Cause. No one opposed the application and the Court granted the Law Guardian additional time to submit her response.

Footnote 4: Indeed, the Court finds Mr. K.'s excuse incredible as noted herein.