Opinion
2013-10-24
In the Matter of SCOTT KK., Appellant, v. PATRICIA LL., Respondent. (And Three Other Related Proceedings.).
Mitch Kessler, Cohoes, for appellant. Albert F. Lawrence, Greenfield Center, for respondent.
Mitch Kessler, Cohoes, for appellant. Albert F. Lawrence, Greenfield Center, for respondent.
Rose T. Place, Glens Falls, attorney for the child.
Before: LAHTINEN, J.P., STEIN, SPAIN and EGAN JR., JJ.
LAHTINEN, J.P.
Appeals (1) from an order of the Family Court of Warren County (Pritzker, J.), entered January 11, 2012, which granted respondent's application, in proceeding No. 3 pursuant to Family Ct. Act article 8, for an order of protection, (2) from an order of said court, entered January 11, 2012, which dismissed petitioner's applications, in proceeding Nos. 1 and 2 pursuant to Family Ct. Act article 6, to, among other things, modify a prior order of custody, and (3) from an order of said court, entered June 28, 2012, which dismissed petitioner's application, in proceeding No. 4 pursuant to Family Ct. Act article 8, to modify an order of protection.
The parties, unmarried parents of a child (Febe, born in 2003), had multiple proceedings pending before Family Court. Petitioner (hereinafter the father), who was serving a prison term for a felony conviction, informed Family Court directly and through his attorney that he would not appear in court except for a trial. Based upon his refusal to be transported for a duly scheduled appearance in court regarding the pending petitions, Family Court dismissed the father's petitions. The court further granted the pending application of respondent (hereinafter the mother), which alleged a family offense by the father, and, after the mother's testimony as to repeated violations by the father of temporary orders of protection, Family Court issued a five-year order of protection for the mother and her child from another relationship as well as a two-year order of protection for Febe. As to Febe, Family Court indicated that it was amenable to attempting to establish visitation for the father in the event that he petitioned for modification and acknowledged a willingness to adhere to court orders. Instead, the father appealed.
We are unpersuaded by the father's contention that Family Court erred in finding him in default. While “[a] party who fails to appear generally will not be considered in default when the party's attorney is able to offer an explanation for the absence” (Matter of Scott v. Jenkins, 62 A.D.3d 1053, 1054, 880 N.Y.S.2d 361 [2009],lv. denied13 N.Y.3d 705, 887 N.Y.S.2d 2, 915 N.E.2d 1180 [2009];see Matter of Freedman v. Horike, 107 A.D.3d 1332, 1333, 969 N.Y.S.2d 193 [2013];Matter of Hill v. Hillenbrand, 12 A.D.3d 980, 981, 785 N.Y.S.2d 555 [2004],lv. denied4 N.Y.3d 705, 792 N.Y.S.2d 898, 825 N.E.2d 1093 [2005] ), the only explanation offered by the father's attorney, who did appear, was to report the father's refusal to appear at any proceeding before Family Court other than a trial on his petitions. The record reflects that the father attempted to dictate to Family Court how the proceedings should progress and when he would attend. Family Court's finding of default and dismissal was proper in light of the father's willful refusal to appear and the absence of a reasonable excuse for his nonappearance ( see generally Matter of Ariane I. v. David I., 82 A.D.3d 1547, 1548, 919 N.Y.S.2d 252 [2011],lv. denied17 N.Y.3d 703, 929 N.Y.S.2d 94, 952 N.E.2d 1089 [2011];compare Matter of Freedman v. Horike, supra ). “It is well settled that a party cannot appeal from an order entered upon default, the proper procedure being to move to vacate the default and, if necessary, appeal from the denial of that motion” (Matter of Shabazz v. Blackmon, 274 A.D.2d 770, 771, 710 N.Y.S.2d 735 [2000],lv. dismissed95 N.Y.2d 945, 722 N.Y.S.2d 466, 745 N.E.2d 385 [2000] [internal quotation marks and citation omitted]; see Matter of Derek P. v. Doris Q., 92 A.D.3d 1103, 1105, 939 N.Y.S.2d 151 [2012],lv. dismissed and denied19 N.Y.3d 831, 945 N.Y.S.2d 641, 968 N.E.2d 997 [2012];Matter of Scott v. Jenkins, 62 A.D.3d at 1054, 880 N.Y.S.2d 361). Accordingly, the merits of the father's appeals are not properly before us.
We note that one of the father's petitions involved allegations of inadequate visitation during a previous incarceration and another sought custody during a time when he was out of prison. Since he has subsequently returned to prison, these petitions have become largely academic. Petitioner would be well-advised to follow Family Court's suggestion of filing a new petition given his current circumstances.
We briefly address the father's assertion that Family Court lacked subject matter jurisdiction to consider the mother's family offense petition, since an issue regarding subject matter jurisdiction can be raised at any time ( see Manhattan Telecom. Corp. v. H & A Locksmith, Inc., 21 N.Y.3d 200, 203, 969 N.Y.S.2d 424, 991 N.E.2d 198 [2013];Matter of Anstey v. Palmatier, 23 A.D.3d 780, 780, 803 N.Y.S.2d 767 [2005] ). Although Family Court's jurisdiction regarding family offenses has been expanded by the Legislature in recent years ( see e.g. L. 2008, ch. 326, § 7; Matter of Jessica D. v. Jeremy H., 77 A.D.3d 87, 90–91, 906 N.Y.S.2d 119 [2010]; Merril Sobie, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct. Act § 812 at 227–228), for that court to have jurisdiction, the listed acts must nonetheless occur “between spouses or former spouses, or between parent and child or between members of the same family or household” (Family Ct. Act § 812[1]; see Matter of Janet GG. v. Robert GG., 88 A.D.3d 1204, 1205, 931 N.Y.S.2d 746 [2011],lv. denied18 N.Y.3d 803, 938 N.Y.S.2d 861, 962 N.E.2d 286 [2012] ). Here, the bulk of the allegations concerned the father's acts with the mother's child from a different relationship and there were no allegations indicating that such child and the father were “members of the same family or household” as that phrase is statutorily defined ( seeFamily Ct. Act § 812[1][a]-[e] ). However, the petition also included the additional—albeit somewhat conclusory—contention that the father had “threatened other people with a gun in front of [the mother's] children ” (emphasis added), which would necessarily include Febe. While further development of the record may have clarified and perhaps even eroded this contention, it nonetheless provided Family Court a sufficient basis to exercise its jurisdiction to issue a temporary protective order, and the father's willful failure to appear in court has left the contention unchallenged.
ORDERED that the appeals are dismissed, without costs.
STEIN, SPAIN and EGAN JR., JJ., concur.