Opinion
No. 2385 Docket No. U-15558-19 Case No. 2023-01801
05-30-2024
In the Matter of Yakov T., Petitioner-Respondent, v. Tracy S., Respondent-Appellant.
Larry S. Bachner, New York, for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Amy McCamphill of counsel), for respondent.
Larry S. Bachner, New York, for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Amy McCamphill of counsel), for respondent.
Before: Manzanet-Daniels, J.P., Friedman, Kapnick, Gesmer, Rosado, JJ.
Order, Family Court, New York County (Jonathan H. Shim, J.), entered on or about February 22, 2023, which denied respondent mother's objections to the order of the same court (Amanda Norejko, Support Magistrate), entered on or about December 23, 2022, which determined that the mother's child support obligation for the period between November 4, 2019 and December 31, 2020 was $68 per month, and $633 per month commencing from January 1, 2021, and set the retroactive support amount at $15,515.56, unanimously affirmed, without costs.
Family Court properly determined that the mother was barred from challenging the dismissal of her alienation affirmative defense, which was entered on her default. Although a party's failure to appear at the hearing may not automatically result in a default, particularly where the absent party had an attorney who appeared, explained the client's absence, and stated that he or she was authorized to proceed in the party's absence, this is not the case here (see Matter of Aaron C. [Grace C.], 105 A.D.3d 548, 549 [1st Dept 2013]). The record shows that, although the mother's attorney was present on June 7, she informed the court that she had not been in contact with the mother, save for a single call the prior day at which time the mother told her that she would not be appearing in court the next day, and requested to be relieved.
The mother's claim that she was unaware that she needed to appear for the hearing on June 7 is not a reasonable excuse for her default (CPLR 5015[a][1]; see Matter of Natalya M. v Chanan M., 170 A.D.3d 587, 587 [1st Dept 2019], lv dismissed & denied 34 N.Y.3d 971 [2019]). The record demonstrates that she and her attorney were present in court when the date was selected (see Matter of Kerry L. v Chantelle Monique J., 209 A.D.3d 585, 585 [1st Dept 2022]). Furthermore, the mother presented no evidence as to what measures she took to ensure that she was kept apprised as to when the hearing would commence or to confirm that the hearing was still scheduled on June 7 by contacting her attorney or the court (see Matter of Natalia M. v Odane S., 172 A.D.3d 597, 597 [1st Dept 2019]). Moreover, the record is clear that the mother knew that the hearing was set to move forward on June 7 because she was advised of this fact by her attorney.
Family Court properly determined that the mother failed to demonstrate a meritorious defense, as an alienation defense is not available in proceedings under the Uniform Interstate Family Support Act. Family Court Act § 580-305(d) expressly bars the court, as a responding tribunal, from conditioning the payment of support based on the party's compliance with visitation orders (see Matter of Nicholas A. v Jessica T., 65 Misc.3d 365 [Fam Ct, Chemung County 2019]).
We have considered the mother's remaining arguments and find them unavailing.