Opinion
2022–06719 Docket No. V–18069–17/21
11-08-2023
In the Matter of Esther Walker OTERO, respondent, v. Deishawn F. WALKER, appellant.
Salvatore C. Adamo, New York, NY, for appellant. Darla A. Filiberto, Islandia, NY, for respondent. Geanine Towers, Brooklyn, NY, attorney for the child.
Salvatore C. Adamo, New York, NY, for appellant.
Darla A. Filiberto, Islandia, NY, for respondent.
Geanine Towers, Brooklyn, NY, attorney for the child.
COLLEEN D. DUFFY, J.P., JOSEPH J. MALTESE, JANICE A. TAYLOR, LOURDES M. VENTURA, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Alfred C. Graf, J.), dated June 17, 2022. The order, upon the father's failure to appear at a hearing, and upon the denial of the application of the father's attorney to set the matter down for an inquest, granted the mother's petition to modify an order of the same court (Kerri N. Lechtrecker, Ct. Atty. Ref.) dated December 11, 2017, so as to award her sole legal and residential custody of the subject child.
ORDERED that the appeal is dismissed, without costs or disbursements, except insofar as it brings up for review the denial of the application of the father's attorney to set the matter down for an inquest (see CPLR 5511 ; Katz v. Katz, 68 A.D.2d 536, 418 N.Y.S.2d 99 ); and it is further,
ORDERED that the order dated June 17, 2022, is reversed insofar as reviewed, on the law and in the exercise of discretion, without costs or disbursements, the application of the father's attorney to set the matter down for an inquest is granted, the determination granting the mother's petition is vacated, and the matter is remitted to the Family Court, Suffolk County, for further proceedings in accordance herewith, to be held with all convenient speed; and it is further,
ORDERED that in the interim, and pending the new determination, the provisions of the order dated June 17, 2022, regarding the legal and residential custody of the child and parental access, shall remain in effect.
The parties are the parents of the subject child of this proceeding. Pursuant to an order dated December 11, 2017 (hereinafter the prior order), entered upon consent, the parties were awarded joint legal custody of the child, with residential custody awarded to the mother and parental access to the father at such times as agreed between the parties. In April 2021, the mother commenced this proceeding pursuant to Family Court Act article 6 to modify the prior order so as to award her sole legal and residential custody of the child.
On June 17, 2022, the father failed to appear for a hearing, and his attorney made an application to set the matter down for an inquest on the mother's petition. The Family Court denied the application. In an order dated June 17, 2022, the court granted the mother's petition upon the father's default. The father appeals.
Where an order is made upon a party's default, review is limited to matters which were the subject of contest in the Family Court (see Matter of Anastasia N.A. [Latonia J.], 218 A.D.3d 563, 564–565, 192 N.Y.S.3d 575 ; Matter of Vallencia P. [Valdissa R.], 215 A.D.3d 850, 851, 186 N.Y.S.3d 383 ). Accordingly, in this case, review is limited to the denial of the application of the father's attorney to set the matter down for an inquest.
"A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record" ( Matter of Sims v. Boykin, 130 A.D.3d 835, 836, 13 N.Y.S.3d 514 ; see Matter of Hogan v. Smith, 206 A.D.3d 808, 810, 168 N.Y.S.3d 335 ). Generally, the court's determination should be made only after "a full and plenary hearing and inquiry" ( S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411, 56 N.E.3d 193 [internal quotation marks omitted]; see Matter of Ling Da Chen v. Yue Hua Zhou, 39 A.D.3d 753, 753, 835 N.Y.S.2d 281 ), or, where a party failed to appear, after an inquest (see e.g. Matter of Jones v. Spain, 188 A.D.3d 1209, 1209, 132 N.Y.S.3d 881 ; Matter of Rivera v. Diaz, 185 A.D.3d 695, 695, 124 N.Y.S.3d 846 ).
Here, the Family Court granted the mother's petition to modify the prior order, upon the father's default, without receiving any testimony or other evidence, despite the fact that the father's attorney proffered a reasonable explanation for the father's absence and that the father did not have a history of missing court dates (cf. Matter of Anastasia N.A. [Latonia J.], 218 A.D.3d at 565, 192 N.Y.S.3d 575 ). Under the circumstances, the court improvidently exercised its discretion in denying the application of the father's attorney to set the matter down for an inquest (see Matter of Williams v. Worthington, 194 A.D.3d 825, 826, 143 N.Y.S.3d 910 ; see generally Matter of Vidal v. Mintzer, 309 A.D.2d 756, 758, 765 N.Y.S.2d 385 ; Saborio v. Saborio, 147 A.D.2d 468, 469, 537 N.Y.S.2d 572 ).
Accordingly, we reverse the order dated June 17, 2022, insofar as reviewed, grant the application of the father's attorney to set the matter down for an inquest, vacate the determination granting the mother's petition, and remit the matter to the Family Court, Suffolk County, for an inquest and a new determination thereafter of the mother's petition.
DUFFY, J.P., MALTESE, TAYLOR and VENTURA, JJ., concur.