Opinion
526695
05-02-2019
In the Matter of Nathelia M. BOWMAN, Petitioner, v. Jose L. MUNIZ, Appellant.
Youth Represent, New York City (Dale A. Ventura of counsel), for appellant.
Youth Represent, New York City (Dale A. Ventura of counsel), for appellant.
Before: , Clark, Mulvey, Devine and Rumsey, JJ.
MEMORANDUM AND ORDER
Garry, P.J.
Appeal from an order of the Family Court of Albany County (M.Walsh, J.), entered July 14, 2017, which, in a proceeding pursuant to Family Ct Act article 4, denied respondent's objections to the order of a Support Magistrate.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of a child (born in 2007). In April 2016, the mother commenced this proceeding seeking child support. The mother attempted to serve the father by mail, but the mailing was returned to Family Court marked as unclaimed and unable to forward. The father did not appear or answer and, in July 2016, the Support Magistrate issued an order of support on the father's default. The father subsequently moved to vacate the default order, asserting, among other things, that the mother had failed to serve him, that the court lacked personal jurisdiction, and that he was not submitting to the court's jurisdiction by filing the motion. The mother filed no opposition. In April 2017, the Support Magistrate issued an order that vacated the July 2016 order of support on the ground that "personal jurisdiction was not obtained over [the father] when the order of support was issued." Despite this determination, the order erroneously restored the mother's petition to the calendar and scheduled a subsequent appearance. Neither the father nor his counsel appeared, and the Support Magistrate issued a second default order restoring the July 2016 order, effective as of the proceeding's commencement date in April 2016.
The father filed objections to the second default order in Family Court, contending that the court never obtained personal jurisdiction and requesting vacatur of the second order and all accrued arrears as well as dismissal of the petition. The court denied the objections without prejudice on the basis that the order was entered on default and, as such, the father's remedy was to move before the Support Magistrate to vacate the order. The father appeals.
The mother did not file a brief or otherwise participate in the appeal.
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Family Court erred in denying the father's objections. As the court stated, the proper procedure for challenging an order of child support entered on default is ordinarily to move to vacate the order before the Support Magistrate and then, if necessary, to file objections from the denial of that motion (see Family Ct. Act § 439[e] ; Matter of Delong v. Bristol, 117 A.D.3d 1566, 1566, 984 N.Y.S.2d 916 [2014], lv denied 24 N.Y.3d 909, 2014 WL 6433277 [2014] ; Matter of Reaves v. Jones, 110 A.D.3d 1276, 1277, 975 N.Y.S.2d 186 [2013] ). Here, however, the father had already properly followed that procedure in challenging the July 2016 child support order and had obtained an order vacating the support order on the ground that personal jurisdiction had never been obtained. Upon making such a determination, a court "must vacate [a default] judgment absolutely, and may not impose terms and conditions upon the vacatur" ( McMullen v. Arnone, 79 A.D.2d 496, 499, 437 N.Y.S.2d 373 [1981] ; see Hitchcock v. Pyramid Ctrs. of Empire State Co., 151 A.D.2d 837, 839, 542 N.Y.S.2d 813 [1989] ). The first order of support and all subsequent proceedings were nullified by the determination that there was no personal jurisdiction, and the Support Magistrate had no further authority (see State of New York Higher Educ. Servs. Corp. v. King, 232 A.D.2d 842, 843, 648 N.Y.S.2d 797 [1996] ; Community State Bank v. Haakonson, 94 A.D.2d 838, 839, 463 N.Y.S.2d 105 [1983] ).
For the same reasons, Family Court was required to dismiss the petition. The undisputed record supports the Support Magistrate's determination that personal jurisdiction over the father was never obtained. Proper service, which may be accomplished by mail in child support proceedings, must be effected to obtain personal jurisdiction over a respondent (see Family Ct Act §§ 427, 453[b], [c] ; Matter of Mary A.G. v. Ira T.B., 157 A.D.3d 951, 952, 70 N.Y.S.3d 529 [2018] ; Matter of H. v. M., 47 A.D.3d 629, 630, 850 N.Y.S.2d 480 [2008] ; Matter of Sutton v. Mundy, 24 A.D.3d 1128, 1129, 807 N.Y.S.2d 185 [2005] ). Here, the mother did not oppose or contradict the father's assertion that he was not served, the Support Magistrate acknowledged in correspondence with the father's counsel that the original summons and petition had been returned to the court marked unclaimed, the envelope with that marking was submitted as an exhibit, and nothing in the record indicates that service was made upon the father in some other manner. The court thus had no jurisdiction over the father and no authority to do anything but dismiss the petition. Accordingly, the second order of support must be vacated and the petition dismissed (see Matter of Keith X. v. Kristin Y., 124 A.D.3d 1056, 1058, 2 N.Y.S.3d 268 [2015], lv denied 25 N.Y.3d 907, 2015 WL 2237602 [2015] ; Matter of Psyllos v. Psyllos, 21 A.D.3d 560, 560, 799 N.Y.S.2d 903 [2005] ; Community State Bank v. Haakonson, 94 A.D.2d at 839, 463 N.Y.S.2d 105 ).
Clark, Mulvey, Devine and Rumsey, JJ., concur.
ORDERED that the order is reversed, on the law, without costs, said order vacated and petition dismissed.