Opinion
2011-10-4
In the Matter of Hector MORALES, appellant,v.Crystal MARMA, respondent.
Curtis R. Exum, Hauppauge, N.Y. for appellant.
Curtis R. Exum, Hauppauge, N.Y. for appellant.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Genchi, J.), dated October 18, 2010, which denied his objections to an order of the same court (Grier, S.M.), dated August 4, 2010, which denied his motion to vacate an order of support of the same court (Grier, S.M.), dated October 23, 2009, made upon his default in appearing at a hearing.
ORDERED that the order dated October 18, 2010, is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the father's objections to the order dated August 4, 2010, are granted, that order is vacated, the father's motion to vacate the order of support dated October 23, 2009, is granted, and the matter is remitted to the Family Court, Suffolk County, for a hearing and a new determination as to child support.
A party seeking to vacate a default must establish a reasonable excuse for the default and a potentially meritorious defense ( see CPLR 5015[a][1]; Lueders v. Boma–Lueders, 85 A.D.3d 1130, 927 N.Y.S.2d 118; Matter of Petulla v. Petulla, 85 A.D.3d 925, 925 N.Y.S.2d 338). “The question of ‘whether to relieve a party of an order entered on default is a matter left to the sound discretion of the court’ ” ( Matter of Lee v. Morgan, 67 A.D.3d 681, 682, 889 N.Y.S.2d 205, quoting Matter of Fierro v. Fierro, 211 A.D.2d 676, 678, 621 N.Y.S.2d 630). However, “orders entered upon default are disfavored in child support cases” ( Matter of Gabriel v. Cooper, 26 A.D.3d 493, 494, 810 N.Y.S.2d 222; see Matter of Dellagatta v. McGillicuddy, 31 A.D.3d 549, 550, 819 N.Y.S.2d 69; Matter of Patricia J. v. Lionel S., 203 A.D.2d 979, 611 N.Y.S.2d 374; cf. Lueders v. Boma–Lueders, 85 A.D.3d 1130, 927 N.Y.S.2d 118).
An order of support dated October 23, 2009, was entered against the father
on default when, after having arrived at the courthouse for a hearing on the child support petition at 9:00 A.M., and having been told to return at 2:00 P.M., he was minimally late for the afternoon hearing due to traffic. Significantly, the father's failure to appear was not willful or even indicative of a general attitude of neglect, but, rather, he understood his obligation to appear and made substantial efforts to do so. Under these circumstances, the father demonstrated a reasonable excuse for his default ( see Felsen v. Stop & Shop Supermarket Co., LLC, 83 A.D.3d 656, 656–657, 919 N.Y.S.2d 883; Reices v. Catholic Med. Ctr. of Brooklyn & Queens, 306 A.D.2d 394, 761 N.Y.S.2d 285; D'Aniello v. T.E.H. Slopes, 301 A.D.2d 556, 558, 756 N.Y.S.2d 54; Louis v. Louis, 231 A.D.2d 612, 613, 647 N.Y.S.2d 819). Further, the father demonstrated a potentially meritorious defense through his evidence that he became unemployed one month before the hearing, and was earning a minimal salary at the time he moved to vacate the order of support made upon his default.
In addition, the petitioner followed the proper procedure with respect to service of process upon the respondent, whose address was confidential ( see Family Ct. Act § 154–b[2][c] ).
Accordingly, “considering that public policy favors resolution of cases on the merits” ( M.S. Hi–Tech, Inc. v. Thompson, 23 A.D.3d 442, 443, 808 N.Y.S.2d 122; see Mann v. Mann, 149 A.D.2d 669, 671, 540 N.Y.S.2d 309), particularly where proceedings involve issues of child support ( see Matter of Dellagatta v. McGillicuddy, 31 A.D.3d at 550, 819 N.Y.S.2d 69; Matter of Gabriel v. Cooper, 26 A.D.3d at 494, 810 N.Y.S.2d 222), the Family Court should have granted the father's objections to the order denying his motion to vacate his default, and we remit the matter to the Family Court, Suffolk County, for a hearing and new determination as to child support.