Summary
In Matter of Oswego County Support Collection Unit v Richards (305 AD2d 1101, 1101, lv denied 100 NY2d 637), we determined that, because the respondent failed to file objections to the Hearing Examiner's order finding willfulness and recommending commitment pursuant to Family Court Act § 439 (former [e]), he "waiv[ed] his right to appellate review of the finding of a willful violation."
Summary of this case from In re HuardOpinion
CAF 02-01985
May 2, 2003.
Appeal from an order of Family Court, Oswego County (Roman, J.), entered June 3, 2002, which committed respondent to the Oswego County Correctional Facility for a term of 90 days, to be served on an intermittent basis.
ERIC TOHTZ, OSWEGO, FOR RESPONDENT-APPELLANT.
BRUCE N. CLARK, COUNTY ATTORNEY, OSWEGO (JAMES K. EBY OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, SCUDDER, BURNS, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Contrary to the contention of respondent, he was not denied his right to a hearing to present evidence that his failure to obey a support order was not willful. The record establishes that respondent was given proper notice of the hearing before the Hearing Examiner and failed to appear to present evidence, and thus "[j]urisdiction was properly vested in * * * Family Court" ( Matter of Louie v. Ong, 211 A.D.2d 495, 495). Moreover, respondent failed to file written objections to the Hearing Examiner's order within the statutorily prescribed 30 days, thus waiving his right to appellate review of the finding of a willful violation ( see Family Ct Act 439 [e]; see also Louie, 211 A.D.2d 495; Matter of Werner v. Werner, 130 A.D.2d 754). Contrary to the further contention of respondent, the court did not enter an order of commitment in violation of Family Ct Act 453(c); the order was not "entered upon the default in appearance by the respondent" at the hearing before the Hearing Examiner (453 [c]), but was entered after respondent appeared in court subsequent to that hearing ( see 453 [b]). We have examined respondent's remaining contentions and conclude that they are lacking in merit.