Dailey v. Govan

• Decision Date: 24 February 2016
• Citation: 136 A.D.3d 1029,26 N.Y.S.3d 173
• Parties: In the Matter of Antoinette M. DAILEY, Appellant, v. Evan GOVAN, Respondent.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1029

26 N.Y.S.3d 173

In the Matter of Antoinette M. DAILEY, Appellant,

v.Evan GOVAN, Respondent.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 24, 2016.

Simpson Thacher & Bartlett LLP, New York, N.Y. (Mary Kay Vyskocil, Nicholas S. Davis, and R. David Gallo ), and Sanctuary for Families Center for Battered Women's Legal Services of counsel), for appellant (one brief filed).

Elliot S. Schlissel, Lynbrook, N.Y. (Andrea E. Miller of counsel), for respondent.

RANDALL T. ENG, P.J., REINALDO E. RIVERA, L. PRISCILLA HALL, and SYLVIA O. HINDS–RADIX, JJ.

Appeal from an order of the Family Court, Queens County (Dennis Lebwohl, J.), dated March 12, 2015. The order, insofar as appealed from, (a) granted certain objections to an order of that court (Sudeep Kaur, S.M.), dated January 21, 2015, which, after a hearing, granted the mother's petition for an upward modification of the father's child support obligation as set forth in an order of support dated December 17, 2009 (Lisa J. Friederwitzer, S.M.), (b) vacated the order dated January 21, 2015, (c), in effect, denied the mother's petition, and (d) reinstated the order of support dated December 17, 2009.

ORDERED that the order dated March 12, 2015, is modified, on the law, (1) by deleting the provision thereof granting the father's objection to so much of the order dated January 21, 2015, as reinstated the mother's petition following its dismissal in 2014, and substituting therefor a provision denying that objection, and (2) by deleting the provision thereof, in effect, denying the petition; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for a new determination of the father's child support obligation in accordance herewith.

The mother and the father in this child support proceeding have two children. In 2004, a support order was entered against the father. The father's support obligation was downwardly modified, on consent, in an order dated December 17, 2009. In February 2013, the mother, pro se, filed a petition for an upward modification of child support. When the mother failed to appear at a calendar call in February 2014, the Support Magistrate dismissed the petition. The same day, the petition was reinstated upon the mother's appearance and oral application, but after the father had left the courthouse. The parties thereafter litigated the merits of the petition, which was granted in an order of the Support Magistrate, dated January 21, 2015.

The father filed objections to the Support Magistrate's order, which included an assertion that the petition was improperly reinstated ex parte in February 2014 and that the Support Magistrate did not have sufficient evidence regarding the mother's income to properly calculate child support pursuant to the Child Support Standards Act (hereinafter CSSA). The Family Court granted those objections, vacated the Support Magistrate's order, in effect, denied the petition, and reinstated the order of support dated December 17, 2009. The mother appeals from these portions of the Family Court's order.

Although the Support Magistrate recited the circumstances of the reinstatement of the petition on the record at the next court appearance following the dismissal and reinstatement, the father made no effort at that time, or during the course of the year in which the merits of the petition were litigated, to register any objection to the ex parte reinstatement of the petition, or to seek relief from this Court. Under the circumstances of this case, by appearing in the proceeding and participating in the support hearing on the merits, the father waived his right to object to the ex parte reinstatement of the petition (see Matter of Stanford v. Job, 113 A.D.3d 782, 783, 979 N.Y.S.2d 135 ; cf. S. Nicolia & Sons Realty Corp. v. A.J.A. Concrete Ready Mix, Inc., 130 A.D.3d 1004, 15 N.Y.S.3d 106; Crystal Clear Dev., LLC v. Devon Architects of N.Y., P.C., 127 A.D.3d 911, 914, 7 N.Y.S.3d 361 ; Casey v. Casey, 39 A.D.3d 579, 579–580, 835 N.Y.S.2d 277 ). Thus, the father's objection to the Support Magistrate's order on that ground should have been denied.

However, the Family Court...