Linger v. Linger

• Decision Date: 11 May 2017
• Citation: 150 A.D.3d 1444,55 N.Y.S.3d 760
• Parties: In the Matter of Clint L. LINGER, Respondent, v. Kirsten R. LINGER, Appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1444
55 N.Y.S.3d 760

In the Matter of Clint L. LINGER, Respondent,
v.
Kirsten R. LINGER, Appellant.

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

May 11, 2017.

55 N.Y.S.3d 761

Michelle I. Rosien, Philmont, for appellant.

James G. Cushman, Norwich, for respondent.

Charles E. Lupia, Syracuse, attorney for the child.

Before: McCARTHY, J.P., GARRY, EGAN JR., ROSE and MULVEY, JJ.

GARRY, J.

Appeal from an order of the Family Court of Chenango County (Revoir Jr., J.), entered May 3, 2016, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, to modify a prior order of custody and visitation.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of one child (born in 2005). In January 2016, the parties consented to an order by which they shared joint legal custody and the mother had primary physical custody. In February 2016, with the father's consent, the mother relocated with the child to South Carolina. In April 2016, the father moved by order to show cause for an order granting him temporary physical custody of the child, on the ground that the mother had relocated again to Florida and had left the child in South Carolina in the care of her paramour, who had then sent the child to New York to live with the father. Family Court signed an amended order to show cause that awarded temporary physical custody to the father pending resolution of the matter, and scheduled a return date for an appearance. Upon that date, the mother did not appear, but counsel appeared on her behalf. Family Court declared the mother in default and issued a final order of custody that awarded primary physical placement of the child to the father and provided parenting time to the mother as agreed upon between the parties. The mother appeals.

In the circumstances presented, the mother was not required to seek to vacate the default judgment before taking this appeal. A party may not appeal from an order entered on default (see CPLR 5511 ), but a party's absence does not necessarily constitute a default, "particularly where counsel appears upon the absent party's behalf and offers an explanation for his or her failure to attend" (Matter of Derek P. v. Doris Q., 92 A.D.3d 1103, 1105, 939 N.Y.S.2d 151 [2012], lv. dismissed and denied 19 N.Y.3d 831, 945 N.Y.S.2d 641, 968 N.E.2d 997 [2012] ; see Matter of Freedman v. Horike, 107 A.D.3d 1332, 1333, 969 N.Y.S.2d 193 [2013] ; Matter of Scott v. Jenkins, ...