Manning v. Sobotka

• Decision Date: 28 June 2013
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of Kathleen S. MANNING, Petitioner–Respondent, v. Stanley P. SOBOTKA, Respondent–Appellant.

107 A.D.3d 1638

969 N.Y.S.2d 627

2013 N.Y. Slip Op. 04930

In the Matter of Kathleen S. MANNING, Petitioner–Respondent,

v.Stanley P. SOBOTKA, Respondent–Appellant.

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

June 28, 2013.

Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Respondent–Appellant.

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ.

MEMORANDUM:

Petitioner mother commenced this proceeding pursuant to article 4 of the Family Court Act based on respondent father's alleged willful violation of a child support order. The Support Magistrate entered an order in favor of petitioner upon respondent's alleged default, and Family Court confirmed that order. As a preliminary matter, we agree with respondent that this appeal is properly before us. Although respondent's brief on appeal focuses on the erroneous determination of the Support Magistrate that respondent had defaulted in his appearance, the order of the Support Magistrate, which recommended commitment, had “no force and effect until confirmed by a judge of the [Family] [C]ourt” (Family Ct. Act § 439[a]; see Matter of Huard v. Lugo, 81 A.D.3d 1265, 1266, 917 N.Y.S.2d 459,lv. denied16 N.Y.3d 710, 2011 WL 1584768). Thus, the order that is on appeal is the order entered by the court and, inasmuch as respondent appeared before the court, that order was not an order entered on his default.

We further agree with respondent that the court erred in confirming the Support Magistrate's order inasmuch as the Support Magistrate erred in finding respondent in default. Althoughrespondent did not appear before the Support Magistrate on the scheduled date for the hearing, his attorney had previously made a written request for an adjournment and appeared in court on the date of the hearing to reiterate that request ( see Matter of Erie County Dept. of Social Servs. v. Thompson, 91 A.D.3d 1327, 1328, 937 N.Y.S.2d 658;Matter of David A.A. v. Maryann A., 41 A.D.3d 1300, 1300, 837 N.Y.S.2d 479). “A party who is represented at a scheduled court appearance by an attorney has not failed to appear” ( Matter of Sales v. Gisendaner, 272 A.D.2d 997, 997, 707 N.Y.S.2d 562;see Erie County Dept. of Social Serv., 91 A.D.3d at 1328, 937 N.Y.S.2d 658). On the date of the scheduled hearing, the Support Magistrate indicated that she had previously decided to grant the adjournment and had scheduled another matter to be heard that day. Apparently, she changed her mind and proceeded to engage petitioner in a colloquy about respondent's failure to pay child support. In response to questioning from the Support Magistrate, petitioner stated that respondent had failed to pay child support, but she acknowledged that respondent...