Proctor-Shields v. Shields
| Decision Date | 29 June 2010 |
| Parties | In the Matter of Christine PROCTOR-SHIELDS, respondent, v. John SHIELDS, appellant. |
| Court | New York Supreme Court — Appellate Division |
74 A.D.3d 1347
In the Matter of Christine PROCTOR-SHIELDS, respondent,
v.
John SHIELDS, appellant.
Supreme Court, Appellate Division, Second Department, New York.
June 29, 2010.
Jeffrey S. Schecter & Associates, P.C., Garden City, N.Y. (Kara K. Miller of counsel), for appellant.
O'Rourke & Hansen, PLLC, Hauppauge, N.Y. (James J. O'Rourke of counsel), for respondent.
MARK C. DILLON, J.P., HOWARD MILLER, RANDALL T. ENG, and CHERYL E. CHAMBERS, JJ.
In a support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Genchi, J.), dated June 11, 2009, which denied his objections to an order of the same court (Grier, S.M.), dated March 30, 2009, which denied his motion, inter alia, to vacate an order of the same court dated August 26, 2008, entered upon his default, granting the mother's petition for an award of child support.
ORDERED that the order dated June 11, 2009, is affirmed, with costs.
This Court has adopted a liberal policy with respect to vacating defaults entered
as to child support "because the state's interest in the marital res and related issues such as child support and custody favors dispositions on the merits" ( Matter of Pinto v. Putnam County Support Collection Unit, 295 A.D.2d 350, 351, 743 N.Y.S.2d 521). Nonetheless, it remains incumbent upon a movant to demonstrate a reasonable excuse for his default in opposing an application and to demonstrate the existence of a potentially meritorious defense to that application ( see CPLR 5015[a][1]; Diaz v. Diaz, 71 A.D.3d 947, 896 N.Y.S.2d 891; Matter of Armstrong v. Doby, 69 A.D.3d 933, 892 N.Y.S.2d 794).The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Family Court ( see Young Chen v. Ruihua Li, 67 A.D.3d 905, 906, 888 N.Y.S.2d 412). Although the father of the subject children admitted that he was aware of the subject court appearance, he claimed that he failed to appear because he relied upon the assurance of the mother that she would secure an adjournment. The mother denied that she agreed to an adjournment. The Support Magistrate's resolution of this credibility issue is entitled to great deference, and it was not an improvident exercise of the Support Magistrate's discretion to find this excuse unreasonable ( see Matter of Tsarova v. Tsarov, 59 A.D.3d 632, 633, 875 N.Y.S.2d 84). Thus, since the...
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