Roshia v. Thiel

• Decision Date: 04 October 2013
• Citation: 972 N.Y.S.2d 804,2013 N.Y. Slip Op. 06486,110 A.D.3d 1490
• Parties: In the Matter of Starr L. ROSHIA, Petitioner–Respondent, v. Christopher J. THIEL, Respondent–Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 1490
972 N.Y.S.2d 804
2013 N.Y. Slip Op. 06486

In the Matter of Starr L. ROSHIA, Petitioner–Respondent,
v.
Christopher J. THIEL, Respondent–Appellant.
(Appeal No. 1.).

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

Oct. 4, 2013.

[972 N.Y.S.2d 805]

Jennifer M. Lorenz, Lancaster, for Respondent–Appellant.

Michael A. Siragusa, County Attorney, Buffalo (Kristen M. Maricle of Counsel), for Petitioner–Respondent.

PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO AND WHALEN, JJ.

MEMORANDUM:

In appeal No. 1, respondent father appeals from an order denying his objections to the order of the Support Magistrate, which denied his motions to vacate the underlying support order entered upon his default and to cap his unpaid child support arrears at $500 pursuant to Family Court Act § 413(1)(g). In appeal No. 2, the father appeals from an order confirming the Support Magistrate's determination that he willfully failed to obey the support order and, in appeal No. 3, the father appeals from an order that committed him to a term of incarceration of three months.

We reject the father's contention in appeal No. 1 that Family Court erred in denying his objections to the Support Magistrate's order insofar as it denied his motion to vacate the underlying support order entered upon his default. Although default orders are disfavored in cases involving

[972 N.Y.S.2d 806]

the custody or support of children, and thus the rules with respect to vacating default judgments are “ ‘not to be applied as rigorously’ ” in those cases (Matter of Troy D.B. v. Jefferson County Dept. of Social Servs., 42 A.D.3d 964, 965, 839 N.Y.S.2d 877;see Matter of Gabriel v. Cooper, 26 A.D.3d 493, 494, 810 N.Y.S.2d 222;Matter of Patricia J. v. Lionel S., 203 A.D.2d 979, 979, 611 N.Y.S.2d 374), “that policy does not relieve the defaulting party of the burden of establishing a reasonable excuse for the default” ( Calle v. Calle, 28 A.D.3d 1209, 1209, 812 N.Y.S.2d 925). Here, the father's proffered excuse for the default was that he and the child's mother agreed that neither of them would pay child support for either child of their marriage, and he therefore did not appear in court because he believed that the court proceedings to determine his child support obligation were scheduled in error. That excuse is not reasonable, considering that the father consistently paid child support for the subject child, as directed by the underlying support order, for two years after the order was entered.

The father also has not demonstrated that he has a...