Thomas v. Francis

• Decision Date: 30 September 2020
• Docket Number: 2019–10744,Docket No. F–1005–15
• Citation: 129 N.Y.S.3d 802 (Mem),186 A.D.3d 1696
• Parties: In the Matter of Laurel THOMAS, respondent, v. Clinton FRANCIS, appellant.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 1696

129 N.Y.S.3d 802 (Mem)

In the Matter of Laurel THOMAS, respondent,

v.Clinton FRANCIS, appellant.

2019–10744

Docket No. F–1005–15

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

Submitted—September 8, 2020

September 30, 2020

Clinton Francis, Tucker, Georgia, appellantpro se.

Laurel Thomas, Elmont, NY, respondentpro se(no brief filed).

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County(Conrad D. Singer, J.), dated August 12, 2019.The order denied the father's objections to an order of the same court(Lisa M. Williams, S.M.) dated June 12, 2019, which, after a hearing, and upon findings of fact also dated June 12, 2019, denied his motion to vacate his default in appearing or answering the petition.

ORDERED that the order dated August 12, 2019, is affirmed, without costs or disbursements.

The mother commenced this support proceeding against the father in January 2015.In March 2015, after the father failed to appear or answer the petition, the Support Magistrate issued an order of child support upon his default.In an order dated December 27, 2018, the Support Magistrate denied the father's motion to vacate the order of child support.The father filed objections to the order dated December 27, 2018, contending, inter alia, that he was living and working in Louisiana on the alleged date of service of the petition.In February 2019, the Family Court granted the father's objections to the extent of vacating the order dated December 27, 2018, and remitting the matter to the Support Magistrate to conduct a hearing to determine the validity of service of process.

After the hearing, in an order dated June 12, 2019, the Support Magistrate denied the father's motion to vacate.The father filed objections to the order dated June 12, 2019, and the Family Court denied those objections in an order dated August 12, 2019.The father appeals.

"At a hearing to determine the validity of service of process, the burden of proving personal jurisdiction is upon the party asserting it, and that party must sustain that burden by a preponderance of the credible evidence"( Grand Pac. Mtge. Corp. v. Pietranski,175 A.D.3d 1503, 1505, 109 N.Y.S.3d 158;seeMatter ofErika G. v. Jason B., 184 A.D.3d 639, 639–640, 123 N.Y.S.3d 527 )." ‘[T]he burden of proof does not shift during the hearing.Rather it rests at all times upon the ... petitioner’ "( Matter ofErika G. v. Jason B., 184 A.D.3d at 640, 123 N.Y.S.3d 527, quotingMatter ofMary A.G. v. Ira T.B., 157 A.D.3d 951, 952, 70 N.Y.S.3d 529[internal quotation marks omitted] )."[T]he credibility determinations of the hearing court are entitled to great deference on appeal and will not be disturbed unless they are against the weight of the credible evidence"( Jhang v. Nassau Univ. Med. Ctr.,140 A.D.3d 1018, 1019, 35 N.Y.S.3d 360;seeMatter ofErika G. v. Jason B., 184 A.D.3d at 640, 123 N.Y.S.3d 527 ).

Here, the record demonstrates that the mother met her burden of establishing, by a preponderance of the evidence, that she properly effectuated personal service (seeMatter of Erika G. v. Jason B.,184 A.D.3d at 640, 123 N.Y.S.3d 527;Bank of Am., N.A. v. Budhan,171 A.D.3d 622, 622, 99 N.Y.S.3d 264;SDF7 Richmond, LLC v. Rich–Nich Realty, LLC,132 A.D.3d 838, 839, 17 N.Y.S.3d 881;Matter ofIhim v. Ihim, 102 A.D.3d 694, 956 N.Y.S.2d 907;King v. Gil,69 A.D.3d 678, 891 N.Y.S.2d 655 ).The Support Magistrate's determination that the testimony of the process server and the mother was more credible than the testimony of the father...